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Eager to spark the socialist revolution, left-wing activistsseized Ramsett Park and the surrounding area and declared anindependent autonomous community dedicated to social and economicjustice. The activists threw up barricades and excluded both thepolice and the "bourgeoisie" owners of businessessurrounding the park. Fearing a primary challenge, Mayor Gundersonordered the police to withdraw from the area except forlife-or-death situations. As days turned into weeks, the areareverted to a Hobbesian state, with violence increasing and refugeaccumulating in the street. Mayor Gunderson belatedly ordered thearea cleared. When the business owners returned, they found theirbuildings vandalized and their property stolen or destroyed. Theylook to hold someone responsible. But the activists havedisappeared, and, in any event, hippies are notoriously judgmentproof. Can Mayor Gunderson and the City be held liable for notenforcing the law?

While that hypothetical may have appeared bizarre and improbablelast year, astrikinglysimilar situationoccurred in Seattle in June, asactivists seized control of a sixteen-block area that came to beknown as the Capitol Hill Organized Protest ("CHOP")Zone. Seattle did not order the police to clear the area for threeweeks, during which there was extensive violence and propertydamage. At the end of June, local businesses and property owners inthe CHOP area sued Seattle to recover for the damages they sufferedand the temporary loss of their businesses and land.

Last month, a federal judge in Washingtonheldthat the lawsuit could proceed and that the propertyowners had pled enough facts to show potential violations of theFourteenth Amendment's Due Process Clause (which prohibits thegovernment from depriving individuals of "property without dueprocess of law") and Fifth Amendment's Takings Clause(which states that "private property [may not] be taken forpublic use without just compensation"). This post will examinehow those claims would fare in Texas.

Successfully suing a city in Texas for violating the Due ProcessClause would be difficult. In 1989, the Supreme Courtheldthat the Clause generally does not require thegovernment to "protect the life, liberty, and propertyinterests of its citizens from invasion by private actors. In otherwords, the Clause's "purpose was to protect people fromthe State, not to ensure that the State protected them from eachother."

However, one exception to that general rule is the so-called"state-created danger" doctrine, under which thegovernment can be held liable for violating the Due Process Clauseif it created or increased the danger to the injured individual.The Supreme Court hasneverrecognizedthis doctrine. The Fifth Circuit hasnoteither and, in fact, has created such a stringent testthat it has never found a set of facts that could satisfy it. Underthattest, the plaintiff must show:

Even assuming that the Fifth Circuit would recognize thestate-created danger doctrine, the business owners in ourhypothetical probably could not satisfy it. First, the City did nottake an affirmative step to create the danger or make the businessowners more vulnerable to it. It was an omission, rather than anact of commission. And, if the government had no hand in bringingabout the peril but "simply stood by and did nothing whensuspicious circumstances dictated a more active role, it cannot beheld liable." Second, it is doubtful that the business ownersare "known victims" under the Fifth Circuit's test.That court hasheldthat the state-created danger doctrine does notextend to any foreseeable victim, because "increasing the riskof harm to unidentified and unidentifiable members of the public...is not sufficiently willful and targetedtoward specific harm to remove the case into the domain ofconstitutional law."

In contrasts, the Ninth Circuit hasrecognizedthe state-created danger doctrine, and thecourt in the Seattle "CHOP" case held that the Plaintiffshad pled enough facts to satisfy it. It concluded thatSeattle's alleged "actionsencouraging CHOPparticipants to wall of the area and agreeing to a 'noresponse' zone within and near CHOP'sbordersforeseeably placed Plaintiffs in a worse positionthan they would have been in absent any City interventionwhatsoever."

The distinction between commissions and omissions isalsocriticalto the business owners' likelihood ofprevailing under the Takings Clause. When the government takesprivate property, it must pay "just compensation," thatis, the property's fair market value. The Supreme Courthasheldstatedthat a temporary takings claim can be maintained when thegovernment's action occurring outside the property gives riseto "a direct and immediate interference with the enjoyment anduse of the land." And, once the government has worked a takingof the property, "no subsequent action by the government canrelieve it of the duty to provide compensation for the periodduring which the taking is effective."

That being said, the Takings Clause requires compensation onlyif the property is taken by the government, not a third party. Forexample, the government is not liable under the Takings Clause if athief steals a car, even if the government could have done a betterjob of deterring the theft by erecting more street lights orincreasing the amount of police patrols.

But providing authority or assistance to that third partychanges the result. State governments have granted the power ofeminent domain on private companies, such as railroads andtelecommunication providers. Local governments have also seizedproperty themselves andtransferreditto private companies to promote "economic development."Whether the latter transfers are for "a public use"isdebatable(anddoubtful). But they are unquestionably takings for which thegovernment is required to provide "justcompensation."

The hypothetical above and the Seattle "CHOP" casefall between the government seizing property itself andtransferring it to a third party and the government merely failingto prevent theft of and trespass on private property. In thehypothetical, a claim under the Takings Clause would likely notsucceed because the City provided no assistance to theactivists.

On the other hand, the court in the Seattle "CHOP"case held that the Taking Claim was viable because the propertyowners had pled facts indicating that Seattle's"endorsement of, and the provision of material support to CHOPset in a motion a series of acts by certain CHOP participants, whothe City knew or reasonably should have known would deprivePlaintiffs of their protected property interest."Specifically, the Plaintiffs pointed out that Seattle had provided"medical equipment, washing/sanitation facilities, portabletoilets, nighttime lighting, and other material support." AndSeattle's mayor tweeted her support for the activists andinfamously predicted a "summer of love" in the area. Based on those facts, thecourt held that the City might be liable under the Takings Clause.While the Plaintiffs have not won the merits, the case is one towatch.

The situation in Seattle is undoubtedly an extreme situation,but it is an important reminder that the usual recourse for thegovernment's failure to enforce its laws is political, ratherthan legal. The Seattle "CHOP" case could begroundbreaking if the Plaintiffs ultimately prevail. Regardless ofits outcome, property owners should not rely solely on thegovernment to protect their property but rather make sure that theyare adequately insured against property damage and theft.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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