REVISED - March 5, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CHARLES FREEMAN and ROSALYN BROWN,
CITY OF DALLAS,
Appeal from the United States District Court for
Northern District of Texas
February 22, 2001
Before JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE,
EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit
EDITH H. JONES, Circuit Judge:
The City of Dallas served notices on the owners of two vacant,
deteriorated apartment houses, warning them to repair or demolish the
structures. The owners fought the order according to City procedures but lost.
After the City tore down the condemned buildings, the owners filed suit in
federal court alleging violations of the Fourth Amendment and the Due Process
Clause. A divided panel of this court held that although the City procedures
complied with due process, the City must also obtain a pre-demolition warrant
of some sort in order to satisfy the Fourth Amendment. This court, sitting en
banc, disagrees with the panel majority's interpretation of the Fourth
Amendment and denies relief to the property owners. A warrant is unnecessary
when a municipality seizes property that has been declared a nuisance by means
of established police power procedures.
Between December 1992 and April 1993, Rosalyn Brown acquired two vacant,
eight-unit apartment buildings in Dallas, Texas located at 2621 and 2611 Meyers
Street. Brown paid $10.00 for the first building and $1.00 for the second,
which had suffered fire damage prior to purchase. On August 11, 1994, Brown
transferred a one percent undivided interest in both buildings to her brother,
Charles Freeman. The buildings remained vacant during the entire period of
Brown intended to rent the apartment units after making repairs. To this
end, she asked Freeman to be the general contractor in charge of renovating the
apartments. Freeman was neither a registered engineer or architect, nor did he
possess a general contractor's license or trade license from the State of
Texas. No construction company or crew worked for him.
In April and July of 1993, inspectors from the Dallas Department of
Housing and Neighborhood Services (the "Department") cited the plaintiffs' two
apartment buildings for non-compliance with the City's Minimum Urban
Rehabilitation Standards Code (the "Code"). According to the Department's
inspectors, the buildings together needed nearly $200,000 in repairs to comply
with the Code. When the Code violations were not corrected, the Department
referred the matter to the Urban Rehabilitation Standards Board ("URSB") and
The URSB was established by the City of Dallas to determine whether
property condition reports filed by city inspectors identify violations of the
City's building codes. The URSB comprises thirty private citizen members (and
eight alternates) who are appointed by the Dallas City Council. The URSB may
determine, after a hearing, whether a given structure is an "urban nuisance"
and take various remedial measures. The URSB is authorized by city ordinance to
order repairs, receivership, the closing and vacating of buildings, demolition,
and civil penalties of up to two thousand dollars a day against property owners
who fail to repair or demolish a structure after the board has issued a valid
determination and remedial order. Dallas, Tex., Code ch. 27, art. II, §
The URSB functions through hearing panels composed of members of the
URSB. The Dallas City Code establishes the procedure to be used by the panels.
At a hearing, "an owner, lessor, occupant, or lienholder may present witnesses
in his own behalf and is entitled to cross-examine any witnesses appearing
against him." Dallas, Tex., Code ch. 27, art. II, § 27-9(c). The decision
of the hearing panel is final except that rehearings may be granted in certain
instances. The code also gives an affected property owner an absolute right to
appeal the panel decision to state district court. Dallas, Tex., Code ch. 27,
art. II,§ 27-9(e). Under state law, the court considers whether the
landowner's substantial rights have been prejudiced because the URSB decision
violates constitutional or statutory law; exceeds URSB's authority; is based on
unlawful procedure or any other error of law; is unsupported by substantial
evidence; or is arbitrary or capricious or an abuse of discretion.
TEXAS GOV'T CODE § 2001.174(2).
After receiving the Department's reports on plaintiffs' properties, the
URSB conducted a title search and mailed a notice of hearing on each of the
properties to the owner of record. The notice
announced that the URSB might order demolition to remedy the Code offenses. It
further stated that the property owner would "be given an opportunity to
present evidence and witnesses if so desired."
In preparation for the hearings, Department staffers briefed the panel
of URSB members assigned to decide the fate of the Meyers Street properties.
They provided the panel members with information on the properties, including
repair cost estimates, and accompanied some of them on a tour of the
Freeman appeared at the hearings, identifying himself as the
"attorney-in-fact for Brown" and as an owner of 2611 and 2621 Meyers Street.
The panel looked at pictures of the structures, questioned Freeman about his
plans for repair, and asked whether he had the funds for repair. Freeman
testified that he lacked funds at present and asked for more time to make
repairs. Expressing doubt about Freeman's ownership and his ability to finance
repairs, the panel unanimously voted to demolish each apartment building as an
Following the hearing, Freeman signed notices of demolition for both
apartment buildings. He then asked for and received a rehearing from the URSB.
Two panel members visited the properties before the rehearings. They examined
the exterior of the apartment building at 2611 Meyers Street. At 2621 Meyers
Street, they ran into Freeman. He showed them repairs he had made inside that
property, and they told him to bring pictures of these repairs to the
At the rehearing, the Department showed pictures of the apartment
buildings' exteriors. In response, Freeman testified that he thought he could
acquire most of the repair materials at little or no cost. He further stated
that he hoped to finance repairs through a loan from the City; he had received
a commitment from relatives in the construction business to help him make
repairs if he received a City loan.
Freeman also submitted pictures of one unit in the 2621 Meyers Street
building that he had repaired, and he presented a list of repair materials that
he had already collected. He further testified that he could renovate each unit
at 2621 Meyers Street for $2000. Though panel members reacted skeptically and
reminded him of the Department's repair cost estimates, Freeman did not inquire
about the basis for these estimates nor did he ask to question the Department
officials responsible for them.
The panel again voted to demolish plaintiffs' buildings. The vote was
unanimous on the 2611 Meyers Street property and was split five to two on the
2621 Meyers Street property. Freeman received a notice of demolition for each
property at the end of the rehearing, and he signed them. The notice advised
that the panel's decision could be appealed within twenty days to state
district court for review. Freeman and Brown did not appeal the URSB decision
to state district court.
When Brown and Freeman failed to demolish the buildings within thirty
days, the City hired a contractor to do the work. The two vacant structures
were demolished in late December 1994, and the costs of the demolition were
assessed against Freeman and Brown in the total amount of about $16,000.
A year and a half later, Freeman and Brown filed suit against the City
of Dallas under 42 U.S.C. § 1983. They alleged that the demolition of
their apartment buildings without first obtaining a judicial warrant
constituted an unreasonable seizure in violation of the Fourth Amendment. They
also alleged that the URSB's procedure for condemning and demolishing their
apartment buildings and for imposing liens on the remaining realty denied them
procedural due process in violation of the Fifth and Fourteenth Amendments.
Freeman and Brown moved for summary judgment on the Fourth Amendment
claim while the City moved for summary judgment on all claims. The district
court granted the plaintiffs' motion on the Fourth Amendment claim and granted
the City's motion on the Due Process claims. Following a one-day trial on
damages for the Fourth Amendment violation, the district court accepted the
jury's verdict and entered final judgment against the City of Dallas in the
amount of $20,000 plus interest.
A divided panel of this Court affirmed the district court's summary
judgment for the property owners with respect to the Fourth Amendment claim,
while also affirming the rejection of the plaintiffs' Due Process claims. See Freeman v. City of Dallas,
186 F.3d 601 (5th Cir. 1999), reh'g en banc granted, 200 F.3d 884 (5th
Cir. 1999). We granted rehearing en banc to reconsider the Fourth Amendment
The panel majority reasoned toward a violation of the Fourth Amendment
in three steps. First, the demolition of the Freemans' apartment houses was a
"seizure" for Fourth Amendment purposes. Second, the seizure had to be preceded
by a warrant. Third, a warrantless seizure, even if it occurred following
constitutionally adequate local condemnation procedures, is unreasonable and
therefore unconstitutional. While we agree that the City seized the Freemans'
real property for demolition,
we do not accede to the panel majority's inflexible warrant requirement
in this context or its supplanting of the Fourth Amendment reasonableness
inquiry with such a requirement. The text of the Fourth Amendment conspicuously
fails to require a warrant for every government search or seizure. And the
controlling caselaw emphasizes reasonableness, a balancing of governmental
versus private interests, as the touchstone of the Fourth Amendment.
Since the relevant facts are undisputed, summary judgment was granted on
the merits as a matter of law, see Fed. R. Civ. P. 56(c). We review the
district court's decision de novo. See United States v.
Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).
The Fourth Amendment, made applicable to the States by the Fourteenth
Amendment, Ker v. California, 374 U.S. 23, 30, 83 S. Ct. 1623, 1628
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
This provision contains two separate and independent clauses. The first
proscribes "unreasonable searches and seizures," and the second prescribes the
narrow conditions under which a warrant may issue. Nothing in the text suggests
that warrants are required for every search or seizure, nor is the existence of
a warrant a sine qua non for a reasonable search or seizure. While the
text plainly mandates reasonableness in the seizure, it does not instruct
whether a warrant is necessary to ensure the reasonableness of the City's
To determine the necessity of a warrant here, we might consider common
law at the time the Fourth Amendment was adopted, see Wyoming v.
