Petition for Writ of Certiorari — Hinkle Family Fun Center, LLC, et al., Petitioners v. Michelle Lujan Grisham, et al.

No.

IN THE

Supreme Court of the United States

HINKLE FAMILY FUN CENTER, LLC; BRYAN HINKLE;

DOUGLAS HINKLE; ALBUQUERQUE URBAN AIR, LLC;

THOMAS GARCIA; BRIAN GARCIA; JUSTIN HAYS,

PETITIONERS

VU.

MICHELLE LUJAN GRISHAM, INDIVIDUALLY, ACTING

UNDER THE COLOR OF LAW; KATHYLEEN M. KUNKEL,

INDIVIDUALLY, ACTING UNDER THE COLOR OF LAW

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

A. BLAIR DUNN

Counsel of Record

Western Agriculture

Resource and Business

Advocates, LEP

400 Gold Ave SW

Suite 1000

Albuquerque, NM 87102

abdunn@ablairdunn-esq.com

(505) 760-5060

CURRY & TAYLOR ¢ (202) 350-9073

1

QUESTION(S) PRESENTED

This Court has recognized that when state

governments require landowners to allow entry of

persons on a landowner’s property that placement of that

servitude infringes upon the right of a property owner to

exclude the public from his property and that action by

government constitutes a taking for which just

compensation is owned. See Cedar Point Nursery v.

Hassid, 141 8. Ct. 2068, 210 L. Ed. 2d 369 (2021).

However, the Tenth Circuit and the District of New

Mexico refused to acknowledge the correlative of this

jurisprudence, which is that if the government enacts a

servitude that prohibits a landowner from inviting the

public to his property a taking requiring compensation

has occurred and then compounded that error by ignoring

the jurisprudence of this Court that clearly establishes

that claims for a taking of property by state or local

governments through inverse condemnations are

immediately actionable under Section 1983 and qualified

immunity does not apply.

Thus, the question presented is: Did the Tenth

Circuit err in providing qualified immunity to

Respondents for their actions to inversely condemn the

property of the Petitioners to shutter their business and

prohibit them from inviting the public to their property

on pain of fines and imprisonment?

Ww

PARTIES TO THE PROCEEDING

All the parties in this proceeding are listed in the

caption.

STATEMENT OF RELATED CASES

Related cases to this proceeding are:

e Hinkle Family Fun Center, LLC, Bryan Hinkle

and Douglas Hinkle, Albuquerque Urban Air,

LLC, Thomas Garcia and Brian Garcia, and

Justin Hays v. Michelle Lujan Grisham and

Kathyleen M. Kunkel, No. 1:20-cv-01025-MV-LF,

U.S. District Court for the District of New Mexico.

Memorandum and Opinion Judgment entered Feb.

17, 2022.

e Hinkle Family Fun Center, LLC, Bryan Hinkle

and Douglas Hinkle, Albuquerque Urban Air,

LLC, Thomas Garcia and Brian Garcia, and

Justin Hays v. Michelle Lujan Grisham and

Kathyleen M. Kunkel, Case No. 22-2028, U.S.

Court of Appeals for the Tenth Circuit. Judgment

entered December 28, 2022. Panel Rehearing

denied January 24, 2023.

RULE 29.6.

Petitioner Hinkle Family Fun Center, LLC

(“Hinkle”) is a New Mexico limited liability

company with its principal place of business in

Albuquerque, New Mexico. Hinkle states that no

parent corporation or any publicly held

corporation owns 10% or more of the stock of

Hinkle.

Petitioner Albuquerque Urban Air, LLC

(“Urban Air’) is a New Mexico limited liability

company with its principal place of business in

Albuquerque, New Mexico. Urban Air states that

no parent corporation or any publicly held

corporation owns 10% or more of the stock of

Urban Air.

