Procedural Due Process and Destruction of Private Property

When can the government destroy your home without notice or an opportunity to be heard?  Whenever it wants.  Well, sort of.  Actually, not even close.  WWBITV, Inc. v. The Village of Rouses Point, No. 08-5112 (2d Cir. Dec. 9, 2009) (here).

In WWBITV, a fire badly damaged a fire.  Government contractors determined that the building was in danger of collapsing.  So they blew it up, without first giving the property owner a pre-deprivation hearing.

The property owner sued under Section 1983.  He lost.  Good thing, too. It sounds like the hotel was going to have pieces all into the road.

Yeah, sorry that your hotel had a fire.  Really, that must have been awful.  That's why you have insurance.  Should the problem of your crumbling hotel become a hapless motorist's problem?  Jerks.

Their legal arguments weren't half bad.  There was some tension within the Second Circuit over this issue: If you can give a pre-deprivation hearing, must you?  The WWBITV panel held: No.  Slip op. at 12 ("Assuming arguendo that plaintiffs have raised valid questions about whether the Village chose the best possible method of safeguarding the public, such a showing is not sufficient to defeat summary judgment.")

However, the government cannot be arbitrary and capricious:

[W]here an adequate post-deprivation process exists, an official reasonably believing on the basis of competent evidence that there is an emergency does not effect a constitutional violation by ordering a building demolition without notice or a hearing. Whether the official abused his discretion or acted arbitrarily in concluding that a genuine emergency exists is a factual issue, subject to the usual considerations for a district court addressing a summary judgment motion. Summary judgment may not be awarded where there is a genuine issue of fact as to whether officials acted arbitrarily in declaring an emergency.
Id. at 11.  Here, the WWBITV building was a POS:
By the time Clarke left the scene, the building had been extensively damaged. The roof and the top floors had been completely destroyed. Debris hung off the hotel’s facade, and officials were concerned that it would fall into the street. The instability of the building, as well as its proximity to the street, necessitated the closing of State Road 11.
Id.  at 4.  Ergo, summary judgment for the defense.

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