Seattle just learned a valuable civics lesson: No matter how important the cause, government cannot deprive owners of the right to access their property without first paying for it. And if it does, it shouldn’t cover up evidence by deleting thousands of text messages. The city found this out the hard way when it paid $3.6 million to settle the Capitol Hill Occupied Protest (CHOP) property damage lawsuit.
On June 8, 2020, after the killing of George Floyd by police in Minneapolis, then-Mayor Jenny Durkan ordered the Seattle Police Department to surrender an entire residential-commercial neighborhood to protesters, who christened the area the Capitol Hill Autonomous Zone (CHAZ). The police department helped block off the area, displacing residents and business owners by barricading roads.
Lacking a police presence, CHAZ quickly became rife with crime, including the fatal shooting of a special-needs teenager in cold blood. After weeks of several high-profile incidents, Durkan finally ordered the police to shut down CHAZ, allowing local owners to return to their properties. But, by then, the damage was done. Homes and businesses were damaged while police had refused to help owners access and secure their properties.
Several local residents filed a lawsuit against the city to recover damages, including those resulting from the loss of their constitutional right to access their properties. The city fought to have the owners’ takings claims thrown out of court and insisted that it merely facilitated the establishment of CHAZ in response to widespread protests — shifting the blame to the protesters, even though it was the city’s active aid that helped lead to the disturbances in the CHAZ.
But recently, Judge Thomas Zilly ruled that a jury should decide whether a deprivation of the “right to access” took place, setting up the case for trial. Evidently seeing the writing on the wall, Seattle officials agreed to settle out of court.
Access to one’s property is the foundation of all other ownership rights. After all, if you are prevented from even getting to your property, you cannot meaningfully protect it. Without access, an owner also cannot use and enjoy their property in any meaningful sense. What’s the point of owning a home or business that you can’t enter?
The right of access is so essential to property ownership that, with few exceptions, courts have long required that the government compensate owners whenever its actions substantially interfere with an owner’s right to freely come and go.
Protection of private property rights — such as the right of access — is fundamental to our republican form of government. In the Takings Clause, the Constitution’s authors insisted that property shall not “be taken for public use, without just compensation.” As the U.S. Supreme Court repeatedly has noted, one of the principal purposes behind the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
This brings us back to the city’s choice to turn a thriving neighborhood into a police-free, occupied protest zone. That decision is just the kind that the Constitution prohibits, unless the city compensates the owners for their loss of access.
My firm,_ Pacific Legal _Foundation, filed a friend-of-the-court brief in support of the homeowners and businesses. We advised the court that under the Fifth Amendment, the government may not grant exclusive use of public roads to private interests — it must instead always keep them open for owner access — unless it is impossible to do so.
No matter how well-intentioned, the City of Seattle’s actions led to the deprivation of some owners’ fundamental right to access their properties. The city has finally agreed to the consequences of that decision: paying for it.
This op-ed was originally published at The Hill on March 20, 2023.