Houghton, 526 U.S. 295, 299, 119 S. Ct. 1297, 1300 (1999), but, contrary to
plaintiffs' assertions, the quest would be fruitless. Confusing the demands of
due process with the warrant clause, plaintiffs' historical argument observes
that, at common law, apart from cases where a nuisance posing an imminent
danger could be summarily abated by self-help, structures were ordinarily
determined to be nuisances in criminal or civil abatement actions. Because the
courts at the time of the framing of the Constitution oversaw nuisance law,
plaintiffs assume that they must continue constitutionally to play a role under
the aegis of the Warrant Clause. There are two serious flaws in this argument.
First, none of the cases cited by the plaintiffs deals with warrants. Instead, cases from the nineteenth century
involved judicial review to determine whether structures or activities were in
fact injurious under state and local police power. Other cases evaluated nuisance determinations
by the standards of procedural and substantive due process. Whatever these cases may imply about the
historical view of the reasonableness of particular nuisance decisions, they
say nothing about employing the Warrant Clause to review those decisions.
Second, the plaintiffs theorize that because nuisance determinations
historically involved judicial procedures, such determinations can only be
"reasonable" today if they are subject to plenary court review. This theory is
fundamentally at odds with the development of governmental administrative
agencies. Characteristically, agency decisions are deferred to by the courts.
Plaintiffs apparently seek, however, to broaden courts' involvement in nuisance
decision-making contrary both to the deferential standard of judicial review of
administrative decisions and to the broad standards for issuance of warrants.
None of the decisions produced by plaintiffs justifies reverting to the 18th
century judicial role in nuisance abatement. This court's comment in rejecting,
over twenty-five years ago, a similar argument for reinstituting common law
judicial review of nuisance determinations bears repeating:
[F]or the purposes of marking the limits of federal constitutional due
process the common law of nuisance must be considered a jurisprudential
artifact, interesting but not controlling.
Traylor v. City of Amarillo, 492 F.2d 1156, 1159 (5th Cir.
1974) (Goldberg, J.).
Even more emphatically, the common law of nuisance affords no basis for
creating a per se judicial warrant requirement that is redundant of procedural
and substantive safeguards inherent in modern administrative law and explicit
municipal nuisance ordinances.
Where history yields no firm answer, a search or seizure must be
evaluated under traditional standards of reasonableness. Wyoming, 526
U.S. at 300, 119 S. Ct. at 1300. There is no Supreme Court caselaw directly on
point. Still, the Court has expressed an overarching test of reasonableness
that is antagonistic to an inflexible warrant requirement. Thus, the
reasonableness standard is one that reflects a "'careful balancing of
governmental and private interests.'" Soldal, 506 U.S. at 71, 113 S. Ct.
at 549, (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct.
733, 742 (1985)). More recently, the Court reiterated, "as the text of the
Fourth Amendment indicates, the ultimate measure of the constitutionality of a
government search is reasonableness." Vernonia School Dist. 47J v.
Acton, 515 U.S. 646, 652, 115 S. Ct. 2386, 2390 (1995). Vernonia also clearly distinguishes
between the reasonableness of government searches and the warrant
Where a search is undertaken by law enforcement officials to discover
evidence of criminal wrongdoing, this Court has said that reasonableness
generally requires the obtaining of a judicial warrant. Warrants cannot be
issued, of course, without the showing of probable cause required by the
Warrant Clause. But a warrant is not required to establish the
reasonableness of all government searches; and when a warrant is not
required (and the Warrant Clause therefore not applicable), probable cause is
not invariably required either.
Vernonia, 515 U.S. at 653, 115 S. Ct. at 2390-91 (emphasis added)
(citations omitted). Under these decisions, the fundamental inquiry, which we
will address in detail later, is the reasonableness of the City's seizure.
The property owners contend, however, and this court's panel opinion
held that, the seizure of their property was per se unreasonable unless the
City obtained a warrant to enforce its demolition order. In support of this
position, plaintiffs and the panel majority rely on a handful of cases. Their
reliance is misplaced.
In companion cases, the Court did extend a warrant requirement of a sort
to administrative inspections of private homes and business properties, the
purpose of which was to verify compliance with municipal health and safety
codes. Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S.
Ct. 1727 (1967); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737
(1967). Evidence of code violations uncovered by the warrantless searches might
lead to fines or other penalties. Balancing the need for searches against the
property owners' privacy, the Court concluded that warrants were necessary to
check the unfettered discretion code enforcement officers had in the field. A
property owner had "no way of knowing whether enforcement of the municipal code
involved requires inspection of his premises, no way of knowing the lawful
limits of the inspector's power to search, and no way of knowing whether the
inspector himself is acting under proper authorization." Camara, 387
U.S. at 532. Only with the protection of an administrative warrant would
property owners avoid capricious or overbroad searches.
Camara and See are distinguishable from this case. First,
since searches to gather evidence of regulatory noncompliance invade citizens'
privacy "without particularized suspicion of misconduct," they need only satisfy standards of
administrative reasonableness. Marshall v. Barlow's, Inc., 436 U.S. 307,
320, 98 S. Ct. 1816, 1824 (1978) (requiring only administrative reasonableness
for regulatory searches); Griffin v. Wisconsin, 483 U.S. 868, 877 n.4,
107 S. Ct. 3164, 3170 n.4 (1987) (requiring only administrative reasonableness
for regulatory searches). Here, the evidence of municipal code violations had
already been obtained by means unchallenged by the landowners, and the
administrative adjudication of noncompliance has occurred. The landowners
availed themselves of two hearings resulting in a decision of the seven-member
panel of the URSB, and after these proceedings, there remained a possibility of
state court judicial review. What is sought by these plaintiffs is not
protection against an unregulated search for evidence of wrongdoing, but
additional protection to forestall the result of already-determined
Second, the URSB, unlike the field code inspectors in Camara and
See, could not operate with unbridled discretion. The municipal code
specifies grounds on which a building may be determined to be a public
The property owners' right to defend the case against their apartment
buildings was procedurally secure. Only by impugning the institutional
integrity of the URSB can one arrive at the conclusion, unsupported in this
record, that it exercised standardless discretion and either arbitrarily
enforced the municipal code or failed to consider the property owners'
evidence. The nature of the URSB's adjudicative function imposes more numerous and more transparent
constraints on the URSB than did the evidence-gathering function performed by
field officers randomly inspecting private buildings in Camara and
Third, it is hard to understand what protection the
Camara-approved administrative warrant would provide for these
plaintiffs. Camara relaxed the probable cause standard for issuance of
such warrants, requiring only a more general determination that "legislative or
administrative standards for conducting an area inspection" be reasonable.
Camara, 387 U.S at 538, 87 S. Ct. at 1735-36. Camara-style
administrative search warrants need not be issued by judicial officers.
See Griffin v. Wisconsin, 483 U.S. 868, 877 and n.5, 107 S. Ct.
3164, 3170 and n.5 (1987). Plaintiffs also admit that administrative search
warrants may be issued ex parte. While the Court's standards may meaningfully
constrain officials who enter private property for inspection purposes, they
are obviously ill-suited to regulate completed administrative condemnation
proceedings. If a warrant of some type is to be imposed in lieu of state
judicial review, it must be on terms different from the Camara warrants
in order to assist these landowners. But if the terms are different, then a
different justification is necessary.
Camara and See thus doubly fail to support the plaintiffs'
argument. Those cases imply either that seizure of the apartment buildings was
preceded by reasonable, rigorous procedures that protected the property owners'
rights, or they mandate an ex parte, possibly nonjudicial administrative
warrant shorn of probable cause, which does the property owners no good. While
useful in their sphere, these cases fail to support a warrant following a
completed nuisance abatement procedure.
The landowners have also cited Soldal in support of their warrant
argument, but Soldal is not even a warrant case. The only issue decided
by Soldal was whether the nonjudicial eviction-by-relocation of the
tenants' mobile home, with sheriffs' deputies assisting, constituted a seizure
within the Fourth Amendment. The Court refused to consider whether the seizure
was constitutionally reasonable, as it stated:
Whether the [4th] Amendment was in fact
violated is, of course, a different question that requires determining if the
seizure was reasonable. That inquiry entails the weighing of various factors
and is not before us.
Soldal, 506 U.S. at 62, 113 S. Ct. at 543.
In the final case offered by plaintiffs, the Supreme Court held that the
IRS must obtain a warrant to search private premises to locate property that
may be seized to enforce a valid federal tax lien. GM Leasing Corp. v.
United States, 429 U.S. 338, 97 S. Ct. 619 (1977). More significantly for
present purposes, the Court distinguished a search for unidentified nonexempt
property from a seizure, and it rejected requiring a warrant for seizures of
the taxpayer's vehicles from property where the seizures "did not involve any
invasion of privacy." 429 U.S. at 351, 97 S. Ct. at 628. Similarly in this
case, the plaintiffs retained little or no reasonable expectation of privacy in
their dilapidated, uninhabited rental properties after the URSB had entered
orders declaring them an urban nuisance, and the owners had failed to abate the
GM Leasing also states that where seizures are sustainable under
the Due Process Clause, constitutional analysis of the same acts under the
Fourth Amendment "is similar and yields a like result." Id. at n.18.