Ww

TABLE OF CONTENTS

Page

(JUESTION(S) PRESENTED ..........ccccsssssscsssscccesssseccesssseecesssscees l

PARTIES TO THE PROCEEDING..........sssccsscccssssssssceccccesssssscees ll

STATEMENT OF RELATED CASES ........ccsccsscssssssecesssceeeessseeees il

RULE 29.6 .......cccccssssssssssssssscsssccccsssccssssssssscssssssssssssssssssssssssesees 1

TABLE OF AUTHORITIES. ......cccscccsssssssssssssssccccessssscsecessssseeees V

OPINIONS BELOW.........cccssssscssssseccesssscccesssssecessscecesssscescesesseees 2

JURISDICTION. .......sssscccccccsssssssccccccccesssssscceeeccessssssssceseceeesesessces 5)

RELEVANT PROVISIONS INVOLVED..........ssssccsscccsesssssscceeeees 5)

STATEMENT ......ccccccssssscsssssccccssssceccesssseecesssseeecssssceecesesseesesssscees D

REASONS FOR GRANTING THE PETITION.........ccccccssssssssessees 7

CONCLUSION .....ccccccsssssccsssscecessssceccesssneecesssscecessescescesssseeeessnes 15

APPENDIX

Circutt Court DECISION ....cccccccsscscsssssssssssssccscsccssssssssssseseees la

District COUrt DeCiStON.....ccccccccccccssssssssssscccsccccscccccsssssesees 13a

Order Deny tng ReEReCQr ving .......ccccccccccssesccsssssecsssssessssseeeens 54a

Vv

TABLE OF AUTHORITIES

CASES

ANDRUS V. ALLARD, 444 U.S. 51, 66-67, 100

S.CT. 318, 327, 62 L.ED.2D 210 (1979) .eccssecsssees

ARKANSAS GAME & FISH COMM'N V. UNITED

STATES, 568 U.S. 28, 27, 1383 8. CT. 511, 515,

184 L. ED. 2D 417 (2012) oe eeceeeeeesceeseeeeees

ARRIGONI ENTERPRISES, LLC V. DURHAM, 578

U.S. ----, ----, 186 S.CT. 1409, 1409, 194

L.ED.2D 821 (2016) oo. et eceeeeceeecescesecesceeseeees

BARTLETT V. ZONING COMM'N OF OLD LYME,

161 CONN. 24, 30, 282 A.2D 907, 910 (1971) .......

CLARIDGE V. NEW HAMPSHIRE WETLANDS

BOARD, 125 N.H. 745, 752, 485 A.2D 287, 292

EUCLID V. AMBLER REALTY Co., 272 U.S. 365,

387-388, 47 S.CT. 114, 118, 71 L.ED. 308 (1926)

HINKLE F'AMILY FUN CTR., LLC V. GRISHAM,

2022 WL 17972188 .0... ee ecsseeeescccesscessceessseeesnees

KNICK V. TWP. OF SCOTT, PENNSYLVANIA, 204

L. ED. 2D 558, 139 S. CT. 2162, (2019) vecc.seccsseees

LUCAS V.8.C. COASTAL COUNCIL, 505 U.S.

1008, 1023-28, 112 8. CT. 2886, 2897-900, 120

L. ED. 2D 798 (1992) ....eccccccccccccssssssssccccccccccsccsssses

MONTEREY, LTD., 526 U.S. 687, 717, 1198.CT.

1624, 143 L.ED.2D 882 (1999) .ccccsssscssescsssecssseeeese

PENNSYLVANIA COAL Co. V. MAHON, 260 U.S.

