CT Against Gun Violence, Inc. Phone: 203-335-3802 Email: ronpinciaro@aol.


A. Although There are no Clear Tests to Predict Court Behavior in Takings Cases, the United States Supreme Court has Outlined a Multi-Step Approach to Takings Claims. The United States Constitution’s Fifth Amendment's takings clause states, “nor shall private property be taken for public use, without just compensation.” This clause is incorporated against the states through the Fourteenth Amendment due process clause. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897). 1. The Supreme Court draws an important distinction between cases involving physical takings and regulatory takings. In approaching a takings claim, the Supreme Court draws a distinction between “physical takings and regulatory takings.” Brown v. Legal Foundation of Washington, 123 S.Ct. 1406, 1417 (2003). a. Physical takings A physical taking occurs where the government “acquires private property for a public purpose,” “whether the acquisition is the result of a condemnation proceeding or a physical appropriation.” Id. In these cases, the Supreme Court has held that the Fifth Amendment’s “plain language requires the payment of compensation.” Id. The Brown court cited examples of physical takings: [C]ompensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants; or when its planes use private airspace to approach a government airport, it is required to pay that share no matter how small. Id. (quoting Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 321-23 (2002); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434 (1982), cable TV access case, finding “a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner,” in cases where a regulation amounts to “a permanent physical occupation of property.”).

b. Regulatory takings With respect to regulatory takings cases, in which regulations “prohibit a property owner from making certain uses of her private property,” courts must engage in “essentially ad hoc, factual inquiries” to determine whether a takings violation has occurred, guided by a series of factors identified in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Brown, 123 S. Ct. at 1417-18 (quoting Penn Central, 438 U.S. at 124). Ad hoc inquiries are “designed to allow ‘careful examination and weighing of all the relevant circumstances.’” 123 S. Ct. at 1418 (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001)). The Brown court cited some past cases that were examined under the standard of regulatory takings, finding that, “a government regulation that merely prohibits landlords from evicting tenants unwilling to pay a higher rent; that bans certain private uses of a portion of an owner’s property, or that forbids private use of a certain airspace does not constitute a categorical taking.” Id. (quoting 535 U.S. at 321-23). 2. Where a case involves a regulatory takings challenge, a court will examine the regulation using the factors identified in Penn Central. In Penn Central, the owners of the Grand Central Terminal challenged as violating the takings clause a New York City landmark law that prohibited them from building an office building above the Terminal. In evaluating whether the regulation amounted to a regulatory taking, the Court considered a series of factors that continue to guide the analysis of regulatory takings today. “[S]everal factors are particularly significant – the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action.” Loretto, 458 U.S. at 433 (discussing Penn Central analysis). In evaluating the economic impact of a regulation, a court will examine how depriving an owner of his or her property affects the value of the property and the owner’s ability to engage in the profitable use of it. A court may be inclined to find a takings clause violation where regulation has an “unduly harsh impact” upon an owner’s economic interests. Penn Central, 438 U.S. at 128. In considering the character of governmental action, a court will examine whether the government action is sufficiently justified by the public interests it serves. Regulation in matters of public welfare, including issues of health and safety, will be more resistant to a takings


claim. Id. at 125. From the Penn Central analysis, where government regulation of the use of property contributes to legitimate public purposes and does not prevent profitable uses of the property, regulation is more likely to be upheld against takings challenges. B. In Cases Involving Firearms Regulation, Courts Have Rejected Takings Claims. Because the analysis of regulatory takings clause challenges is highly contextual, most past cases will not be helpful to predicting a court’s response to a takings clause challenge here. As discussed below, some courts avoid an analysis using the Penn Central factors, holding that the prohibition of certain firearms is a valid exercise of the police power, and therefore cannot be a compensable taking. Regardless of their approach, all of the cases suggest substantial deference to regulations designed to improve public welfare. 1. Fesjian v. Jefferson In Fesjian v. Jefferson, 399 A.2d 861 (D.C. Cir. 1979), plaintiffs raised a takings clause claim against a Washington, D.C. firearms law that prohibited registration of machine guns. It is particularly noteworthy that the statute did not contain a grandfather clause—plaintiffs’ weapons had, in fact, been lawfully registered in prior years. The District code required that, within seven days, an unsuccessful firearm registration applicant must “(1) ‘peaceably surrender’ the firearm to the chief of police, (2) ‘lawfully remove’ the firearm from the District for as long as he retains an interest in the firearm, or (3) ‘lawfully dispose’ of his interest in the firearm.” Id. at 865 (quoting D.C. Code 1978 Supp., § 6-1820(c)). Although it did not use the terms “physical taking” or “regulatory taking” (a distinction articulated in more recent Supreme Court jurisprudence) the District of Columbia Court of Appeals firmly rejected the takings argument. The court cited Lamm v. Volpe, 449 F.2d 1202 (10th Cir. 1971), to support that “a taking for the public benefit under a power of eminent domain is...to be distinguished from a proper exercise of police power to prevent a perceived public harm, which does not require compensation.” 399 A.2d at 866. In Lamm, the Tenth Circuit, in rejecting plaintiff’s claim that Congress’ determination that the removal of outdoor advertisements from highways required just compensation was a usurpation of Colorado’s police power, outlined the differences between police power and eminent domain: We recognize that police power is a matter of legislative prerogative. In this field the legislature has wide discretionary powers. It includes everything essential to


