CA5: Fourth Amendment seizure v. Fifth Amendment taking

In a case involving a “rolling beachfront easement” after Hurricane Rita in Texas and whether beach erosion and state action afterward resulted in, inter alia, a Fourth Amendment seizure, the Fifth Circuit certifies the issue to the Texas state courts. The court finds the seizure issue ripe and present, but impossible to resolve under state law. Also, Fourth Amendment seizure and Fifth Amendment takings claims can be different things. Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009):

The Officials preliminarily contend that any Fourth Amendment claim here is fully subsumed by Severance’s takings claim and is therefore not separately cognizable. We reject this contention. The Fourth Amendment applies to civil as well as criminal seizures, Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc), and the Supreme Court holds that an interference with individual property rights may be found to breach more than one provision of the Constitution. United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S. Ct. 492, 499 (1993). The Court has not specifically ruled that separate claims for constitutionally unreasonable seizure and taking of property may coexist, but the Fourth Circuit has so held. Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006). Further, this court has ruled more than once that substantive due process, procedural due process, equal protection and takings claims may be implicated simultaneously in various types of governmental actions that interfere with individual property rights. Simi Inv. Co. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v. City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000). This court cautioned that substantive due process is not the “appropriate avenue of relief” for most landowner complaints, and that, with rare exceptions, takings clause “jurisprudence cannot be circumvented by artful pleading of substantive due process claims.” Simi Inv. Co. v. Harris County, 256 F.3d 323 (5th Cir. 2001) (per curiam), denying reh’g to 236 F.3d 240 (5th Cir. 2000). The reason for such expressed caution must be that a specific constitutional protection ought generally to control over claims made under the rubric of substantive due process. The Fourth and Fifth Amendments, however, both provide specific constitutional commands. That they may have evolved through caselaw to overlap in providing remedies for some deprivations of property interests does not authorize this court to fail to apply one or the other provision. Indeed, as Presley noted, the elements of a violation of the two amendments differ, with the touchstone of a takings claim being lack of just compensation and that of a seizure claim being its unreasonableness. 464 F.3d at 485. Further, § 1983 authorizes different damage measures for the claims.

The case produced this post on howappealing.com on April 24th:

Dissenting Fifth Circuit judge accuses Pacific Legal Foundation of tilting at windmills in a “thinly veiled Libertarian crusade” aimed at overturning state laws that arguably infringe on private property rights: From the start of his dissenting opinion issued yesterday (at page 22 of the PDF file), it appears that Circuit Judge Jacques L. Wiener, Jr. takes a dim view of the litigation strategy that the Pacific Legal Foundation is employing in challenging a Texas law known as the Open Beaches Act.

But the PLF appears to have the last laugh at this juncture, as the majority — in an opinion by Chief Judge Edith H. Jones — has reinstated one key aspect of the PLF-sponsored lawsuit in order to certify a question to the Supreme Court of Texas.

And this post on Volokh Conspiracy the same day: “Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights.”