398, 417, 48 8. CT. 158, 161, 67 L. Ep. 322

Page

VI

STATUTES

28 U.S.C. § 125411) wwe eccccseesssscccccccccccsccssssccceccccccsccseees 3

28 U.S.C. SECTION 1291 0......ccc...tecccsccccccssssscccccccsssssccecceseeees 4

28 U.S.C. § 21OL(C) wu cecccccccccccccssscsssccccccccccccccssssccccccccccsccscsees 3

28 U.S.C. SECTION 1348 .........cc.ccsssssccccccssssscccccccsssssccecccseeees 4

AZ US.C. § 1988... cccccccssssccccsssscccccsssccccccssssecccsssscccescscess 1,5

OTHER AUTHORITIES

SAX, TAKINGS AND THE POLICE POWER, 74

YALE LJ. 36, 49 (1964)... cc cccccessssssssctrseccesssseeeees 13

1

PETITION FOR WRIT OF CERTIORARI

No case stands for the proposition that the

government can indefinitely seize thru the inverse

condemnation private property to shutter business

thereafter exerting control over that property not just

months but years later under the guise of a public

health event and be afforded qualified immunity to

excuse it from the obligation to provide the property

owner with just compensation. This case provides yet

another example of where this Court’s jurisprudence

for qualified immunity has become so warped that

constitutionally protected rights and the will of

Congress in passing 42 U.S.C. § 1983 means virtually

nothing in a world where the excuse of the government

for taking the property is that there was a pandemic at

the time, even months after the emergency period of

that pandemic had passed. The Tenth Circuit’s holding

almost recognizes this Court’s jurisprudence in Cedar

Point, that when the government enacts a servitude (in

that case a positive servitude, in this case a negative

servitude) that deprives a landowner of the right to

exclude or in this case to invite the public from his

property that a taking requiring just compensation has

occurred. The Tenth Circuit’s holding, while ostensibly

recognizing that the taking may have occurred, which is

a marked improvement on the holding of the District

Court, proceeds to ignore this Court’s clear and

unequivocal jurisprudence in Knick v. Twp. of Scott,

Pennsylvania, 204 L. Ed. 2d 558, 189 8. Ct. 2162, (2019),

as well as plethora of cases from this Court and the

Tenth Circuit itself, recognizing that the inverse

condemnation taking of property requiring just

compensation is a clearly established violation of the

Fifth Amendment for which citizens may bring a case

2

under Section 1983 and the government enjoys no

qualified immunity.

Thus, in essence the Tenth Circuit, while

recognizing the obvious error of the District Court with

regard to the availability of claims under Section 1983

for the inverse condemnation of a negative servitude

imposed upon private property, proceeded to affirm the

District Court’s holding by finding that if the excuse for

the inverse condemnation of private property was that

there was a pandemic, then the government is entitled

qualified immunity. This leaves this Court as the only

avenue for citizens in the Tenth Circuit to clearly

establish that public officials cannot simply take

property without providing just compensation if they

do so for a reason that is already establish in the law

from this Court, the Tenth Circuit or weight of the

body of law from other Circuits. This circular reasoning

that slams the Courthouse door shut for inverse

condemnations suits under Section 1988 in the future is

simply untenable.

OPINIONS BELOW

The unpublished judgment of the United States

Court of Appeals for the Tenth Circuit in Ankle

Family Fun Ctr., LLC v. Grisham, 2022 WL 17972188,

dated December 28, 2022, affirming the District Court’s

decision affirming qualified immunity is set forth in the

appendix hereto pages la — lla. The Decision denying

the Petition for Panel Rehearing, dated January 24,

20238, is set forth in the appendix hereto page 54a.

The Memorandum Opinion and Order Granting

the Defendants’ Motion to Dismiss in Hinkle Family

Fun Ctr., LLC v. Grisham, 586 F. Supp. 3d 1118, dated

)

February 17, 2022, is set forth in the appendix hereto

pages 13a — 58a.

JURISDICTION

The judgment of the United States Court of

Appeals for the Tenth Circuit affirming the District

Court decision granting qualified immunity was

entered on December 28, 2022. This petition for writ of

certiorari by Petitioners is filed within ninety (90) days

from the date of the Order denying the Petitioner for

Panel Rehearing on January 24, 2028. 28 U.S.C. §

2101(c). The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Article IIT, Section 1:

The Judicial power of the United States shall be

vested in one Supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish...

United States Constitution, Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

4

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

28 U.S.C. Section 1291

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit)

shall have jurisdiction of appeals from all final

decisions of the district courts of the United

States ... except where a direct review may be

had in the Supreme Court.

28 U.S.C. Section 1343

(a) The’ district courts shall have original

jurisdiction of any civil action authorized by law

to be commenced by any person: 1) to recover

damages for injury to his person or property, or

because of the deprivation of any right or

privilege of a citizen of the United States, 2) to

redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity

secured by the Constitution of the United States

or by any Act of Congress providing for equal

rights of citizens or of all persons within the

jurisdiction of the United States; and 3) to

recover damages or to secure equitable or other

relief under an Act of Congress providing for the

protection of civil rights...

42 U.S.C. Section 1983

A.

Every person who, under color of any

statute ordinance, regulation, custom, or usage,

of any State..., subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be lable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress, except that in any action

brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section...

