Nahmod Law

The Knick takings decision

The Supreme Court, in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), a game-changing 5-4 takings decision, overruled Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). In Knick, the district court had dismissed a property owner’s section 1983 takings claim for damages against a local government because she had not pursued an inverse condemnation action in state court against the local government as required by Williamson County. The Court, reversing in an opinion by Chief Justice Roberts, declared:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.

(Knick, its relation to Williamson County and its implications for section 1983 damages actions claiming takings against local governments are addressed at length in a previous post here: https://nahmodlaw.com/2019/07/25/the-knick-case-takings-and-section-1983-a-somewhat-different-view/).

What are the implications for section 1983 damages actions claiming takings against states?

Even after Knick, a section 1983 takings plaintiff attempting to sue a state for damages in federal court has to confront two obstacles. The first is the Supreme Court’s decision in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that a state, unlike a local government, is not a suable “person” within the meaning of section 1983. And second, even apart from Will, the Eleventh Amendment would serve as a bar to such a federal court lawsuit since Will also held that section 1983 did not abrogate Eleventh Amendment immunity.

A section 1983 takings plaintiff who sues a state for damages in state court in order to avoid the Eleventh Amendment bar would fare no better because, as mentioned, a state is not a suable “person” for section 1983 purposes as a matter of statutory interpretation. A state thus cannot be sued for damages under section 1983 anywhere.

The result is that the section 1983 takings plaintiff suing a state in federal court has to forego his or her damages claim and instead seek declaratory and injunctive relief under section 1983 against the relevant state officials alleging an unconstitutional taking. If successful, the plaintiff would be entitled to attorney’s fees in addition to prospective relief.

In addition, the section 1983 plaintiff seeking damages for an unconstitutional taking could sue state officials in their individual capacities for damages. In many such cases, though, these state officials would likely defend on the ground of absolute quasi-judicial immunity and, as a fallback, on the ground of qualified immunity, arguing that they did not violate clearly settled takings law.

Here is where it gets interesting.

Could a takings plaintiff seeking damages against a state in federal court not use section 1983 but instead rely on the Fourteenth Amendment (which incorporates the Fifth) as the basis for his or her claim? Notice that the section 1983 “person” issue drops out. You may say that there is still a potential Eleventh Amendment problem. But could the Fourteenth Amendment takings plaintiff plausibly make two related arguments. First, that the Fourteenth (and Fifth) Amendments are self-executing, per Knick, and give rise on their own to potential damages liability where there has been a taking without just compensation? And second, that the Fourteenth (and Fifth) Amendments, by virtue of their self-executing nature regarding just compensation (this is where Knick comes in again), abrogate Eleventh Amendment immunity? The Fourteenth Amendment, at least insofar as takings are concerned, could be read as modifying the Eleventh Amendment in this respect.

A related question, whose answer might be relevant to the above questions about states, is whether any of this reasoning applies to Fifth Amendment damages taking claims against the federal government. Is the Fifth Amendment self-executing in this respect and does it abrogate federal sovereign immunity? Or has the federal government separately waived its sovereign immunity under the Tucker Act, 28 U.S.C. section 1491(a)(1), thus avoiding the need to answer the abrogation question?

There you have it. Please feel free to email me at snahmod@kentlaw.edu with any thoughts you may have.

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