CA6: SW not required to tear down a condemned building

Once a building is legally condemned, a separate search warrant isn’t required to tear it down. It is then a reasonable seizure. Keene Grp., Inc. v. City of Cincinnati, 2021 U.S. App. LEXIS 15074 (6th Cir. May 20, 2021):

The district court also properly dismissed Plaintiff’s Fourth Amendment claim for a warrantless seizure. The City did not need to obtain a warrant to demolish a vacant building that had been condemned by administrative proceedings which met the requirements of due process.

Defendants do not dispute that their demolition of a building on Plaintiff’s property implicates the Fourth Amendment’s regulation of governmental seizures. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental [seizure] is ‘reasonableness.'” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). On the other hand, “the text of the Fourth Amendment does not specify when a search warrant must be obtained ….” Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). No case raised by Plaintiff supports applying the warrant requirement in this case, and since Plaintiff makes no other argument that Defendants’ seizure of the property was unreasonable, Plaintiff has failed to state a claim for a violation of the Fourth Amendment.

As the district court recognized, a panel of this Court in Embassy Realty Investments, Inc. v. City of Cleveland, 572 F. App’x 339 (6th Cir. 2014), found that the warrant requirement did not apply in virtually identical circumstances. As an unpublished decision, Embassy Realty is not binding precedent, but we may consider it for its persuasive value. See United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007). In Embassy Realty, the property owner purchased a building that had already been condemned, and although he was not aware of the condemnation at the time of purchase, he did participate significantly in administrative and judicial proceedings prior to the challenged demolition. Embassy Realty, 572 F. App’x at 341-43. As relevant here, the panel rejected the property owner’s argument that a warrant was required to effect demolition, finding that “a warrantless entry to abate a nuisance after the entry of remedial orders does not violate the Fourth Amendment provided such entry does not invade a constitutionally-protected privacy interest.” Id. at 345.

Embassy Realty’s conclusion that the warrant requirement did not apply was largely based on the panel’s survey of cases from our sister circuits after “research yielded no Sixth Circuit decision on point ….” Id. Those courts have uniformly found that “[a] warrant is unnecessary when a municipality seizes property that has been declared a nuisance by means of established police power procedures” in the absence of a constitutionally protected privacy interest. Freeman v. City of Dallas, 242 F.3d 642, 644-45 (5th Cir. 2001) (en banc); see also Santana v. City of Tulsa, 359 F.3d 1241, 1245 (10th Cir. 2004) (holding “that as long as procedural due process standards are met and no unreasonable municipal actions are shown, a nuisance abatement action does not violate the Fourth Amendment”). As with unpublished decisions, out-of-circuit cases are not binding, but may be considered. See Terry v. Tyson Farms, Inc., 604 F.3d 272, 278 (6th Cir. 2010) (recognizing that out-of-circuit cases are not precedential but may be looked to, especially when reviewing unresolved questions of law).

Plaintiff has not demonstrated a reasonable expectation of privacy in the property. …