STATEMENT

Right to Just Compensation for Private

Property Taken for Public Use

Petitioners brought 42 USC $1983 litigation against

Respondents for the actions during the pandemic to

require that businesses of the Petitioners remain closed

to public well more than a year after the Covid

Pandemic began to deprive the Petitioners of their

Property interests in their livelihoods as purveyors of

amusement and recreation that they accomplished on

their private property. While the case was pending in

the District Court, this Court issued its decision in

Cedar Point clarifying that when the government

inversely condemns a servitude to be imposed upon a

6

landowner’s property for the public’s benefit that a

taking had occurred, and the government owed just

compensation therefore. In light, of that decision

Plaintiff moved to amend, which was denied by the

District Court as capable of plausibly stating a claim for

a taking upon which relief could be granted and on

grounds of qualified immunity which the District Court

found also warranted dismissal.

B. District Court Proceedings.

The Complaint was filed into the Federal

District of New Mexico on December 8, 2020. The

Memorandum Opinion and Order granting dismissal

and denying amendment was entered on the district

court docket on February 17, 2022. The notice of appeal

was filed on March 18, 2022.

C. Tenth Circuit Decision.

The Tenth Circuit affirmed the District Court

decision on December 28, 2022. The Appeals Court

affirmed on the basis that no case from this Court or

the Tenth Circuit, nor the weight of authority from

other jurisdictions, clearly established that that the

government could be required under Section 1983 to

provide just compensation for private property

inversely condemned to combat a _ public health

pandemic and therefore Respondents were entitled to

qualified immunity.

7

REASONS FOR GRANTING THE PETITION

While Petitioners did agree with the Tenth

Circuits decision regarding a grant of qualified

immunity for the Respondents from damages for the

actions to deprive Petitioners of the fundamental

liberty to engage in their chosen profession through

emergency public health orders in the later stages of a

pandemic, Petitioners understand the _ severe

limitations that the Tenth Circuit’s jurisprudence

places upon citizens that seek justice for the

unconstitutional actions of state governments that

harm their liberty and do focus on that part of the

decision in this Petition. However, the Tenth Circuit’s

decision substantially misapprehends and _ misses

several important cases from this Court regarding

takings jurisprudence and therefore the application of

qualified immunity to the government’s actions to

temporarily seize control of businesses in New Mexico

to close them is a strong basis for this Court to grant

the petition.

Importantly, the Tenth Circuit’s analysis is

based upon a misapprehension the availability of

bringing a Section 1988 to address a taking by the

government of property without providing just

compensation or damages. On this point the Chief

Justice John Roberts writing for the Court has been

clear stating that it “is key because it is the existence of

the Fifth Amendment right that allows the owner to

proceed directly to federal court under § 1983.” Knick

v. Twp. of Scott, Pennsylvania, 204 L. Ed. 2d 558, 139 8.

Ct. 2162, 2171 (2019). The Court also held in that

opinion that “[w]e conclude that a government violates

the Takings Clause when it takes property without

compensation, and that a property owner may bring a

8

Fifth Amendment claim under § 1983 at that time.” Id.

at 2177. It is unequivocal on this point, even for the

Tenth Circuit, that Respondent’s public health orders

resulted in the inverse condemnation of the Petitioners’

private property that was forcibly closed for well over a

year for the perceived public benefit of combating the

Covid Pandemic and therefore, under nearly all takings

jurisprudence that a per se taking occurred that

required just compensation.

Moreover, in that regard, Justice Clarence

Thomas in his concurring opinion laudably addresses

the concept of damages in for when a government takes

property (which is always done in under the authority

of police power to protect public health safety or

welfare) without providing just compensation as is the

case here stating:

This “sue me” approach to the Takings Clause is

untenable. The Fifth Amendment does not

merely provide a damages remedy to a property

owner willing to “shoulder the burden of

securing compensation” after the government

takes property without paying for it. Arrigoni

Enterprises, LLC v. Durham, 578 U.S. ——, —

—, 186 8.Ct. 1409, 1409, 194 L.Ed.2d 821 (2016)

(THOMAS, J., dissenting from denial of

certiorari). Instead, it makes just compensation a

“prerequisite” to the government's authority to

“tak[e] property for public use.” Jbid. A

“purported exercise of the eminent-domain

power” is therefore “invalid” unless the

government “pays just compensation before or

at the time of its taking.” Id., at ——, 186 S.Ct.,

at 1410. If this requirement makes some

regulatory programs “unworkable in practice,”

9

Supp. Brief 5, so be it—our role is to enforce the

Takings Clause as written.

