October 28, 2020 4:26PM

Judge: Seattle’s Aid To Protest Zone Might Have Been a Taking

Ordinarily you can’t sue the government for failing to protect you from private criminal actors. But a federal judge has allowed a suit to go forward filed by business owners against the city of Seattle over injuries done by far‐​left activists who seized 16 blocks this June and proclaimed a weeks‐​long “autonomous zone” (CHOP or CHAZ).

Law professor Ilya Somin writes that he initially approached the case with skepticism, but was surprised to find it stronger than expected. The reason: the plaintiffs argue that the city did not merely stand by passively, but assisted the occupiers by letting them use city property such as street barriers which hindered the plaintiffs from enjoying free access to their businesses and homes. Because the city government had taken many affirmative steps to assist the occupation, as contrasted with omissions, the episode could be interpreted as a temporary taking of property for which compensation is due. (The judge also allowed two due process claims to proceed.) 

Of course, being allowed to proceed is not the same thing as proving a case at trial. At this motion to dismiss stage, the judge has not heard the city’s version of events and is construing the pleadings in the light most favorable to plaintiffs. It also isn’t clear there’s very much recent precedent on point, if only because it is unusual to the point of being extraordinarily for a modern American city to cooperate in such a scheme for so long. Still, writes Somin: “If the plaintiffs’ account of events is largely accurate, it reveals terrible behavior by city officials (as well as by the CHOP activists). That is deeply troubling even if the city cannot be held legally liable under the Takings Clause.”