Texas's administrative condemnation procedures have withstood due process
challenge. Traylor v. City of Amarillo, 492 F.2d 1156 (5th Cir. 1974).
Far from supporting the plaintiffs, GM Leasing thus forecasts, even if
it does not compel, that a balancing of the public and private interests at
stake will favor the public interest in nuisance abatement after the conclusion
of adequate administrative proceedings.
Not only does plaintiffs' theory lack support in Supreme Court caselaw,
but it enjoys only minority support among the federal circuits. The Eighth and
Sixth Circuits have found no Fourth Amendment bar to warrantless condemnation
and eviction proceedings, where satisfactory administrative procedures preceded
them. Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996); Hroch v.
City of Omaha, 4 F.3d 693 (8th Cir. 1993); Flatford v. City of
Monroe, 17 F.3d 162, 170 (6th Cir. 1994). On the other hand, a divided
panel of the Ninth Circuit held that a warrant was necessary before city
officials could enter private property to seize previously-condemned
automobiles. Conner v. City of Santa Ana, 897 F.2d 1487, 1495 (9th Cir.
1990). We disagree with Conner for reasons stated in Judge Trott's
dissent, 897 F.2d at 1494-98, and based on our evaluation of Fourth Amendment
Although the City did not have to obtain a warrant to effectuate a valid
seizure and demolition of the nuisance structures, the fundamental Fourth
Amendment question of reasonableness remains, a question decided by balancing
the public and private interests at stake.
As the Supreme Court has acknowledged, "the public interest demands that
all dangerous conditions be prevented or abated." Camara, 387 U.S. at
537, 87 S. Ct. 1735. Regulation of nuisance properties is at the heart of the
municipal police power. It is eminently
reasonable for a city to prescribe minimum property maintenance standards to
protect the public and to maintain adjacent land values. Nevertheless, a city
may not arbitrarily enter abatement orders or declare the existence of
nuisances with no underlying standards. Texas law forbids such actions, and the City's ordinance exemplifies the
state statutes' criteria. Contrary to the landowners' argument, Dallas's
minimum standards for property owners assure structural soundness, public
health and safety and human habitability. The Dallas ordinance is not concerned
with aesthetic or non-functional values. The ordinance falls well within the
City's police power and thus within a sphere that courts have traditionally
been reluctant to invade.
Prescription of standards necessitates their enforcement, and it is also
reasonable that nuisance abatement be one of the enforcement mechanisms
available to the City. While abatement is permissible, however, the City
ordinance affords property owners the opportunity to contest the determination
of non-compliance, to repair their property, or to seek other remedies.
Dallas's procedures include reasonable notice to and time limits upon
landowners' actions, multiple hearing possibilities, flexible remedies, and
judicial review in state court under typical criteria for review of
administrative actions. That these
standards comport with due process suggests the Fourth Amendment reasonableness
of the URSB's final remedial orders.
With regard to the landowners' interests, the Fourth Amendment protects
only those expectations of privacy that society recognizes as "legitimate".
New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S. Ct. 733, 741 (1984).
"What expectations are legitimate varies, of course, with context ... [and] . .
. may depend upon the individual's legal relationship with the State".
Vernonia, 515 U.S. at 654, 115 S. Ct. at 2391. Because the Dallas
nuisance standards are straightforward and the administrative procedure is
adequate, these property owners' expectation of privacy in the nuisance
structures after the remedial orders became final was severely diminished. As
vacant commercial properties, the structures were not subject to the same
degree of privacy protection as non-business property. New York v.
Burger, 482 U.S. 691, 700, 107 S. Ct. 2636, 2642 (1987); O'Connor v.
Ortega, 480 U.S. 709, 725, 107 S. Ct. 1492, 1501 (1987). Further, nearly a
year had passed since the plaintiffs were informed of their structures'
non-compliance. While they did defend themselves before the URSB, they made no
significant progress in remedying violations whose total repair cost was nearly
$200,000. Whereas the landowners in Soldal were the victims of
non-judicial eviction without prior notice, these plaintiffs had ample notice
and a full panoply of administrative remedies. Finally, since the rent
properties were uninhabited, the demolition, unlike the eviction carried out in
Soldal, did not invade anyone's personal privacy.
Requiring an administrative warrant of some sort after the URSB
proceedings would not have enhanced the landowners' security or privacy. A
Camara warrant could be sought ex parte; it could be obtained
solely on the basis of the completed administrative record; no requirements of
pre- or post-warrant notification of the City's intended actions were
necessary. If the purpose of a warrant is to obtain some neutral review of the
URSB orders, this procedure is less protective of the landowners than existing
judicial review in state court.
The ultimate test of reasonableness is fulfilled in this case by the
City's adherence to its ordinances and procedures as a prelude to ordering the
landowners to abate their nuisance structures. The Supreme Court originally extended an
administrative warrant requirement to civil investigations because "the basic
purpose of [the Fourth] Amendment ... is to safeguard the privacy and security
of individuals against arbitrary invasions by governmental officials."
Camara, 387 U.S. at 528, 87 S. Ct. at 1730 (emphasis added); see
also Marshall, 436 U.S. at 312, 98 S. Ct. at 1820. Whatever else
the City's enforcement of its municipal habitation code might be, it is
sufficiently hedged about by published standards, quasi-judicial administrative
proceedings, and flexible remedies that it is not arbitrary. In the
context of reviewing civil administrative and regulatory enforcement of laws
enacted pursuant to the traditional police power, Fourth Amendment
reasonableness means non-arbitrariness. The Fourth Amendment was not violated
For all these reasons, we conclude that the seizure and demolition of
the plaintiffs' apartment buildings, after those structures were condemned
according to City ordinance and state law, were reasonable under the Fourth
Amendment. The judgment against the City is REVERSED.
DENNIS, Circuit Judge, with whom WIENER, BENAVIDES and STEWART, Circuit
Judges, join in Part I only, dissenting:
The en banc majority reaches the conclusion that, while binding Supreme
Court precedent interpreting the Fourth Amendment's proscription of
unreasonable searches would clearly require the URSB to secure a warrant from a
neutral judicial officer to conduct an inspection of the two apartment
buildings in the absence of consent or exigent circumstances, the Fourth
Amendment's proscription of unreasonable seizures, as illumined by the same and
additional Supreme Court precedent, does not require the URSB to secure such a
warrant before demolishing the same apartment buildings. Unable to square this
anomalous result with the language of the Fourth Amendment or Supreme Court
jurisprudence, I dissent.
I. FOURTH AMENDMENT
A. Camara, Soldal, and
The Freeman panel majority holding that the URSB violated the
owners' Fourth Amendment rights correctly follows the Supreme Court's Fourth
Amendment decisions in Soldal v. Cook County, Ill., 506 U.S. 56 (1992),
and Camara v. Mun. Court of San Francisco, 387 U.S. 523 (1967).
In Frank v. Maryland, 359 U.S. 360 (1959) (5-4 decision),
overruled by Camara, 387 U.S. at 523 (1967), the Court upheld, by a
five-to-four vote, a state court conviction of a homeowner who refused to
permit a municipal health inspector to enter and inspect his premises without a
search warrant. In his majority opinion, Justice Frankfurter suggested that the
individual and his private property are fully protected by the Fourth Amendment
only when the individual is suspected of criminal behavior, and that a warrant
is not required for an administrative inspection because the "power [to inspect
dwellings to maintain community health] would be greatly hobbled by the blanket
requirement of the safeguards necessary for a search of evidence of criminal
acts." Id. at 372.
In Camara, 387 U.S. at 534, the Court expressly overruled
Frank v. Maryland, holding that under the Fourth Amendment a lessee of
the ground floor of an apartment building had a constitutional right to insist
that San Francisco Department of Public Health Housing Code inspectors obtain a
judicial warrant to inspect his premises, and that he could not be
constitutionally convicted for refusal to consent to the inspection. The Dallas
URSB advances the same "public necessity" arguments in support of warrantless,
non-exigent seizures and destruction of private property that the Court firmly
rejected as insufficient to uphold San Francisco's warrantless, non-exigent
housing code inspections in Camara. San Francisco argued that (i) the
ordinances authorizing inspections are hedged with safeguards and the
inspector's decision to enter must comply with the standard of reasonableness
even if he may enter without a warrant, id. at 531; (ii) the warrant
process could not function effectively in this field, id. at 532; and
(iii) the public interest demands warrantless administrative searches as the
only effective means of enforcing minimum fire, housing, and sanitation
standards, id. at 533. As Justice White, writing for the Camara
In our opinion, these arguments unduly discount the purposes behind
the warrant machinery contemplated by the Fourth Amendment. Under the present
system, when the inspector demands entry, the occupant has no way of knowing
whether enforcement of the municipal code involved requires inspection of his
premises, no way of knowing the lawful limits of the inspector's power to
search, and no way of knowing whether the inspector himself is acting under
proper authorization. These are questions which may be reviewed by a neutral
magistrate without any reassessment of the basic agency decision to canvass an
area.... We simply cannot say that the protections provided by the warrant
procedure are not needed in this context; broad statutory safeguards are no
substitute for individualized review, particularly when those safeguards may
only be invoked at the risk of a criminal penalty.
... It has nowhere been urged that fire, health, and housing code
inspection programs could not achieve their goals within the confines of a
reasonable warrant requirement. Thus, we do not find the public need argument
In summary, we hold that administrative searches of the kind at issue
here are significant intrusions upon the interests protected by the Fourth
Amendment, that such searches when authorized and conducted without a warrant
procedure lack the traditional safeguards which the Fourth Amendment guarantees
to the individual, and that the reasons put forth in Frank v. State of Maryland
and in other cases for upholding these warrantless searches are insufficient to
justify so substantial a weakening of the Fourth Amendment's protections.
Id. at 532-34.
Thus, Camara held that, in the absence of consent or an emergency
situation, the Fourth Amendment requires that a warrant be issued by a judicial
officer before a government entity may inspect private property to enforce
minimum health and safety standards for the prevention of "fires and epidemics"
or "unsightly conditions adversely affect[ing] the economic values of
neighboring structures." Id. at 534, 535, & 539-40.
In the second part of its opinion, the Court in Camara discussed
the type of "probable cause" required for a warrant to enter and inspect
private property. The Court concluded that "'a health official need [not] show
the same kind of proof to a magistrate as one must who would search for the
fruits or instrumentalities of crime.'" Id. at 538 (quoting
Frank, 359 U.S. at 383) (Douglas, J., dissenting)). Instead, the
satisfaction of reasonable legislative or administrative standards for
inspections may be used to show "probable cause," such as the passage of time,
the nature of the buildings, the condition of the entire area, or other factors
not necessarily dependent upon specific knowledge of the condition of a
particular dwelling. See id. "[R]easonableness is still the
ultimate standard. If a valid public interest justifies the intrusion
contemplated, then there is probable cause to issue a suitably restricted
warrant." Id. at 539.
In Soldal, 506 U.S. at 61, the Court held that the presence of
deputy sheriffs for the purpose of forestalling the Soldal family's resistance
while a trailer park operator seized and removed the family's house trailer
from the park, without a warrant, eviction judgment, other judicial order, or
exigent circumstances, clearly implicated the Soldals' Fourth Amendment rights.
In an unanimous opinion by Justice White, the Court rejected the Seventh
Circuit's narrow reading of the Amendment, which the Circuit construed as
safeguarding only privacy and liberty interests while leaving unprotected
possessory interests when neither privacy nor liberty is at stake. Id.
at 62. The Court held that "[t]he Amendment protects the people from
unreasonable searches and seizures of 'their persons, houses, papers, and
effects.' This language surely cuts against the novel holding below, and our
cases unmistakably hold that the Amendment protects property as well as
privacy." Id. The Court pointed to its decisions explaining that a
"seizure" of property occurs when "'there is some meaningful interference with
an individual's possessory interests in that property,'" id. at 61
(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)), and
concluded: "We fail to see how being unceremoniously dispossessed of one's home
in the manner alleged to have occurred here can be viewed as anything but a
seizure invoking the protection of the Fourth Amendment." Id.
The Court in Soldal stopped short of deciding whether the seizure
was a violation of the Fourth Amendment because the Seventh Circuit had failed
to reach that issue due to its incorrect decision that there had been no
"seizure." A careful reading of the Court's unanimous Soldal opinion,
however, strongly suggests that a violation had occurred under Fourth Amendment
law because (1) the dispossession of the Soldals of their trailer home was a
"seizure" because it was a "meaningful interference" with their possessory
interest, id. at 61, not an insignificant interference associated with a
"garden-variety" landlord-tenant or commercial dispute, id. at 72; (2)
the deputies were acting under color of state law in assisting in the seizure,
id. at 60 n.6 & 71; (3) the officers were not acting pursuant to a
warrant or other judicial order, id. at 58 and 71; (4) there was no
probable cause to associate the seized property with criminal activity,
id. at 68; and (5) there was no emergency situation because the seizure
could have "properly awaited the state court's judgment," id. at 71.
The Court noted that the Seventh Circuit had correctly acknowledged
that, under the Supreme Court's precedents, the Fourth Amendment's protection
applies in the civil as well as the criminal context. Id. at 67. But the
Supreme Court concluded that the Circuit had erred when it seemingly construed
the Amendment to protect only against seizures that are the outcome of a
search. Id. at 68. "[O]ur cases are to the contrary and hold that
seizures of property are subject to Fourth Amendment scrutiny even though no
search within the meaning of the Amendment has taken place." Id. The
Supreme Court explained that the Seventh Circuit's construction of the Fourth
Amendment to protect only against seizures that are the outcome of a search is
at odds with the Supreme Court's plain- view cases in which seizures of
property are subject to Fourth Amendment scrutiny even though no search within
the meaning of the Amendment has taken place. Id. at 68 (citing
United States v. Jacobsen, 466 U.S. at 120-25; United States v.
Place, 462 U.S. 696, 706-07 (1983); Cardwell v. Lewis, 417 U.S. 583,
588-89 (1974)). "For the plain-view cases clearly state that, notwithstanding
the absence of any interference with privacy, seizures of effects that are not
authorized by warrant are reasonable only because there is probable cause to
associate the property with criminal activity." Id. at 69.
Significantly, the Court also made it clear that the Fourth Amendment
protections are triggered when a government entity seizes a building to enforce
compliance with housing regulations, stating:
In our view, the reason why an officer might enter a house or
effectuate a seizure is wholly irrelevant to the threshold question whether the
Amendment applies. What matters is the intrusion on the people's security from
governmental interference. Therefore, the right against unreasonable seizures
would be no less transgressed if the seizure of the house was undertaken to
collect evidence, verify compliance with a housing regulation, effect an
eviction by the police, or on a whim, for no reason at all. As we have observed
on more than one occasion, it would be "anomalous to say that the individual
and his private property are fully protected by the Fourth Amendment only when
the individual is suspected of criminal behavior."
Id. at 69 (quoting Camara, 387 U.S. at 530).
Finally, the Court in Soldal characterized as "exaggerated" the
fears of the Seventh Circuit and Cook County that applying the Fourth Amendment
in this context will federalize areas of law traditionally the concern of the
states, such as routine repossessions, negligent actions of public employees
that interfere with individuals' right to enjoy their homes, and the like.
Id. at 71. The Court's opinion expressly or impliedly indicates several
reasons for this conclusion: (1) activities by state actors such as
repossessions or attachments that involve entry into the home, intrusion on
individuals' privacy, or interference with their liberty, have long been
recognized as implicating Fourth Amendment rights; (2) if the state action does
not involve privacy or liberty interests,"'reasonableness is still the ultimate
standard[. If a valid public interest justifies the intrusion contemplated,
then there is probable cause to issue a suitably restricted search warrant.]'"
Id. (quoting Camara, 387 U.S. at 539) (bracketed material added.
See Camara, 387 U.S. at 539). Thus, generally speaking, a state
officer will not violate the Fourth Amendment when his acts under color of law
are (a) pursuant to a warrant or other judicial or court order, see
id.; (b) in emergency situations, see Camara, 387 U.S. at
539; or (c) insignificant interferences associated with "garden variety"
commercial or landlord-tenant disputes, Soldal, 506 U.S. at 72, rather
than "some meaningful interference with an individual's possessory interests in
... property." Id. at 61 (quoting Jacobsen, 466 U.S. at 113). For
these reasons, it is evident that, if the Court in Soldal had been
required to reach the issue, it would have concluded that the seizure in which
the Soldals were "unceremoniously dispossessed" of their trailer home, without
a warrant, eviction judgment, or other judicial order, and in the absence of
any emergency, was a violation of the Soldals' Fourth Amendment rights.
Correspondingly, the Dallas URSB's seizure and destruction of the
private property owners' edifices were "meaningful interferences" with their
possessory interests in their buildings, not a "garden-variety" commercial or
landlord-tenant controversy. On the contrary, it was a seizure and destruction
of private property that was at least as invasive as the removal of a house
trailer from a trailer park or the seizure of a building "undertaken to collect
evidence, verify compliance with a housing regulation, effect an eviction by
the police, or on a whim, for no reason at all." Soldal, 506 U.S. at 69.
Consequently, the administrative seizures and demolitions by the URSB at issue
in the present case were significant intrusions upon the interests of private
property owners protected by the Fourth Amendment, and such seizures and
demolitions by the URSB, a government entity acting under color of state law,
not pursuant to a judicial warrant or court order, and not in an emergency
situation, are clear violations of the Fourth and Fourteenth Amendments.
See Camara, 387 U.S. at 534; Soldal, 506 U.S. at 66-67.
B. This Court Is Bound By Camara and
See, Not Frank v. Maryland
A Federal Court of Appeals is bound by the decisions of the Supreme
Court, even if the intermediate appellate judges think that a Supreme Court
decision is unsound or in error. See Thurston Motor Lines, Inc. v.
Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983); Hutto v. Davis, 454
U.S. 370, 375 (1982); Jaffree v. Wallace, 705 F.2d 1526, 1532-33
(11th Cir. 1983)(citing and quoting Stell v. Savannah-Chatam
County Bd. of Educ., 333 F.2d 55, 61 (5th Cir. 1964),
overruled in part on other grounds by United States v. Jefferson
County Bd. of Educ., 380 F.2d 385 (1967)); United States v. Twin City
Power Co. of Georgia, 253 F.2d 197, 205 (5th Cir. 1958);
Marcello v. Ahrens, 212 F.2d 830, 839 (5th Cir. 1954),
aff'd, 349 U.S. 302 (1955). Accordingly, this court must follow
Camara and See, which held that, because of the Fourth Amendment,
administrative entry or invasion of private residential or commercial property,
without consent or an emergency situation, may only be compelled within the
framework of a suitable judicial warrant procedure.
Nevertheless, the majority concludes that the district court and the
panel Fourth Amendment majority were wrong in holding that the URSB violated
the building owners' Fourth Amendment rights by seizing and destroying their
private property without consent or a warrant and in the absence of exigent
circumstances. This conclusion is based on a common theme, (i) that the Fourth
Amendment does not require a judicial warrant procedure to protect individuals
from meaningful interferences with their possessory interests in private
property by governmental entities; (ii) instead, the Amendment only protects
such individuals by the deterrent effects of reparations under § 1983 if
it is determined ex post facto that private property was seized or destroyed
"unreasonably" according to a standard of reasonableness or a balancing of
private and public interests. In effect, the majority seems to think that the
warrant requirements of Camara and See have been overruled and
Frank v. Maryland's warrantless standard of reasonableness has been
resurrected in their place.
Similarly, the majority's reasoning erroneously suggests that Justice
White's references in part III of Soldal to Camara and New
Jersey v. T.L.O., 469 U.S. 325 (1985), somehow signal approval of
warrantless seizures of private property, without consent or exigent
circumstances, by officers acting under color of law, so long as the officers
comply with a standard of reasonableness reflecting a careful balancing of
public and private interests. The passage containing those references, part of
Justice White's explanation that Soldal's interpretation of the Fourth
Amendment involves little or no risk of federalizing state law, states:
More significantly, "reasonableness is still the ultimate standard"
under the Fourth Amendment, Camara, supra, 387 U.S., at 539, 87
S.Ct., at 1736, which means that numerous seizures of this type will survive
constitutional scrutiny. As is true in other circumstances, the reasonableness
determination will reflect a "careful balancing of governmental and private
interests." T.L.O., supra, 469 U.S., at 341, 105 S.Ct., at 742.
Assuming, for example, that the officers were acting pursuant to a court order,
as in Specht v. Jensen, 832 F.2d 1516 (CA10 1987), or Fuentes v.
Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and as often
would be the case, a showing of unreasonableness on these facts would be a
laborious task indeed. Cf. Simms v. Slacum, 3 Cranch 300, 301, 2
L.Ed. 446 (1806). Hence, while there is no guarantee against the filing of
frivolous suits, had the ejection in this case properly awaited the state
court's judgment it is quite unlikely that the federal court would have been
bothered with a § 1983 action alleging a Fourth Amendment violation.
Soldal, 506 U.S. at 71.
A careful reading of the complete passages from which Justice White
quoted in the forgoing paragraph shows that he, as the author of Camara,
T.L.O., and Soldal, did not in any of those passages suggest
dispensing with the warrant procedure. To the contrary, he consistently
repeated the idea he expressed for the Court in Camara, "that a health
official need not show the same kind of proof to a magistrate to obtain a
warrant as one must who would search for the fruits or instrumentalities of
crime." Camara, 387 U.S. at 538. Later in Camara, in the passage
partially quoted in Soldal, Justice White stated: "The warrant procedure
is designed to guarantee that a decision to search private property is
justified by a reasonable governmental interest. But reasonableness is still
the ultimate standard. If a valid public interest justifies the intrusion
contemplated, then there is probable cause to issue a suitably restricted
search warrant." Id. at 539. The same day in See, he expressed
these ideas in a different way:
The agency's particular demand for access will of course be measured,
in terms of probable cause to issue a warrant, against a flexible standard of
reasonableness that takes into account the public need for effective
enforcement of the particular regulation involved. But the decision to enter
and inspect will not be the product of the unreviewed discretion of the
enforcement officer in the field.
See, 387 U.S. at 545 (footnote omitted).
His full sentence describing the flexible probable cause concept in
T.L.O., reads: "Where a careful balancing of governmental and private
interests suggests that the public interest is best served by a Fourth
Amendment standard of reasonableness that stops short of probable cause, we
have not hesitated to adopt such a standard." T.L.O., 469 U.S. at
Justice White also wrote for the Supreme Court in Marshall v.
Barlow's, Inc., 436 U.S. 307, 325 (1978), which held that, under the
warrant clause of the Fourth Amendment, the Occupational Safety and Health Act
(OSHA) is unconstitutional to the extent that it would permit inspections of
private businesses by OSHA inspectors without a warrant or its equivalent. He
began by reaffirming that "[t]he Warrant Clause of the Fourth Amendment
protects commercial buildings as well as private homes", id. at 311, and
that, accordingly, "warrantless searches are generally unreasonable, and that
this rule applies to commercial premises as well as homes." Id. at 312.
Justice White then discussed Camara and See, and then concluded
"that unless some recognized exception to the warrant requirement applies,
See v. City of Seattle would require a warrant to conduct the inspection
sought in this case." Id. at 313. Because of the absence of a recognized
exception to the warrant requirement - such as pervasively regulated businesses
in which entrepreneurs voluntarily choose to subject themselves to the full
arsenal of governmental regulation thereby precluding a reasonable expectation
of privacy (which is clearly the exception and not the rule) - without a
warrant a government inspector "stands in no better position than a member of
the public." Id. at 313-15.
Most important, in Marshall, Justice White expressly rejected
the Secretary of Labor's argument that "the enforcement scheme of the Act
requires warrantless searches, and that the restrictions on search discretion
contained in the Act and in its regulations already protect as much privacy as
a warrant would." Id. at 315. These are precisely the arguments advanced
by the City of Dallas and accepted by the majority in this case. In fact, as
the following passage aptly demonstrates, these arguments take out of context
Soldal's quotation from Camara ("reasonableness is still the
ultimate standard") and attribute to it a meaning explicitly rejected by
The Secretary thereby asserts the actual reasonableness of OSHA
searches, whatever the general rule against warrantless searches might be.
Because "reasonableness is still the ultimate standard," Camara v. Municipal
Court, 387 U.S., at 539, 87 S.Ct., at 1736, the Secretary suggests that the
Court decide whether a warrant is needed by arriving at a sensible balance
between the administrative necessities of OSHA inspections and the incremental
protection of privacy of business owners a warrant would afford. He suggests
that only a decision exempting OSHA inspections from the warrant clause would
give "full recognition to the competing public and private interests here at
We are unconvinced, however, that requiring warrants to inspect will
impose serious burdens on the inspection system or the courts, will prevent
inspections necessary to enforce the statute, or will make them less
Id. at 315-16.
Moreover, Justice White makes crystal clear that "reasonableness"
afforded by the statutory scheme may substitute for probable cause to issue the
warrant, but it may not substitute for the warrant itself:
Whether the Secretary proceeds to secure a warrant or other process,
with or without prior notice, his entitlement to inspect will not depend on his
demonstrating probable cause to believe that conditions in violation of OSHA
exist on the premises. Probable cause in the criminal law sense is not
required. For purposes of an administrative search such as this, probable cause
justifying the issuance of a warrant may be based not only on specific evidence
of an existing violation but also on a showing that "reasonable legislative or
administrative standards for conducting an ... inspection are satisfied with
respect to a particular [establishment]." Camara v. Municipal Court, 387
U.S., at 538, 87 S.Ct., at 1736.... We doubt that the consumption of
enforcement energies in the obtaining of such warrants will exceed manageable
Id. at 320-21 (footnote omitted)(bracketed text in original).
Finally, Justice White rejected the notion "that the incremental
protections afforded the employer's privacy by a warrant are so marginal that
they fail to justify the administrative burdens that may be entailed."
Id. at 322.
The authority to make warrantless searches devolves almost unbridled
discretion upon executive and administrative officers, particularly those in
the field, as to when to search and whom to search. A warrant, by contrast,
would provide assurances from a neutral officer that the inspection is
reasonable under the Constitution, is authorized by statute, and is pursuant to
an administrative plan containing specific neutral criteria.
Id. at 323(footnote omitted).
Against this background, it is clear that Justice White in the
Soldal paragraph quoting parts of the Camara and T.L.O.
passages did not impliedly or silently overrule the principal holding of
Camara that significant administrative intrusions require a warrant
procedure, in the absence of consent or an emergency. Read within the context of the passages from
Camara, See, Marshall, and T.L.O., describing the
flexible standard of reasonableness, it is clear that in that Soldal
paragraph Justice White merely expressed the opinion that it will be difficult
to show a Fourth Amendment violation when an officer seizes property pursuant
to a court order, if the order was measured and issued according to a
reasonable standard based on a careful balancing of public and private
interests. This meaning is borne out by the citation in the Soldal
paragraph calling upon the reader to reference Simms v. Slacum, 3 Cranch
300, 301, 7 U.S. 300, 306-07 (1806), in which Chief Justice Marshall stated:
The judgments of a court of competent jurisdiction, although obtained
by fraud, have never been considered as absolutely void; and, therefore, all
acts performed under them are valid so far as respects third persons. A sheriff
who levies an execution under a judgment fraudulently obtained, is not a
trespasser, nor can the person who purchases at a sale under such an execution,
be compelled to relinquish the property he has purchased.
7 U.S. at 306-07.
In short, Camara, See, Marshall, T.L.O.,
and Soldal all indicate that under certain circumstances a flexible
standard of reasonableness can substitute for the kind of probable cause that
must be shown by law enforcement officers to obtain a warrant to search for
criminal evidence; they do not support the notion that reasonableness can
substitute for the judicial warrant that is required before an administrative
search or seizure of private property without consent or an emergency
This court cannot legitimately overrule or disregard Camara and
See, which require a warrant before a municipality can effect a search
or seizure of private residential or commercial property without consent or
emergency circumstances under health, safety, and building regulations, even if
a flexible probable cause or reasonableness standard has been met.
The language upon which the majority relies in arguing that
Camara and See are inapplicable is taken out of context from the
"special, beyond normal, law enforcement needs" cases that are inapposite here.
The cases the majority cites — Vernonia Sch. Dist. v. Acton
(suspicionless random drug testing of high school athletes in a particular
exigent factual situation); Griffin v. Wisconsin (reasonable grounds
search without a warrant of probationer within legal custody under state law
pursuant to a state regulation authorizing such warrantless searches); New
Jersey v. T.L.O. (search of student's purse on suspicion of violation of
school rule against smoking)--are those in which the Court has "permitted
exceptions when 'special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.'" Vernonia
Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995) (citing Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987)).
The Court in those cases clearly limited the "special needs" exception
to the warrant requirement to special situations in criminal law enforcement:
"A State's operation of a probation system, like its operation of a school,
government office or prison, or its supervision of a regulated industry,
likewise presents 'special needs' beyond normal law enforcement that may
justify departures from the usual warrant and probable cause requirements."
Griffin, 483 U.S. at 873-74; see also Chandler v. Miller,
520 U.S. 305 (1997) (Georgia's requirement that candidates for state office
pass drug test did not fit within closely guarded special needs category of
constitutionally permissible suspicionless searches ); United Teachers of
New Orleans v. Orleans Parish Sch. Bd., 142 F.3d 853 (5th Cir.
1998) (school board's rules violated Fourth Amendment inasmuch as no special
needs exception to requirement of individualized suspicion of wrongdoing
The present case is not a criminal law enforcement case, much less a
"special needs, beyond the normal need for law enforcement" case, and it is
certainly not a case in which the warrant requirement is impracticable. The
majority's rejection of the warrant requirement in this case makes it difficult
to say that it exists at all in the Fifth Circuit, except for few persons whose
criminal convictions are reversed because the violation of their Fourth
Amendment rights was so flagrant as to amount to harmful, reversible error.
C. This Circuit and Others
In concluding that the URSB violated the owners' Fourth Amendment
rights, the Freeman panel Fourth Amendment majority decision followed
the controlling precedent of this Circuit, and this decision does not conflict
with what is the controlling precedents of other circuits.
In United States v. Paige, 136 F.3d 1012, 1021 (5th
Cir. 1998), this court recognized that "[t]he Supreme Court recently made clear
that the protection afforded by the Fourth Amendment extends to an individual's
possessory interests in property, even if his expectation of privacy in that
property has been completely extinguished." (citing Soldal, 506 U.S. at
62-63). This court in Paige also observed that "[g]enerally, 'seizures
conducted outside the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth Amendment-subject only to
a few specifically established and well delineated exceptions.'" Id. at
1022 (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). The
Freeman Fourth Amendment majority applied Paige's teachings from
the Supreme Court cases of United States v. Jacobsen, 466 U.S. 109, and
United States v. Place, 462 U.S. 696, to conclude that the URSB seizures
do not fall within an exception to the warrant requirement fashioned in those
cases because the seizures were not lawful and temporary in their inception,
the seizures did not have a de minimis impact on the owners' property
interests, and it could not be said that the safeguards of a warrant would have
only minimally advanced Fourth Amendment interests. Freeman v. City of
Dallas, 186 F.3d 601, 606 (5th Cir. 1999).
The Freeman Fourth Amendment majority is not inconsistent with
the other Circuits' leading cases although it is at odds with an Eighth Circuit
case. In Flatford v. City of Monroe, 17 F.3d 162, 170 (6th
Cir. 1994), the Sixth Circuit held that under the Fourth Amendment the
plaintiffs "were entitled to pre-eviction judicial oversight in the absence of
emergency circumstances." That court also found that the eviction had been
predicated upon exigent circumstances. Id. at 170-71. In Hroch v.
City of Omaha, 4 F.3d 693, 697 (8th Cir. 1993), the Eighth
Circuit held that the defendants' actions in implementing the City's
condemnation order did not constitute an unreasonable seizure in violation of
Hroch's Fourth Amendment rights. The Hroch court pointed out that a
state court had denied an injunction so that there was judicial oversight of
the condemnation process which provided "a constitutionally adequate substitute
for a warrant." Id. at 696-97 (citing and quoting Donovan v.
Dewey, 452 U.S. 594, 603 (1981)). In Conner v. City of Santa Ana,
897 F.2d 1487, 1492 (9th Cir. 1990), the Ninth Circuit held that a
search and seizure of the Conners' property to abate a known nuisance without
any judicial authorization was impermissible under the Fourth Amendment.
Although Conner was decided before Soldal, it is consistent with
that decision because it relied on Camara, and Soldal did not
change Camara; rather, Soldal only reaffirmed what had been
established before, that the Fourth Amendment protects property as well as
privacy and may protect property interests even when neither privacy nor
liberty is at stake. Soldal, 506 U.S. at 62-71. In Samuels v.
Meriwether, 94 F.3d 1163, 1167-68 (8th Cir. 1996), however, the
Eight Circuit misread Soldal as overruling Camara sub silentio
and replacing the warrant process required by Camara with a
reasonableness balancing test. Soldal does not express or imply such an
intention, however, and it is absurd to attribute to Justice White, the author
of both opinions, an intention to overrule Camara without saying so,
particularly since he cites and quotes Camara prominently with approval
All of these circuit decisions, except Samuels v. Meriwether,
are consistent with a correct reading of Camara, See, and
Soldal which plainly indicate that, in the context of administrative
searches and seizures, compliance with reasonable legislative and
administrative standards may serve as probable cause for a warrant, but not as
a substitute for the warrant procedure itself; see Camara, 387
U.S. at 538, 545-46; Soldal, 506 U.S. at 71; although nothing forecloses
prompt inspections, even without a warrant, that the law has traditionally
upheld in emergency situations. See Camara, 387 U.S. at 539.
D. Other Arguments
A number of rationales are advanced by the majority that have a false
appearance of genuineness, but are really only variations on their main theme
(1) That only self-imposed reasonableness is required of a governmental
entity in seizing and razing buildings for urban renewal, and the municipal
procedures followed by the URSB assured sufficient reasonableness in this case.
This argument is premised upon two faulty propositions: (i) that Fourteenth
Amendment due process of law and Fourth Amendment reasonableness analyses are
fungible; and (ii) that Soldal sub silentio overruled Camara and
its warrant requirement for administrative searches and seizures, thereby
resurrecting Frank v. Maryland and its warrantless reasonableness
standard. With respect to (i), in Soldal, the Supreme Court expressly
rejected that proposition, stating that "[c]ertain wrongs affect more than a
single right and, accordingly, can implicate more than one of the
Constitution's commands. Where such multiple violations are alleged . . . we
examine each constitutional provision in turn." 506 U.S. at 70; see
also United States v. James Daniel Good Real Prop., 510 U.S. 43,
49-50 (1993) (in considering claims that the same government conduct violated
both the Fourth Amendment protections against unreasonable seizure and the
Fifth Amendment protections of due process of law, the Court stated that it has
repeatedly rejected the view that the applicability of one constitutional
amendment preempts the guarantees of another). Flatford, 17 F.3d at
170-71, does not support the argument either, because it, in effect, merely
concludes that both the Fourth Amendment and Due Process standards are relaxed
where the conduct complained of is justified by exigent circumstances. With
respect to (ii), as demonstrated earlier, Soldal, a unanimous opinion by
Justice White, building on and citing with approval his own opinion for the
court in Camara, cannot reasonably be read to implicitly or silently
overrule Camara's core holding that, in the absence of consent or
exigent circumstances, administrative searches or seizures of private houses or
buildings without a judicial warrant violate the Fourth Amendment, and that
Frank v. Maryland is expressly overruled.
(2) That the URSB is the functional equivalent of a neutral and
detached judicial officer. The fallacy of this contention is self-evident. The
URSB is an agency of the City of Dallas charged with the remediation -
including the demolition--of structures deemed by it to constitute urban
nuisances. The URSB's job is to eliminate unsightly conditions adversely
affecting the economic value of neighboring property and the City's tax base.
The URSB cannot possibly serve effectively in this executive capacity and act
as a neutral and detached magistrate to safeguard the rights of the owners
whose buildings it determines should be razed. "When the right of privacy must
reasonably yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or government enforcement agent."
Camara, 387 U.S. at 529 (citing and quoting Johnson v. United
States, 333 U.S. 10, 14 (1948)). This principle applies with equal force to
the seizure and destruction of real property by government enforcement agencies
such as the URSB, because the decision to seize and destroy private property
under these circumstances, like the decision to enter and inspect, "[can]not be
the product of unreviewed discretion of the enforcement officer in the field."
Id. at 545. Rather, the "warrant machinery contemplated by the Fourth
Amendment" so prominently emphasized by Justice White is necessarily
administered by a "neutral magistrate." See Camara, 387 U.S. at
532; Marshall, 436 U.S. at 323.
(3) That the warrant process would overburden the URSB. This argument
was rejected firmly by the Supreme Court in Camara, see 387 U.S.
at 532, and again in Marshall, 436 U.S. at 321. Moreover, the step of
securing a warrant issued by a neutral and detached judicial officer is not
difficult or time consuming. The property owner benefits greatly from the
safeguarding of his protected interests that can only be provided by a neutral
judicial officer's pre-execution approval of the seizure and demolition. In the
present case, as is typical, almost a year passed between the notices of
noncompliance and the ultimate demolition orders. Had the URSB at the
appropriate time during this lengthy period properly obtained a warrant for the
seizure and demolition of the owners' buildings, it is almost certain that the
federal court would not have been bothered with this § 1983 action
alleging a Fourth Amendment violation.
(4) That Texas currently has no procedural mechanism for judicial
oversight of public nuisance abatement. However, it appears that such oversight
is provided for by Texas legislated law. See Tex. Gov't. Code Ann.
§§ 24.08 (district court may hear and determine any cause cognizable
by courts of law or equity), and 24.011 (district court judge may grant all
writs necessary to enforce the court's jurisdiction). Moreover, judicial
oversight of public nuisance abatement in the context of this case is required
by Texas jurisprudence. See City of Houston v. Lurie, 224 S.W.2d
871, 874 (Tex. 1949) ("It has been repeatedly held that the question whether
property is a public nuisance and may be condemned as such is a justiciable
question to be determined by a court."); Hart v. City of Dallas, 565
S.W.2d 373, 379 (Tex.Civ.App.-Tyler 1978, no writ) (whether the URSB or the
city council made the determination that the house was a hazard to the health,
safety, and welfare of the citizens, "the City would have been without
authority to demolish the house in the absence of a judicial determination that
the house was a nuisance in fact."). Moreover, even if the Texas courts lacked
express statutory or jurisprudential authority to issue warrants for the search
or seizure of property, undoubtedly they are endowed with such authority by the
Fourth Amendment, the State Constitution, and their inherent judicial
II. DUE PROCESS
The plaintiffs cross-appealed the district court's ruling against their
Fifth Amendment claim. I dissent from the en banc majority's decision,
affirming summary judgment in favor of the City of Dallas on the due process
claim for the same reasons that I dissented from the panel's decision.
See Freeman, 186 F.3d at 612-14 (Dennis, dissenting).
A governmental seizure of a person's property implicates two explicit
textual sources of constitutional protection, the Fourth and Fifth Amendments.
James Daniel Good Real Prop., 510 U.S. at 49-50; Soldal v. Cook
County, 506 U.S. at 61, 70-71. Although the decision in James Daniel
Good Real Property was based upon the procedural protections of the Fifth
Amendment's Due Process Clause, the similarly worded procedural protections of
the Fourteenth Amendment's Due Process Clause apply with equal force to states
The City does not, and could not, dispute that the seizure and
destruction of the plaintiffs' real property deprived them of property
interests protected by the Fifth and Fourteenth Amendments' Due Process
Clauses. The City argues, however, that a hearing before a panel of the City's
own Urban Rehabilitation Standards Board afforded the plaintiffs all the
process they were due before their property was seized and destroyed. I believe
that in the absence of an extraordinary situation, which did not exist in the
present case, the Due Process Clauses require that, before a person is deprived
of his real property by the government, he must be given notice and an
opportunity for a meaningful hearing before a neutral magistrate, and that
there must be a judicial determination that the seizure is justified.
Where the government seizes property not to preserve evidence of
criminal wrongdoing but to assert ownership and control over the property, its
action must also comply with the procedural protections of the Due Process
Clauses of the Fifth and Fourteenth Amendments. James Daniel Good Real
Prop., 510 U.S. at 50. The Supreme Court's precedents establish the general
rule that Due Process requires that, absent an extraordinary situation, a party
cannot invoke the power of the state to seize a person's property without a
prior judicial determination that the seizure is justified. United States v.
$8,850, 461 U.S. 555, 562 n.12 (1983) (citing Boddie v. Connecticut,
401 U.S. 371, 378-379 (1971)); see also North Georgia Finishing, Inc.
v. Di-Chem, Inc., 419 U.S. 601 (1975); Fuentes v. Shevin, 407 U.S.
67 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337 (1974);
Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974). Due Process also
requires that individuals must receive notice and an opportunity to be heard
before the government deprives them of property. James Daniel Good Real
Prop., 510 U.S. at 48 (citing $8,850, 461 U.S. at 562 n. 12;
Fuentes, 407 U.S. at 82; Sniadach, 395 U.S. at 342 (Harlan, J.,
concurring); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950)).
In James Daniel Good Real Property, the Supreme Court held that,
in the absence of exigent circumstances, the Due Process Clause requires the
government to afford notice and a meaningful opportunity to be heard in an
adversary hearing, to ensure the requisite neutrality that must inform
governmental decisionmaking, before seizing real property subject to civil
forfeiture. 510 U.S. at 48, 53-56. The protection of an adversary hearing
before a neutral magistrate is of particular importance where the government
has a direct pecuniary interest in the outcome of the proceeding. Id. at
55-56. In James Daniel Good Real Property, the Supreme Court emphasized
that "[t]he constitutional limitations we enforce in this case apply to real
property in general, not simply to residences." Id. at 61.
Accordingly, the Due Process requirements of notice, a meaningful
adversary hearing before a neutral magistrate, and a judicial determination of
justification must be afforded to a person before his real property is seized
and destroyed in order to abate or rehabilitate an "urban nuisance." In a case
such as the present one, there is need for equally rigorous adherence to the
principles of Due Process as in civil forfeitures of real property. The City of
Dallas has pecuniary interests in the outcome of such proceedings, e.g.,
justification for federal and state urban renewal grants; enhancement of the
municipal tax base by promoting the replacement of old buildings with new ones.
The need for safeguards against arbitrary, capricious, or unreasonable seizures
based on subjective standards may be even greater in "urban nuisance" or "urban
rehabilitation" cases. Moreover, a post-seizure hearing cannot provide any
remedy in such cases because the destroyed property cannot be restored and the
best evidence of whether the seizure was justified will have been demolished
also. It is not necessary to accomplish the City's legitimate goals of urban
rehabilitation that an owner whose real property the City proposes to destroy
be deprived of an opportunity for a meaningful pre-seizure adversary hearing
before a neutral and impartial judge or magistrate. Requiring the City to
postpone seizure and destruction until after such a hearing and judicial
determination that the seizure is justified creates no significant
administrative burden. And any harm that results from delay is minimal in
comparison to the injury occasioned by the erroneous seizure and destruction of
real property. Id. at 59.
In summary, Camara and See require a judicial warrant
procedure for the administrative search or seizure of private property, except
in consensual or emergency situations. Soldal does not overrule or
modify Camara or See; it simply makes clear that the Fourth
Amendment protects property as well as privacy and liberty. The Freeman
Fourth Amendment majority correctly applied Camara, See, and
Soldal, and the other circuits' decisions, except for one, are not in
conflict with that interpretation. Thus, I would affirm the judgment against
the City of Dallas.
Because the process used by the City of Dallas failed to meet the
requirements of due process as dictated by the Fifth Amendment, I would also
reverse the judgment for the City of Dallas and would grant summary judgment in
favor of the plaintiffs on this claim.
1. Chief Judge King did not participate in this
2. Freeman did not get notice because he had no
interest in either property at this time. Brown received a notice on 2621
Meyers Street, the property of which she was the owner of record. Brown did not
receive notice on the 2611 Meyers Street property because, although she had
purchased the property by this date, she had not yet filed a warranty deed.