Still, “[wJhen the government repudiates [its]

duty” to pay just compensation, its actions “are

not only unconstitutional” but may be “tortious

as well.” Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 717, 119 S.Ct. 1624,

148 L.Ed.2d 882 (1999) (plurality opinion). I do

not understand the Court's opinion to foreclose

the application of ordinary remedial principles to

takings claims and related common-law tort

claims, such as trespass. I therefore join it in full.

Id. at 2180.

Moreover, the concept that Respondents, as

reasonable officials, would not understand that

depriving Appellants of the use of their property (even

temporarily) was not a taking requiring compensation

simply because the reason the government action was

taken was different (i.e. protecting public safety thru

flooding private property as a flood control measure

versus protecting public health from the flood of an

infectious disease by forcibly closing private property)

is not sound reasoning, because it is not such a high

level of generality that a reasonable official could not

foresee the liability. In reality, what the Tenth

Circuit’s decision actually signals is that the virtues

underlying this particular taking is high enough that

the government is excused from the requirements of

just compensation. But, this virtue analysis is not what

should underlie a qualified immunity analysis and the

concept of a temporary closure or use of private

property for public welfare has been addressed by the

10

Court well before the Respondents’ actions here

stating:

First English held that a property owner is

entitled to compensation for the temporary loss

of his property. We explained that “government

action that works a taking of property rights

necessarily implicates the ‘constitutional

obligation to pay just compensation.’ ” 482 U.S.

at 315, 107 S.Ct. 2378. Because of “the selfexecuting character” of the Takings Clause

“with respect to compensation,” a property

owner has a constitutional claim for just

compensation at the time of the taking. bid.

(quoting 6 P. Nichols, Eminent Domain § 25.41

(3d rev. ed. 1972)). The government's post-taking

actions (there, repeal of the challenged

ordinance) cannot nullify the property owner's

existing Fifth Amendment right: “[W]here the

government's activities have already worked a

taking of all use of property, no subsequent

action by the government can relieve it of the

duty to provide compensation.” 482 U.S. at 321,

107 S.Ct. 2878

Id. at This was also addressed by Justice Ruth Bader

Ginsbury stating “[w]le disagree and conclude that

recurrent floodings, even if of finite duration, are not

categorically exempt from Takings Clause liability.

Arkansas Game & Fish Comm'n v. United States, 568

U.S. 23, 27, 1383 8S. Ct. 511, 515, 184 L. Ed. 2d 417 (2012).

The Tenth Circuit’s hair splitting regarding the nature

or reason for the government to seize private property

under police powers between public safety, public

welfare, or public health essentially ignores decades of

11

jurisprudence to reinstate the abrogated decision that

“Celvery restriction upon the use of property imposed in

the exercise of the police power deprives the owner of

some right theretofore enjoyed, and is, in that sense, an

abridgment by the state of rights in property without

making compensation. But restriction imposed to

protect the public health, safety or morals from dangers

threatened is not a taking.” Pennsylvania Coal Co. v.

Mahon, 260 U.S. 398, 417, 43 S. Ct. 158, 161, 67 L. Ed.

322 (1922).

The Mahon approach cannot simply be returned

to by Tenth Circuit under the guise of qualified

immunity because this Court has addressed that

concept and issued holding addressing taking done as

government action to protect public health (ike was

done here) stating:

“Harmful or noxious use” analysis was, in other

words, simply the progenitor of our more

contemporary statements that *1024 “land-use

regulation does not effect a taking if it

‘substantially advance[s] legitimate state

interests'....” Nollan, supra, 483 U.S., at 834, 107

S.Ct., at 3147 (quoting Agins v. Tiburon, 447

U.S., at 260, 100 S.Ct., at 2141); see also Penn

Central Transportation Co., supra, 438 U.S., at

127, 98 8.Ct., at 2660; Huchd v. Ambler Realty

Co., 272 U.S. 365, 387-888, 47 S.Ct. 114, 118, 71

L.Ed. 308 (1926).