public safety, health, and morals. Police power should not be confused with eminent domain, in that the former controls the use of property by the owner for the public good, authorizing its regulation and destruction without compensation, whereas the latter takes property for public use and compensation is given for property taken, damaged or destroyed. Lamm, 449 F.2d at 1203. Acknowledging the three alternative ways that a person could dispose of an unregisterable firearm, the Fesjian court concluded, “That the statute in question is an exercise of legislative police power and not of eminent domain is beyond dispute. The argument of petitioner, therefore, lacks merit.” 399 A.2d at 866. The Fesjian court held that strict gun control regulations, regulations that in effect prohibited the possession of machine guns, did not constitute a takings requiring just compensation, finding instead that the firearms restrictions at issue were part of the legitimate range of state police power. Though the court avoiding the Penn Central factors, one can infer from its holding that the economic effects of the regulation were not so burdensome as to render the statute a takings violation. 2. Quilici v. Village of Morton Grove Citing the analysis in Fesjian, the Illinois District Court in Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill. 1981) upheld Morton Grove's general ban on handgun possession against a takings clause argument raised by plaintiff handgun owners. Analyzing the ban’s impact on the plaintiffs through the Penn Central factors, which implies that the regulation was not a physical taking, the court held that it did not “result in the destruction of the use and enjoyment of a legitimate private property right” and did not therefore require compensation. Id. at 1184. The court observed that though the possession of handguns was prohibited within the village, the statute still allowed handgun owners to engage in some uses of their firearms, uses similar to those allowed under the District of Columbia statute at issue in Fesjian: The geographic reach of the ordinance is limited; gun owners who wish to may sell or otherwise dispose of their handguns outside of Morton Grove…If handgun owners do not wish to sell their weapons, they may simply register and store them at a licensed gun club. Finally, the ordinance has an exception for licensed collectors, for whom neither of those two alternatives may be acceptable. Id. (see also Garcia v. Village of Tijeras, 108 N.M. 116, 124 (N.M. Ct. App. 1998), discussed below).


Because the takings argument was initially raised by plaintiffs and later abandoned, the court’s analysis of this argument is dicta. The analysis in Morton Grove reaffirms the premise asserted in Fesjian, i.e., that a ban on a class of firearms will likely be upheld if it does not completely preclude an individual’s ability to use or enjoy his or her property’s value and does not exclusively require the relinquishment of the firearms to law enforcement authorities. 3. Gun South Inc. v. Brady The Eleventh Circuit Court of Appeals engaged in a similar analysis in Gun South, Inc. v. Brady, 877 F.2d 858 (11th Cir. 1989), where plaintiffs Gun South, Inc. (GSI) challenged the federal government’s temporary ban on the importation of assault rifles. While the court dismissed the takings claim as a jurisdictional matter, it still examined the factors identified in Penn Central and found that no compensable taking had occurred. First, the Government has acted in a purely regulatory capacity and does not profit from its actions. Second, the Government has neither permanently nor totally deprived GSI of any property because the Government has only temporarily suspended the importation of such rifles. Finally, even though GSI may have had a reasonable investment-backed expectation, GSI does not demonstrate that the suspension will unreasonably impair the value of the rifles. Id. at 869. 4. Citizens for a Safer Community v. City of Rochester In Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193 (N.Y. Gen. Term 1994), the Supreme Court of New York upheld Rochester’s assault weapons ban against plaintiffs’ takings claim. Although Rochester does not grandfather previously owned weapons and only offers assault weapons licenses in a limited number of circumstances, plaintiffs argument appeared to only claim that “the limitation …on an owner’s right to sell…constitutes a taking of property and an unlawful interference with the dominion and control of a property” in violation of federal and New York state law. Id. at 202. The court called this a mischaracterization of the ordinance, noting that the ordinance “only limits an individual, whether a resident or not, from selling a gun, except through a licensed gun dealer, if such sale is to occur within the City of Rochester,” placing no limits on gunsmiths and gun dealers who may sell firearms, and no limits on the rights of residents to sell firearms outside the city or to sell licensed firearms within it. Id. The court concluded that the ban “does not deprive anyone of


