Archive for the ‘Section 1983’ Category

Due Process rights for property owners live again in the 9th Circuit

Thursday, November 1st, 2007

Since 1996, property owners in the 9th Circuit have not been able to state a claim for violation of due process based on regulations claimed to be irrational.  That was the year that the court issued its en banc decision in Armendariz v. Penman, 74 F.3d 1311 (9th Cir. 1996), holding that such claims were covered by the Takings Clause of the Fifth Amendment and therefore could not form the basis of a substantive due process claim.

Two years ago, however, the United States Supreme Court ruled in Lingle v. Chevron, 544 U.S. 528 (2005), that an allegation that a local property regulation failed to “substantially advance a legitimate government interest” was a due process, rather than a Takings, claim.

Today, the 9th Circuit caught up to this ruling by the Supreme Court.  In Crown Point Development v. City of Sun Valley, the 9th Circuit recognized that a property owner’s claim that government regulation of property is irrational is not a claim that can be stated under the Takings Clause.  Thus, the court recognized that its decision in Armendariz can no longer be used to prevent property owners from stating a cause of action based on violation of substantive due process rights.

Congratulations to my former colleague at Pacific Legal Foundation, Dave Breemer, for his victory in this case.  [NOTE:  The Court’s criticism of Crown Point for failing to make the argument based on Lingle in the District Court does not apply to Dave — he did not take over representation until after the District Court had issued its decision.]

LA Sheriffs Do Not “Qualify” for Immunity

Wednesday, August 1st, 2007

When state or local officials are sued for violating Section 1983, they can establish “qualified immunity” by showing that their actions were not in violation of clearly established rights.  As the court in this case noted, “an officer is not liable for his ‘reasonable mistakes.’”

The question for the court in Venegas v. Los Angeles, is whether that same doctrine of qualified immunity shields local law enforcement from suit under California Civil Code §52.1.  That section was adopted as part of a package of laws to combat hate crimes, and provides for equitable relief or damages for interfering with the exercise or enjoyment of rights under either the state or the federal constitutions.

After examining the history of Section 1983 and the state law, the court declined to create a doctrine of “qualified immunity” for violations of the state law.  Adding a new immunity is a task for the Legislature, according to the court.  As the court noted, “there is abundant evidence showing that if the California Legislature wanted to immunize police officers from liability for unreasonable searches based on reasonable mistakes it knew how to say so.”