Dead men bring no claims: how takings claims can provide redress for real property owning victims of Jim Crow race riots.

• Author: Fussell, Melissa
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION I. A Real Property Remedy for Race Riot Victims A. Race Riots as a Source of Real Property Claims B. The Ocoee Riot and Real Property Claims C. Standing for Descendants of Property Takings Victims II. A TAKINGS CLAIM SOLUTION TO THE REAL PROPERTY HARMS OF RACE RIOTS A. Physical Occupation of Real Property Caused by Government Action B. Government Authorization and Endorsement of Physical Occupation of Private Land III. Deciding Takings Claims by Descendants of Race Riot Victims on the Merits A. Equitable Defenses as a Means of Overcoming Statutes of Limitation B. Redress Without the Problems that Plague Reparations Claims CONCLUSION INTRODUCTION

For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied.

--Martin Luther King, Jr., Letter from Birmingham Jail

July Perry, a black citizen, was hanged on Election Day in 1920 in Ocoee, Florida. (2) Rumor had it he tried to vote--hanging was the penalty--but some members of the black community in Ocoee whispered that he and his family were targeted because of their wealth. (3) July Perry and his family were not the only victims in Ocoee; census records show that after the year 1920, almost 500 black residents disappeared. (4) Over 100 of these residents owned their own land. (5) The series of events that unfolded has been termed "the Ocoee Riot." (6) As Election Day darkened into night, black residents were given a choice: they could either leave the town or die. (7) A deputized mob that was partially composed of government officials made good on the death threats. (8) A committee of white Ocoee residents, together with the local court, distributed black residents' property to white citizens in the aftermath; the victims were uncompensated for the most part, although some received a few dollars. (9) Congress endorsed the actions of the Ocoee government and white citizens after the fact, commending them for upholding "law and order." (10) Cruelly, the black cemetery in Ocoee--abandoned for eighty years after the riot--is located in a subdivision off Bluford Avenue, named for Captain Sims, who took ownership of Perry's land. (11) Adding insult to injury, every year the Ocoee government throws a festival celebrating the town's founders: former slave owners J.D. Starke and Captain Sims himself. (12) In 2014, the city of Ocoee paid $302,000 to celebrate the founders. (13)

The Fifth Amendment forbids the taking of private property by the government without just compensation. (14) The Supreme Court has held that outright seizure of property is unnecessary to support a takings claim for compensation; it is enough if "the government authorizes a compelled physical invasion of property." (15) When government actors require the property owner to submit to such an invasion, a taking has occurred, and the Constitution requires that the property owner be awarded just compensation. (16) The victims of the Ocoee Riot and their families have been deprived of their property for nearly one hundred years, and even during the hopeful time of Florida's Rosewood Reparations Claim Bill's success, lawmakers and attorneys alike maintained that the State of Florida had no similar reparations obligation to the victims of the Ocoee Riot. (17)

Though the lack of reparations for the Ocoee Riot victims is tragic, it need not be the end of the story. Remedies for racial injustice are not limited to civil rights actions or reparations claims bills. Alternatively, takings claims can offer a means of redress to descendants of victims who lost real property during American race riots. (18) This Note explores the possibility of such claims through the example of the little-known Ocoee Riot's most prominent victim, July Perry, the taking of his property by government officials after his lynching, and the kangaroo court proceedings (19) constructed to mislead his family members who attempted to seek redress in probate proceedings. Part I of this Note addresses real property claims as a means of redress for descendants of race riot victims. Part II outlines and applies the takings claim solution to the Ocoee Riot. Finally, Part III explains why courts should allow equitable defenses in order to decide these cases on the merits.

This specific race riot illuminates one potential path to redress, but this narrow focus should not be taken to mean that this example is a rare one. There were hundreds of race riots with very similar facts, (20) and perhaps this frequency is in part responsible for the miniscule attention that most of them received; a common occurrence does not merit as much media attention as a rare one. (21) It is not the goal of this Note to describe every such tragedy, but rather to use one riot to show how justice has been blatantly denied. The Ocoee Riot, also known as the Ocoee Massacre, (22) is but one in which hundreds of black citizens (23) disappeared in a matter of days. The takings claim analysis is well-suited to the particular facts of the Ocoee Riot, but it is applicable to other race riots as well. Admittedly, the takings claim solution is underinclusive compared to reparations avenues. However, racial injustice reparations cases have been largely unsuccessful thus far. This Note takes the position that providing some victims with a remedy is preferable to providing no victims with a remedy.

1. A REAL PROPERTY REMEDY FOR RACE RIOT VICTIMS

   The people on the south of town are being threatened that they must sell out and leave or they will be shot and burned as the others have been. (24) A. Race Riots as a Source of Real Property Claims

   While incidents of racial cleansing were very common, most of them are relatively unknown to the American public. (25) The Tulsa Riot (26) is one of the most widely recognized, perhaps because of its official, government-endorsed fact-finding commission. (27) The victims of the Tulsa Riot brought a suit using the commission's findings, but, ironically, the commission could have been a contributing factor to the survivors' failure to overcome the statute of limitations in court; the dissenting opinion pointed out that the victims were at least aware of the potential cause of action after the commission made its findings. (28)

   For many race riots, there have been no such commissions. (29) To uncover the truth, the events must be pieced together from aging sources. The identities of would-be defendants can be unclear due to the passage of time and past deception. Victims' failed attempts at redress thus far have not been unsuccessful for lack of diligence or effort. (30) In the case of Ocoee, like in the cases of so many other towns and cities across the United States, great pains have been and continue to be taken to ensure no one with dark skin ever finds out what truly happened. (31)

   There were some efforts to uncover the truth of what happened in Ocoee on Election Day, but there were no officially commissioned inquiries. (32) Even the well-meaning news reports did not address the economic losses of the victims. (33) Observers did note that there were still no black residents in Ocoee in I960. (34) Zora Neale Hurston wrote an article about it that was published posthumously in Essence; at the time of the article's publication, a local county commissioner said that the details were "best left in the past." (35)

   Race riots resulting in real property takings, like race riots themselves, are not as rare as they might seem. (36) Quite a few incidents are infamous, but many others are relatively unknown, buried by decades of fear and secrecy. (37) Although they occurred in different places, and different events were blamed as triggers, common threads exist among them. (38) Generally, the takings happened after there had been substantial accumulation of wealth in the black communities. (39) The black citizens typically fled from their communities under threat of death, too afraid to return; their aggressors either seized their property without compensation or gave them insignificant compensation. (40) As with Ocoee, white representatives were sometimes appointed to execute the estates of those who died in the riot. (41)

   2. The Ocoee Riot and Real Property Claims

      So night dusted down on Ocoee, with the mobs seeking blood and ashes, and July Perry standing his lone watch over his rights to life and property. (42) NAACP investigation records show that Perry lost his life and his property on Election Day after his friend Moses Norman attempted to vote. (43) No one ever found Norman's body and no death certificate was issued; he simply disappeared. (44) Sources show Norman to be a wealthy man, free of debt. (45) Norman owned a large amount of grove land, his own home, and even a car. (46) Although Norman never had any run-ins with the law, white citizens disliked him, in large part because he was "too prosperous--'for a n[-----]."' (47) Perry also owned his "land free and clear" (48) and had taken steps to manage and protect his property. (49) Many speculated that the wealth accumulation in the black Ocoee community provoked the white community into "taking them down." (50)

      What can be ascertained today from census records is that roughly 450 black citizens disappeared from the town of Ocoee after 1920. (51) No one can know for sure how many died; indeed, the white citizens themselves acknowledged this fact at the time. (52) However, some individual stories survive and help shed light on the events. (53)

      One man, James Langmead, who owned his land free of any encumbrances, (54) stayed with his land too long. The mob came for him when he did not leave; its members castrated him. (55) Late on election night, no one attempted to protect their property except for July Perry. (56) One woman, heavily pregnant, had stayed in...