Reported / Citable
Background
In June 2020, sparked by the murder of George Floyd, protestors occupied a sixteen-block area of Seattle’s Capitol Hill neighborhood and formed the Capitol Hill Occupied Protest ("CHOP"). Under pressure from protestors, Seattle Police abandoned the East Precinct building and dramatically reduced policing of Cal Anderson Park and the surrounding blocks. CHOP was forcibly disbanded by police on July 1, 2020, but related protests, encampments, vandalism, and disorder persisted in the area until December 2020.
3Pak LLC (operating as Oma Bap restaurant) and Hugo Properties LLC, two businesses located across the street from Cal Anderson Park, sued the City of Seattle. They alleged that Seattle’s facilitation of CHOP — particularly the deliberate withdrawal of police from the East Precinct — caused six months of vandalism, disruption, and economic devastation that effectively destroyed their businesses. Their claims sounded in (1) substantive due process under the "state-created danger" doctrine, (2) the Takings Clause of the Fifth Amendment, and (3) state-law public nuisance.
The district court dismissed all claims. The state-created danger and Takings Clause claims were dismissed on the merits; the state nuisance claims were dismissed as untimely under Washington’s two-year statute of limitations. The businesses appealed.
The Court’s Holding
Judge McKeown, writing for the Ninth Circuit, affirmed in part and reversed in part.
State-created danger doctrine — affirmed dismissal. The doctrine, which permits substantive-due-process recovery when the state’s affirmative act creates or exposes a person to a danger they would not otherwise have faced, reaches only harm to bodily integrity and autonomy. It does not reach pure economic loss — lost profits, lost business value, lost rents. Because the businesses pleaded only economic injury, not physical harm, this claim could not proceed.
Takings Clause — affirmed dismissal. Police inaction does not constitute either a per se taking or a right-of-access taking under the Fifth Amendment. The City did not affirmatively invade the businesses’ property, and the businesses did not assert a state-law-protected interest in police protection that would support a regulatory-takings theory. Withdrawing police presence is not the kind of affirmative government action the Takings Clause was designed to address.
State public-nuisance claim — reversed. The two-year statute of limitations had run by the time the businesses filed, and the district court had dismissed on that basis without considering equitable tolling. The Ninth Circuit held that American Pipe & Construction Co. v. Utah (1974) — which tolls the limitations period during the pendency of a putative class action — is available under Washington state law, and that the businesses should have been allowed to argue tolling based on a prior class action that addressed the same conduct. The panel reversed and remanded for the district court to take up the equitable-tolling question on the merits.
Key Takeaways
- State-created danger is bodily-integrity-only in the Ninth Circuit. Plaintiffs alleging only economic harm from government inaction (or affirmative facilitation) cannot use this theory to get into substantive due process.
- Takings Clause does not cover police inaction. Withdrawing or reducing police services — even if the result is private vandalism and economic ruin — is not a Fifth Amendment taking absent an affirmative government invasion or a state-law-protected interest in protection.
- American Pipe tolling applies under Washington state law. Where a putative class action covering the same conduct is pending or recently dismissed, individual plaintiffs may toll the statute on their own claims. The Ninth Circuit had not previously decided this for Washington nuisance claims.
- Practical playbook for businesses harmed by government policing decisions: federal constitutional theories will likely fail; the productive paths are state tort (nuisance, takings under state law) with attention to limitations and tolling.
- For California 9th Circuit practitioners: the holding is precedential within the circuit, so the same state-created-danger and Takings Clause limits apply to California businesses considering similar claims arising from CHOP-style or autonomous-zone-style protest events.
Why It Matters
The CHOP litigation has been one of the most-watched test cases of whether constitutional claims can be brought against governments that facilitate or fail to police protest occupations. 3Pak resolves two of the major federal-claim theories in favor of the government: state-created danger and Takings Clause are off the table for purely economic harm. For California businesses similarly affected by autonomous-zone protests, riots, or sustained occupations, this opinion forecloses the federal-court paths most lawyers had been gravitating toward.
The bright spot for plaintiffs is the equitable-tolling holding. The Ninth Circuit’s recognition that American Pipe tolling applies to Washington nuisance claims gives businesses a real chance to get past the limitations bar — and the same equitable-tolling analysis should be available for analogous California state-law claims under Jolly v. Eli Lilly & Co. and similar California precedent. The takeaway: state-law nuisance and trespass theories, properly tolled, are now the most viable path forward for businesses harmed by government policing decisions during sustained protests.