A U.S. district court judge is allowing a lawsuit several business owners filed against the city of Seattle to move ahead. What makes this different? It alleges the city refused to protect these businesses from protestors who took control of a 16 clock part of town and declared is a police-free autonomous zone called a CHOP.

Ilya Somin writes he was skeptical of the plaintiff’s case. But the judge’s order makes him think the plaintiffs might have a chance to show Seattle’s unwillingness to restore order was, effectively, an unconstitutional “taking” of private property:

As I see it, the key question here is whether the City’s actions were closely enough connected to the CHOP activists’ violations of the owners’ property rights to  be considered as assistance “sufficiently direct and substantial” enough to qualify as a taking.

Given the scale of the city’s alleged assistance to the private occupiers, I tentatively think the answer is yes. The city authorities apparently provided extensive aid to the CHOP activists both by giving the material assistance, and by allowing them to use city property. And it was foreseeable they would use these resources to violate local landowners’ property rights.

However, I hasten to add that this is a fairly murky area of takings jurisprudence, and I’m not aware of another case with closely analogous facts. It isn’t easy to figure out where to draw the line between essentially private violations of property rights, and those that are sufficiently facilitated by the government to qualify as takings. As this case makes its way through the legal system, it could potentially set an important precedent on that issue.

This will, indeed, be an interesting case to watch.

Image Credit: By Daniel Schwen (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons