Passive takings: the state's affirmative duty to protect property.

• Author: Serkin, Christopher
• Position: III. Passive Takings through Conclusion, with footnotes, p. 372-404

3. PASSIVE TAKINGS

   The Article so far has made a theoretical case for the plausibility of passive takings claims--that is, takings claims against the government for failing to act--but it has not yet attempted to specify when such claims actually arise. It is one thing to argue for a state's duty to act based on relatively abstract moral commitments and theoretical conceptions of efficiency and the nature of property, but it is another entirely to identify the conditions under which the Takings Clause imposes an affirmative obligation on the state. As it turns out, the possibility of passive takings claims is not only theoretically sound but also doctrinally plausible and normatively desirable.

   The fundamental insight in this Part is that the problem of distinguishing between acts and omissions--well-known in other contexts--applies also to the Takings Clause. Inaction can result in legally cognizable harms in administrative law, torts, and criminal law, and analogous situations in property can generate passive takings. By and large, omissions liability results when the distinction between acts and omissions breaks down. The work of this Part is to generalize, from these other doctrinal fields, when that distinction loses its salience. To be clear, there may be other bases for passive takings liability as well, but the goal of this Part, and of the Article more broadly, is simply to demonstrate that the category exists. Therefore, the focus here is on the places where such liability is the most likely.

   This Part begins by explicating the distinction between acts and omissions in these other areas of law and then applies those insights to illuminate the doctrinal outlines of passive takings claims. The Part concludes by addressing some of the most persuasive counterarguments against extending takings liability to governmental inaction.

   1. The Act/Omission Distinction

      In many areas of law, liability for inaction is hardly a novel concept. In fact, the Administrative Procedure Act ("APA") explicitly provides for judicial review of agency inaction. (121) While the contours of that judicial review remain limited and sharply contested, that an agency can violate federal law through failing to act is reasonably well established. (122) As Justice Marshall explained, "[O]ne of the very purposes fueling the birth of administrative agencies was the reality that governmental refusal to act could have just as devastating an effect on life, liberty, and the pursuit of happiness as coercive governmental action." (123) He should have added property to that mix of interests at stake. The harm resulting from inaction can be just as damaging as the harm resulting from overt action. (124)

      Sometimes the distinction between action and inaction entirely breaks down. As Professor Biber notes, "[A]n agency's decision not to release information pursuant to the Freedom of Information Act ... could be treated either as an agency action (decision not to release), or a failure to act (failure to comply with the statute's requirements that information must be released)." (125) The problem was on stark display in Minnesota Pesticide Information & Education, Inc. v. Espy. (126) In that case, the plaintiffs sued following the U.S. Forest Service's failure to prepare an environmental impact statement for its decision not to use a particular herbicide to control vegetation. (127) The Supreme Court reasoned that the Forest Service had "effectively elected a course of temporary inaction" for which review was unavailable, even though the decision amounted to adopting an alternative strategy of vegetation control. (128) The distinction between action and inaction becomes especially blurry in instances where the government has exercised substantial control over an area. Then, its decision not to act allocates harm as surely as a decision to act--whether it is the Forest Service's choice not to use pesticides or a town's choice not to permit sea walls. Of course, there are many situations in which the difference between action and inaction is clear, but, when it is not, the different legal consequences that traditionally follow become difficult to justify. (129)

      Broader theories of liability reflect this same impulse, whether they originate in tort or criminal law. (130) Failing to throw a rope to a drowning swimmer is one thing; failing to hit the brakes to avoid a pedestrian while driving is something else altogether. (131) Both can be characterized as omissions (or inaction), but there is a critical difference between the two examples. In the latter, the driver "played a part in the creation of the very danger that he subsequently failed to abate." (132) As Professor Weinrib cogently explains, there is a difference between "real nonfeasance" and "pseudo-nonfeasance," which is characterized by a complicity in creating the underlying risk. (133) Setting in motion events that expose someone to injury or harm can create an affirmative duty to act in order to address that harm.

      Indeed, focusing too narrowly on an affirmative-act requirement can obscure the imposition of real and cognizable harm. One traditional view holds that a physical act, involving some volitional movement, is necessary for criminal liability. (134) But what of a parent who fails to feed an infant and so starves her to death? (135) This is criminally culpable, and for the same reason discussed above: the infant and her welfare are entirely within the control of her parent. Professor Husak aptly terms this the control principle, which can serve as a basis for liability even in the absence of an obvious volitional act. (136)

      The overarching intuition about the hazy boundary between acts and omissions is that liability should depend on the extent of the defendant's entanglement with the conditions giving rise to the injury. (137) That entanglement can occur at some earlier point in time--as when the driver gets in a car--or through sufficient ongoing control over the relevant conditions. In other words, liability does not necessarily depend on some specific and decontextualized act.

      This intuition is consistent with one of the narrow contexts in which the Supreme Court has actually recognized the state's affirmative constitutional obligation: to protect people in state custody. While the cases establishing this obligation all involve liberty interests and are rooted in substantive due process, their reasoning extends naturally and even more broadly to property.

      The leading case to wrestle with the state's duty to protect is DeShaney v. Winnebago County Department of Social Services. (138) There, the Supreme Court rejected a due process challenge based upon Wisconsin's failure to protect a child from his abusive father. (139) The facts of the case are horrifying, but the Court's reasoning is illuminating. Joshua DeShaney, four years old, was in his father's custody. Several people, including physicians and state workers, suspected that Joshua's father was abusing him. The state did not intervene to remove Joshua from his father's custody, and Joshua's father eventually beat him so badly that he caused permanent brain damage resulting in lifetime institutionalization. Joshua and his mother sued the state and various state employees under 42 U.S.C. [section] 1983, alleging that they had deprived Joshua of his liberty without due process of law. The Supreme Court rejected the challenge, holding that the Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." (140) This opinion, of course, represents an entirely orthodox view of the Constitution as enshrining exclusively negative liberties. (141)

      While the Court in DeShaney rejected the plaintiffs' due process claims for the state's failure to act, it did so only after identifying and distinguishing cases in which the state was held to have ongoing affirmative obligations; namely, when the state incarcerates someone or involuntarily commits someone for psychological or medical purposes. In other words, the state is obligated to act when it has taken control of someone and has rendered that person especially vulnerable to a subsequent harm. (142) As the Court explained, "While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." (143) Indeed, "[the State] placed [plaintiff] in no worse position than that in which he would have been had it not acted at all." (144) The inference, though, is that the state may have an affirmative duty to protect if it created a danger or left people more susceptible to a danger. (145)

      This same inference has a direct application to the Takings Clause. (146) Certain strands of takings cases have, in fact, implicitly rejected a firm line between governmental action and inaction, although in ways that have largely gone unnoticed. In the zoning context, in particular, a planning commission's rejection of a request for a rezoning is conventionally cognizable as a taking and is treated by courts as conceptually indistinguishable from a zoning change. (147) By and large, these courts have ignored the act/omission distinction and have simply assumed that denying a zoning change is a governmental act subject to traditional takings analysis.

      That result, however, should be surprising. Refusing to change the law does not usually trigger takings liability. Imagine, for example, that someone petitions Congress to compel banks to write down the principal on underwater mortgages. If Congress rejects the request--either by refusing to take up the matter or by voting it down--this conduct will not give rise to a takings claim. Under a traditional takings analysis, enacting legislation and failing to enact legislation are not equivalent. As a structural matter, though, Congress's decision in...