The transition from our early focus on control of

“noxious” uses to our contemporary

understanding of the broad realm within which

government may regulate without compensation

was an easy one, since the distinction between

“harm-preventing” and “benefit-conferring”

12

regulation is often in the eye of the beholder. It

is quite possible, for **2898 example, to describe

in either fashion the ecological, economic, and

esthetic concerns that inspired the South

Carolina Legislature in the present case. One

could say that imposing a servitude on Lucas's

land is necessary in order to prevent his use of it

from “harming” South Carolina's ecological

resources; or, instead, in order to achieve the

“benefits” of an ecological preserve." Compare,

é.g., *1025 Claridge v. New Hampshire Wetlands

Board, 125 N.H. 745, 752, 485 A.2d 287, 292

(1984) (owner may, without compensation, be

barred from filling wetlands because landfilling

would deprive adjacent coastal habitats and

marine fisheries of ecological support), with, e.g,

Bartlett v. Zoning Comm'n of Old Lyme, 161

Conn. 24, 30, 282 A.2d 907, 910 (1971) (owner

barred from filling tidal marshland must be

compensated, despite municipality's “laudable”

goal of “preserv[ing] marshlands from

encroachment or destruction’). Whether one or

the other of the competing characterizations will

come to one's lips in a particular case depends

primarily upon one's evaluation of the worth of

competing uses of real estate. See Restatement

(Second) of Torts § 822, Comment g, p. 112 (1979)

(“Practically all human activities unless carried

on in a wilderness interfere to some extent with

others or involve some risk of interference”). A

given restraint will be seen as mitigating “harm”

to the adjacent parcels or securing a “benefit”

for them, depending upon the _ observer's

evaluation of the relative importance of the use

that the restraint favors. See Sax, Takings and

13

the Police Power, 74 Yale L.J. 36, 49 (1964)

(“[T]he problem [in this area] is not one of

noxiousness or harm-creating activity at all;

rather it is a problem of inconsistency between

perfectly innocent and independently desirable

uses”). Whether Lucas's construction of singlefamily residences on his parcels should be

described as bringing “harm” to South Carolina's

adjacent ecological resources thus depends

principally upon whether the describer believes

that the State's use interest in nurturing those

resources is so important that any competing

adjacent use must yield.”

*1026 When it is understood that “prevention of

harmful use” was merely our early formulation

of the police power justification necessary to

sustain (without compensation) any **2899

regulatory diminution in value; and that the

distinction between regulation that “prevents

harmful use” and that which “confers benefits” is

difficult, if not impossible, to discern on an

objective, value-free basis; it becomes selfevident that noxious-use logic cannot serve as a

touchstone to distinguish regulatory “takings”—

which require compensation—from regulatory

deprivations that do not require compensation.

A fortiori the legislature's recitation of a

noxious-use justification cannot be the basis for

departing from our categorical rule that total

regulatory takings must be compensated. If it

were, departure would virtually always be

allowed. The South Carolina Supreme Court's

approach would essentially nullify Mahon' s

affirmation of limits to the noncompensable

exercise of the police power. Our cases provide

14

no support for this: None of them that employed

the logic of “harmful use” prevention to sustain a

regulation involved an allegation that the

regulation wholly eliminated the value of the

claimant's land. See Keystone Bituminous Coal

Assn., 480 U.S., at 518-514, 107 S.Ct., at 1257

(REHNQUIST, C.J., dissenting).

*1027 7 Where the State seeks to sustain

regulation that deprives land of all economically

beneficial use, we think it may resist

compensation only if the logically antecedent

inquiry into the nature of the owner's estate

shows that the proscribed use interests were not

part of his title to begin with.” This accords, we

think, with our “takings” jurisprudence, which

has traditionally been guided by _ the

understandings of our citizens regarding the

content of, and the State's power over, the

“bundle of rights” that they acquire when they

obtain title to property. It seems to us that the

property owner necessarily expects the uses of

his property to be restricted, from time to time,

by various measures newly enacted by the State

in legitimate exercise of its police powers; “[a]s

long recognized, some values are enjoyed under

an implied limitation and must yield to the police

power.” Pennsylvania Coal Co. v. Mahon, 260

US., at 418, 43 S.Ct., at 159. And in the case of

personal property, by reason of the State's

traditionally high degree of control over

commercial dealings, he ought to be aware of the

possibility that new regulation might even *1028

render his property economically worthless (at

least if the property's only economically

productive use is sale or manufacture for sale).

