# Armendariz v. Penman

> Court of Appeals for the Ninth Circuit · February 7, 1996 · 75 F.3d 1311

URL: https://www.frixlaw.com/law-library/cases/6937623

## Case

- **Full name:** Tomas ARMENDARIZ Rosa C. Armendariz Harry Julian Brown, Jr. Lance A. Bukouskis v. James F. PENMAN W.R. Holcomb David M. Stachowski Cecil Dillard Kenneth J. Henderson, Defendants-Appellants Tomas ARMENDARIZ Rosa C. Armendariz Harry Julian Brown, Jr. Lance A. Bukouskis v. James F. PENMAN W.R. Holcomb David M. Stachowski Cecil Dillard Kenneth J. Henderson, and Al Boughey Larry Reed, Defendants-Appellants Tomas ARMENDARIZ Rosa C. Armendariz v. James F. PENMAN
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 7, 1996
- **Citations:** 75 F.3d 1311; 96 Cal. Daily Op. Serv. 839; 1996 U.S. App. LEXIS 1613
- **Precedential status:** Published
- **Opinion:** Concurring in part by Schroeder
- **Judges:** Beezer, Browning, Fletcher, Hawkins, Kozinski, Nelson, Noonan, Only, Poole, Schroeder, Wallace, Wiggins
- **Cited by:** 269 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (2007).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6937623

## How later opinions describe it (automated extraction)

- stating in dicta that “[i]f the city council . . . had by ordinance declared that a shopping center on the plaintiffs’ property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city …
- holding that if the Takings Clause applies to an alleged violation, no substantive due process claim applies. “Substantive due process analysis has no place in contexts already addressed by explicit textual provisions of constitu- tional protection, regardless of whether the p…
- holding that the defendants were 27 entitled to summary judgment on the plaintiff’s substantive due process claims where 28 “substantive due process provides the plaintiffs no additional relief”
- finding “a triable issue of fact as to whether the [city’s] asserted rationale of directing efforts to enforce the housing code in high-crime areas was merely a pretext” to reduce property values for the city to purchase them at a reduced rate
- stating that Lochner “symbolizes an era in which the Court, invalidating economic legislation, engaged in a level of judicial activism which was unprecedented in its time and unmatched since”

## Opinion text

SCHROEDER, Circuit Judge,
concurring in part and dissenting in part:
I concur in all portions of Judge Fletcher’s opinion except the analysis of the Takings Clause in Part III.A.2 and 3.
I cannot agree with the majority that the enforcement of housing codes can result in a claim of -a taking for non-public use. The Supreme Court has made it abundantly clear that the “public use” requirement is coterminous with the scope of a sovereign’s police power, and that where a taking is “rationally related to a conceivable public purpose” the taking is not proscribed by the Public Use Clause. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 , 104 S.Ct. 2321, 2329 , 81 L.Ed.2d 186 (1984); Berman v. Parker, 348 U.S. 26 , 75 S.Ct. 98 , 99 L.Ed. 27 (1954) (upholding legislation providing for taking of slum areas for possible sale or lease to private interests). Enforcing housing codes is rationally related to a public purpose. We should not let the Takings Clause become a device for litigating the wisdom or motivations behind municipal law enforcement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6937623. Public record. Not legal advice.