The Takings Clause and Government Destruction of Homeless Persons’ Property

Co-blogger Orin Kerr comments on the Ninth Circuit’s recent decision holding that a Los Angeles policy allowing the seizure of briefly unattended property belonging to the homeless violates the Fourth Amendment’s ban on “unreasonable” seizures. It’s worth noting that the policy also violates the Takings Clause of the Fifth Amendment, which requires government to pay “just compensation” when it takes private property for “public use.”

In this case, the government not only seized the property, but also destroyed it after seizure. Cases going back to the nineteenth and early twentieth centuries hold that government destruction of private property qualifies as a taking requiring just compensation. For example, the government must compensate property owners whose property is destroyed by flooding caused by a government-constructed dam. This is consistent with text and original meaning as well as precedent. An officially authorized seizure of property by government agents without any intention of ever returning it surely qualifies as a taking. And if the property is subsequently destroyed at the order of the state, it surely qualifies as a “public use.” As the Supreme Court put it in an often-cited 1871 case:

It would be a very curious and unsatisfactory result if in construing a provision of constitutional law always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.

Some court decisions recognize exceptions to this rule, as for example when the armed forces destroy property in time of war for reasons of military necessity. But no such exceptions apply here. The property seized from the homeless people did not pose any threat to public safety and its destruction wasn’t required by any military necessity or similar emergency.

The district court opinion does not make clear whether the property owners have asserted a claim for just compensation. When and if they do, the property owners deserve to win.

This situation is just one of many examples of how, contrary to conventional wisdom, judicial enforcement of constitutional property rights benefits the poor as much or more so than the wealthy. Rarely if ever would local governments engage in comparable uncompensated destruction of property belonging to the wealthy or the middle class.

UPDATE: I would note that, according to filings available on Westlaw, the plaintiffs have apparently filed claims for compensation under various state law causes of action. If they win, they may not be entitled to any additional compensation under the Takings Clause. Be that as it may, it’s worth noting that the Takings Clause also requires compensation in such cases.

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