15

See **2900 Andrus v. Allard, 444 U.S. 51, 66-67,

100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979)

(prohibition on sale of eagle feathers). In the

case of land, however, we think the notion

pressed by the Council that title is somehow held

subject to the “implied limitation” that the State

may subsequently eliminate all economically

valuable use is inconsistent with the historical

compact recorded in the Takings Clause that has

become part of our constitutional culture.”

8 Where “permanent physical occupation” of

land is concerned, we have refused to allow the

government to decree it anew (without

compensation), no matter how weighty the

asserted “public interests” involved, Loretto

v. Teleprompter Manhattan CATV Corp., 458

U.S., at 426, 102 S.Ct., at 3171

Lucas v. S.C. Coastal Council, 505 U.S. 1008, 1023-28,

112 8. Ct. 2886, 2897-900, 120 L. Ed. 2d 798

(1992)(emphasis added). Here, the actions of the

Respondents shuttered the properties of the

Appellants depriving them of all economic benefits of

those properties and the Tenth Circuit should have

instead reversed the District Court to allow the case to

proceed from an amended claim for a taking without

just compensation under the Fifth Amendment instead

of becoming concerned that there was note a specific

cases that addressed taking private property for the

weight concern of combating a public health pandemic.

CONCLUSION

It is incumbent upon this Court, restore the

balance of taking property for public use to combat a

16

public health crisis by requiring that the government

that takes the property to provide the owing just

compensation. Again, this Court’s review is necessary if

the boundaries of qualified immunity are to mean

anything with regard to actions of the government to

inversely condemn private property, and the matter is

likely capable of being corrected summarily which

Petitioner respectfully prays the Court consider.

Respectfully submitted,

WESTERN AGRICULTURE, RESOURCE AND

BUSINESS ADVOCATES, LLP

A. Blair Dunn, Esq.

400 Gold Ave SW, Suite 1000

Albuquerque, NM 87102

(505) 750-3060

abdunn@ablairdunn-esq.com

Attorney for Petitioners

APPENDIX

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Only the Westlaw citation is currently available.

United States Court of Appeals, Tenth Circuit.

HINKLE FAMILY FUN CENTER, LLC; Bryan

Hinkle; Douglas Hinkle; Albuquerque Urban Air, LLC;

Thomas Garcia; Brian Garcia; Justin Hays, Plaintiffs -

Appellants,

and

Cliff's Amusement Park, Plaintiff,

V.

Michelle Lujan GRISHAM, individually, acting under

the color of law; Kathyleen M. Kunkel, individually,

acting under the color of law, Defendants - Appellees.

No. 22-2028

FILED December 28, 2022

(D.C. No. 1:20-CV-01025-MV-LF) (D. New Mexico)

Attorneys and Law Firms

A. Blair Dunn, Warba, Albuquerque, NM, for Plaintiffs

- Appellants.

Holly Agajanian, Kyle P. Duffy, State of New Mexico

Office of the Governor, Santa Fe, NM, for Defendants -

Appellees.

Before HARTZ, McHUGH, and MORITZ, Circuit

Judges.

2a

ORDER AND JUDGMENT*Harris L. Hartz, Circuit

Judge

Beginning in March 2020, New Mexico Governor

Michelle Lujan Grisham and Kathyleen Kunkel, then-

Secretary of the New Mexico Department of Health

(collectively, Defendants), issued a series of executive

orders and public health orders (the Orders) in

response to the Covid-19 pandemic. Three recreational

businesses and their owners (Plaintiffs) sued

Defendants in their individual capacities under 42

U.S.C. § 1983, seeking to enjoin what they considered

unconstitutional restrictions imposed by the Orders.

The claims for injunctive relief were mooted when the

restrictions were lifted. Plaintiffs then sought to amend

their complaint to add a new theory of liability (a

takings claim) and to seek damages from Defendants.

The district court denied leave to amend, ruling that

the proposed amendment would be futile because

Defendants would not be liable on the new claims. That

ruling is before us on appeal. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm. Amending the

complaint would have been futile because Defendants

were protected against liability by qualified immunity.

I. BACKGROUND

On March 11, 2020, as part of New Mexico's

response to Covid-19, Governor Lujan Grisham issued

Executive Order 2020-004, proclaiming a statewide

Public Health Emergency in accord with N.M. Stat.

Ann. § 12-10A-5 and invoking her powers under the All

3a

Hazard Emergency Management Act, N.M. Stat. Ann.