any property, and does not result in the taking of any property for public purpose or otherwise.” Id. 5. Silveira v. Lockyer In Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), the Ninth Circuit Court of Appeals upheld California’s assault weapons ban against a takings claim, observing that, “It is wellestablished, however, that a government may enact regulations pursuant to its broad powers to promote the general welfare that diminish the value of private property, yet do not constitute a taking requiring compensation, so long as a reasonable use of the regulated property exists.” Id. at 1092. Since the California ban allowed owners of grandfathered assault weapons to “use the weapons in a number of reasonable ways so long as they register them,” the court concluded that no compensable taking had occurred. C. Other Takings Cases Suggest Judicial Deference to Public Safety Regulation. Public welfare regulation has been given similar latitude in other contexts. In Hamilton v Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919), the Supreme Court addressed a statute that prohibited the sale and transfer of liquor “for beverage purposes” within the United States, although allowing its export, and allowed seven months after its enactment for the unrestricted sale and transfer of liquor, to allow “those engaged in the business to dispose of stocks on hand at the date of its enactment.” Id. at 157. Noting the need to free up the lines of transportation to concentrate on war efforts, the court found that, “no reason appears…why such a federal law should be obnoxious to the Fifth Amendment.” Id. In South Dakota Dept. of Public Safety ex rel. Melgaard v. Haddenham, 339 N.W.2d 786 (S.D. 1983), a case involving a statute that prohibited the sale of fireworks to South Dakota residents, the South Dakota Supreme Court responded to a takings claim by emphasizing the importance of regulating fireworks. Quoting the Washington Supreme Court's approach to a fireworks regulation case, the court held that, “The power of government to regulate and restrain the use of fireworks cannot be denied. Indeed, considering the nature of the product, that power is better described as a duty when we think of the destructive nature of explosives and the danger to life and property attendant upon its use.” Id. at 790 (quoting Ace Fireworks Co. v. City of Tacoma, 455 P.2d 935, 937 (Wash. 1969)).


The Court of Appeals of New Mexico dismissed a takings claim against a ban on the possession of pit bull dogs in Garcia v. Village of Tijeras, 108 N.M. at 123. Citing the Quilici takings analysis, the court noted that the prohibition had a limited geographic scope, affecting only the village, and allowed owners to remove their dogs from the village without punishment. Moreover, the village “notified everyone prior to enforcing the ordinance.” Id. at 124. The court stated that, “The ordinance, being a proper exercise of the Village’s police power, is not a deprivation of property without due process even though it allows for the destruction of private property…[T]he Village has legitimately exercised the police power to curtail a menace to the public health and safety.” D. California’s Takings Clause is Similar to the Fifth Amendment Takings Clause and Claims Under Both Clauses are Evaluated in Similar Ways. The takings clause of the California Constitution, art. I, § 19, provides that, “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” While the language is slightly different from the Fifth Amendment’s language, a court’s analysis proceeds in a similar fashion. In Action Apartment Ass'n v. Santa Monica Rent Control Bd., 114 Cal. Rptr. 2d 412 (Cal. Ct. App. 2001), the California Court of Appeals addressed a claim by a group of landlords arguing that the requirement that they pay three percent interest on tenants’ security deposits constituted a taking where the interest rates were less than three percent. In finding that the landlords raised a valid takings claim, the court articulated the standard for examining whether regulation violates the California takings clause. As a matter of law, “First, government action that effectuates a permanent physical invasion of property, no matter how slight, constitutes a per se taking…Second, regulatory action that deprives an owner of ‘all economically beneficial or productive use of land’ effects a taking as a matter of law.” Id. at 423 (quoting Cwynar v. City and County of San Francisco, 90 Cal. App. 4th 637, 652 (Cal. Ct. App. 2001), holding that regulation forbidding property owners from evicting tenants so that family members could move in might constitute direct and permanent physical invasion of property by government). These two categories appear analogous to the category identified as “physical takings” in the federal approach.


The Action Apartment Ass'n court acknowledged that most cases do not fall into one of the “takings per se” categories and would require a more scrutinizing analysis through the use of a two-part test (which the court acknowledged was often applied as two separate tests). 114 Cal. Rptr. 2d at 423. First, regulation constitutes a taking if it does not advance a legitimate state interest. Id. Second, the court may find a taking by weighing the Penn Central factors and observing the economic impact upon the property owner. Id. at 425.


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