holding plaintiffs stated a claim not subject to qualified immunity where they alleged defendants summarily deprived plaintiffs of property rights without a hearing and despite their knoivledge that no emergency actually existed, as it “would not have been reasonable for [defendants] to claim there was an emergency when they knew that there was no emergency”
How later courts described this case
- holding plaintiffs stated a claim not subject to qualified immunity where they alleged defendants summarily deprived plaintiffs of property rights without a hearing and despite their knoivledge that no emergency actually existed, as it “would not have been reasonable for [defendants] to claim there was an emergency when they knew that there was no emergency”
- holding that the rationale for permitting emergency deprivations does not apply “where the officials know no emergency exists, or where they act with reckless disregard of the actual circumstances”
- “[T]he rationale for permitting government officials to act summarily in emergency situations does not apply where the officials know no emergency exists, or where they act with reckless disregard of the actual circumstances.”
- “[A]ny government action which ‘has no substantial relation to the public health, safety, morals, or general welfare’ is arbitrary and unreasonable ____”
Written by the judges who cited it.
The opinion
TROTT, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority’s opinion, except for the conclusion that plaintiffs do not state a substantive due process claim against Penman and Reed. The majority contends that even if the emergency closures were designed to relocate criminals and reduce urban blight rather than to respond to dangerous housing code violations, and even if the defendants “faked” the emergency, the closures did not violate substantive due process because they “bore a sufficient relation to the general welfare.” In other words, because the government has a legitimate interest in reducing crime, it can pretextually use emergency powers granted by the housing code to serve that purpose.
With all respect to my colleagues, I don’t see how the law permits them to reach that result. To establish a substantive due process violation, plaintiffs must prove only that the government’s action was “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid v. *872 Ambler Realty Co., 272 U.S. 365, 395 , 47 S.Ct. 114, 121 , 71 L.Ed. 303 (1926); see Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989), cert. denied, 494 U.S. 1016 , 110 S.Ct. 1317 , 108 L.Ed.2d 493 (1990). In Sinaloa Lake Owners, another case involving allegations of a “faked” emergency used to justify a deprivation, we held that plaintiffs stated a substantive due process claim arising from the state’s breach of a privately-owned dam and destruction of a privately-owned lake. Plaintiffs alleged that the state knew or should have known that no emergency existed which justified the action. We observed:
The exercise of emergency powers is particularly subject to abuse.... Exigent circumstances often prompt actions that severely undermine the rights of citizens, actions that might be eschewed after more careful reflection or with the benefit of safeguards that normally constrain governmental action.
Id. at 1410. Accordingly, we held that
[wjhether government officials invoked emergency powers when they knew, or well should have known, that no exigency justified use of such draconian measures, is therefore highly relevant in determining whether the government has violated the plaintiffs substantive due process rights.
Id.
Here, plaintiffs allege the city forced people out of their homes and kept them out based on a lie — that the residences were so dangerous under the housing code that emergency closures were necessary. If that, once proved, is not an abuse of the police power, I don’t know what is. The majority’s retort is not enough. The action cannot be justified as a means to control crime. If criminals are living in the units, the police should arrest them. If crime in the area is rampant, the police should put a stop to it. The city cannot simply start throwing innocent people out of private property to reduce crime in a troubled neighborhood. A contrary rule is simply unimaginable.
Imagine if the plaintiffs in Sinaloa Lake Owners owned land below the dam. Suppose the area was a high-crime area like Arden-Guthrie. Would the majority really claim it was not arbitrary and unreasonable for the government to breach the dam and flood the area on the pretext of emergency in order to suppress crime? Of course not. But closing housing units in Arden-Guthrie on the pretext of emergency has the same effect. Future crime might be reduced, but people are unreasonably and illegitimately dislocated. We grant the government enormous powers in emergencies. If the government maliciously and intentionally abuses those powers, I think a substantive due process claim as well as a procedural due process claim is stated in light of Sinaloa Lake Owners.
Defendants dispute these allegations and deny they “faked” anything. If the housing code violations truly justified emergency closures, so be it. However, at this stage in the litigation, I think plaintiffs have presented sufficient evidence to survive summary judgment on their substantive due process claim against Penman and Reed.