§ 12-10-1 to -10. On March 23, 2020, Secretary Kunkel

issued a Public Health Order (the March 28 order)

authorized by Executive Order 2020-004. It required

that “[a]ll businesses, except those entities identified as

‘essential businesses[,]’ ... reduce the in-person

workforce at each business or business location by

100%”—that is, it required nonessential businesses to

close immediately. Aplt. App. at 122. Hinkle Family

Fun Center, LLC (Hinkle), Albuquerque Urban Air,

LLC, and Cliff's Amusement Park (Cliff's) (collectively,

the Businesses)—which offer multiple recreational

activities, such as miniature golf, rides, climbing,

paintball, trampolines, go-karts, carnival games, and

video games—did not fit the March 23 order's definition

of essential businesses; they complied with the order

and closed by March 24, 2020.

On June 1, 2020, Secretary Kunkel amended the

March 28 order to allow some nonessential businesses

to open at 25% capacity. But the order stipulated that

recreational facilities throughout the state “must

remain closed.” Jd. at 130. The order defined

recreational facilities to include “indoor movie theaters,

museums, bowling alleys, miniature golf, arcades,

amusement parks, concert venues, event venues,

performance venues, go-kart courses, adult

entertainment venues, and other places of indoor

recreation or indoor entertainment.” Jd. A month later,

on July 1, Governor Lujan Grisham issued an executive

order requiring that all interstate travelers to New

Mexico quarantine for two weeks following their

arrival.

4a

The original complaint in this action was filed on

October 7, 2020, in the United States District Court for

the District of New Mexico by Hinkle and its owners,

Douglas and Bryan Hinkle. The next day an amended

complaint added Albuquerque Urban Air and its

owners, Thomas and Brian Garcia, as plaintiffs. And on

October 27, 2020, a second amended complaint was

filed, adding Justin Hays, the owner of Cliff's, as a

plaintiff.1 The second amended complaint claimed that

the March 23 order—as well as amendments to it that

prolonged business closures—and the July 1 travel

restriction violated rights secured by the Due Process

and Equal Protection Clauses of the Fourteenth

Amendment. Plaintiffs sought a temporary restraining

order and a preliminary or permanent injunction

halting the Orders, thus allowing them to resume

operations; they also sought a declaratory judgment

that the Orders were unconstitutional.

Although the State allowed the Businesses to

open at limited capacity on November 30, Plaintiffs

claim that the Businesses remained hampered by the

capacity limits and also by the traveler-quarantine

order of July 1, 2020. The quarantine requirement, say

Plaintiffs, “effectively halted” tourism in New Mexico,

reducing their customer base. Aplt. Br. at 5. The travel

restriction remained in effect until February 2021. On

July 1, 2021, the State permitted recreational

businesses to resume normal operations.

In the meantime, on November 5, 2020,

Defendants had moved to dismiss the second amended

complaint under Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim upon which relief

5a

can be granted. On September 17, 2021, noting that the

government had lifted each of the orders challenged by

Plaintiffs, the district court sua sponte asked the

parties to submit briefs on whether the claims in the

second amended complaint were moot. In partial

response, Plaintiffs asked the court for leave to amend

their complaint a third time. They wished to add two

claims: (1) a claim for damages and (2) a takings claim

under Cedar Point Nursery v. Hassid, 141 8. Ct. 2063

(2021).

The district court denied the motion to amend as

futile because each of the added claims would be subject

to dismissal. See Hinkle Fam. Fun Ctr, LLC v.

Grisham, 586 F Supp. 3d 1118, 1122 (D.N.M. 2022). It

held that the claim for damages was futile because

Defendants would be immune from suit under the

doctrine of qualified immunity. Id. at 1127-29. And it

held that the takings claim was futile (1) because

Plaintiffs sued Defendants in their individual capacities

and a takings claim cannot be brought against a state

official sued in her individual capacity, and (2) because

the Orders did not effect a per se, or physical, taking

under Cedar Point or a regulatory taking under Penn

Central Transportation Co. v. New York City, 438 U.S.

104 (1978). See id. at 1130-82. The court also dismissed

the second amended complaint as moot because the

disputed orders were no longer in effect. See id. at

1183-38. This appeal does not challenge the dismissal of

the second amended complaint but only the court's

denial of leave to amend their complaint a third time.

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