Instead, the notice on 2611 Meyers Street was sent to the owner of record,
3. The Code defines an "urban nuisance" as the
[A] premises or structure that:
(A) is reasonably dangerous to the physical health or safety of an
occupant or other person; or
(B) because of violations of [the Code] ..., its state of disrepair is
such that it could reasonably cause injury, damage, harm, or inconvenience to a
considerable portion of the community in the use and enjoyment of property,
materially interfering with the proper use or comfort and enjoyment of
surrounding property, taking into consideration the nature and use of the
properties in the area and the character of the community in which they are
situated, which condition would be substantially offensive and annoying to
persons of ordinary sensibilities, tastes, and habits living in the
Dallas, Tex., Code ch. 27, art. I, § 27-3(23).
The Code goes on to prescribe with specificity the minimum structural,
health and utility standards whose breach may result in the declaration of an
urban nuisance. Dallas, Tex., Code ch. 27, Art. III, § 27-11.
4. The URSB also sent notice of the order to demolish
the building at 2611 Meyers Street to Freeman and notice of the order to
demolish the building at 2621 Meyers Street to Freeman and Brown. The notices
stated, in part:
If you do not demolish the structure(s) within the time above
indicated [30 days], the city will arrange to have this work done and the
expense of that demolition performed under contract with the city will
constitute a lien on the real property on which the structure(s) were located,
and that lien will run with the land.
These notices were sent to the same addresses at which Brown and Freeman
had received mail about earlier hearings, but they were returned as
5. This court reinstates the panel opinion concerning
the Due Process claims.
6. "Seizure" of property occurs when there is some
meaningful interference with an individual's possessory interests in that
property, United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652,
1656 (1984), and a "seizure" may occur in both civil and criminal contexts.
There can be no question that the city's actions against the Freeman's
apartment buildings constituted a "seizure". See Soldal v. Cook
County, Ill., 506 U.S. 56, 62 & n.7, 113 S. Ct. 538, 544 & n.7
(1992), (holding that the forcible removal of a mobile home, leaving the owners
dispossessed, constituted a "seizure" under the Fourth Amendment).
7. The federal government lacked authority over
nuisances at and after the time of the framing, and the Fourth Amendment was
not first applied to the states until 1961. Mapp v. Ohio, 367 U.S. 643,
646-47, 81 S. Ct. 1684, 1686-87 (1961).
8. See Yates v. Milwaukee, 77 U.S. 497,
505, 19 L.Ed. 984 (1870)("It is a doctrine not to be tolerated in this country,
that a municipal corporation, without any general laws either of the city or of
the State, within which a given structure can be shown to be a nuisance, can,
by its mere declaration that it is one, subject it to removal by any person
supposed to be aggrieved, or even by the city itself."); Hennessy v. St.
Paul, 37 F. 565, 566 (C.C. Minn. 1889)("[U]nless a nuisance, as defined by
the common law or by statute, exists, the act of the common council cannot make
it one by a mere resolution. Such a doctrine might place the property of the
people, no matter what in fact might be its real condition and character, at
the disposal of the common council, without compensation."); Underwood v.
Green, 42 N.Y. 140 (N.Y. 1870); J.E. Macy, Annotation, Constitutional
Rights of Owner as Against Destruction of Building by Public Authorities,
14 A.L.R.2d 73, *8 (1950) ("[N]either at common law nor under such express
power can it, by its mere declaration that specified property is a nuisance,
make it one when in fact it is not.").
9. See, e.g., Lawton v. Steele,152 U.S.
133, 141, 14 S. Ct. 499, 502 (1894) ("If the property were of great value ...
it would be putting a dangerous power in the hands of a custom officer to
permit him to sell or destroy it as a public nuisance, and the owner would have
good reason to complain of such act as depriving him of his property without
due process of law."); Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 301
(1887)("The exercise of the police power by the destruction of property which
is itself a public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from taking property
for public use, or from depriving a person of his property without due process
of law."); Our House v. The State, 4 Greene 172, 1853 WL 221, *2 (Iowa
1853)(holding that a law declaring "dram shops" to be public nuisances,
authorizing their abatement, and establishing certain procedures for notice and
a hearing "does not deprive a person of his property without due process of
law"). The notion of substantive due process survives in challenges to
municipal zoning and nuisance decisions, as this court has recently held.
John Corp. v. City of Houston, 214 F.3d 573, 581-86 (5th Cir. 2000)
(allegation that city deprived landowners of property by allowing demolition
under unconstitutionally vague ordinance states cognizable substantive due
10. See also City of Indianapolis v.
Edmond, 121 S. Ct. 447, 4451 (2000) ("The Fourth Amendment requires that
searches and seizures be reasonable."); Ohio v. Robinette, 519 U.S. 33,
39, 117 S. Ct. 417, 421 (1996)("the touchstone of the Fourth Amendment is
reasonableness") (internal quotations omitted); Whren v. United States,
517 U.S. 806, 817, 116 S. Ct. 1769, 1776 (1996)("It is of course true that in
principle every Fourth Amendment case, since it turns upon a reasonableness
determination, involves a balancing of all relevant factors.")(quotations
omitted); Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87
S. Ct. 1727, 18 L.Ed. 930 (1967)("[R]easonableness is still the ultimate
standard [under the Fourth Amendment]."); Carroll v. United States, 267
U.S. 132, 147, 45 S. Ct. 280, 283, 69 L.Ed. 543 (1925)("The Fourth Amendment
does not denounce all searches and seizures, but only such as are
11. The Court goes on in the same paragraph of
Vernonia to state that:
A search unsupported by probable cause can be constitutional, we have
said, 'when special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable'.
515 U.S. at 653, 115 S. Ct. at 2391.
By its terms, and by the Court's further explanation, the "special
needs" caveat tends to expand rather than narrow exceptions to the warrant
requirement. Further, "special needs" are relevant to relaxation of the
probable-cause basis for a government search for evidence. Here, however, there
is probable cause for the City's seizure.
12. City of Indianapolis v. Edmond, ____ U.S.
____, 121 S. Ct. 447, 451 (2000).
13. See supra note 2.
14. The Texas Local Government Code describes the
agencies like the URSB as exercising "Quasi Judicial Enforcement of Health and
Safety ordinances." Subchapter C, Texas Local Gov't. Code, Tit. 2, Subtitle D,
Ch. 54 (§§ 54.032-54.042).
15. While the Supreme Court has not specifically
defined the scope of the police power, it has reaffirmed the "classic
statement" of the rule:
'To justify the State in ... interposing its authority in behalf of
the public, it must appear, first, that the interests of the public ... require
such interference; and, second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals.'
Even this rule is not applied with strict precision, for this Court has often
said that 'debatable questions as to reasonableness are not for the courts but
for the legislature....'
Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95, 82 S. Ct.
987, 990 (1962)(citations omitted).
16. See generally, Tex. Loc. Govt.
Code, Tit. 2, Subtitle D, ch. 54.
17. Indeed, the grounds for state court judicial
review are nearly identical to those standards employed historically by courts
in reviewing nuisance decisions, i.e. the decisions on which plaintiffs
seek to build the edifice of their warrant requirement.
18. In reaching this conclusion, we do not ignore
Soldal's mandate that a particular government action may implicate more
than one constitutional provision. Soldal, 506 U.S. at 70, 113 S. Ct. at
538. A particular nuisance determination might be reviewable under the Takings
Clause or Substantive Due Process as well as the Fourth Amendment or Procedural
Due Process standards. John Corp. v. City of Houston, 214 F.3d 573
(5th Cir. 2000). But the Fourth Amendment reasonableness of a
seizure and demolition of nuisance property will ordinarily be established when
the substantive and procedural safeguards inherent in state and municipal
property standards ordinances have been fulfilled. See Samuels,
94 F.3d at 1168.
19. Cf. Soldal, 506 U.S. at 71, 113 S.
Ct. at 549 ("Assuming ... that the [evicting] officers were acting pursuant to
a court order ... a showing of unreasonableness would be a laborious task
indeed."). Likewise, we believe a showing of unreasonableness in the face of
the City's adherence to its ordinance is a "laborious task indeed."
20. In See v. City of Seattle, 387 U.S. 541
(1967), decided the same day as Camara, the Court held that the Fourth
Amendment forbids warrantless inspections of commercial structures as well as
private residences. "[T]he basic component of a reasonable search under the
Fourth Amendment-that it not be enforced without a suitable warrant
procedure-is applicable in this context, as in others, to business as well
as to residential premises." Id. at 546.
21. See also United States v.
Jacobsen, 466 U.S. at 125 n.28 (relied on prominently in Soldal, in
which the Court issued the following caveat: "Of course, where more substantial
invasions [than taking a trace of powder for a chemical test] of
constitutionally protected interests are involved, a warrantless search or
seizure is unreasonable in the absence of exigent circumstances." (citing
Steagald v. United States, 451 U.S. 204 (1981); Payton v. New
York, 445 U.S. 573 (1980); Dunaway v. New York, 442 U.S. 200 (1979);
United States v. Chadwick, 433 U.S. 1 (1977))).
22. On remand, in light of the Supreme Court's
decision, the district court concluded that the defendants were not entitled to
qualified immunity. "Because we determine that plaintiffs' allegations support
an inference that the defendants were aware of circumstances making their
actions unreasonable, and hence, illegal, we refuse to dismiss the action."
Soldal v. County of Cook, No. 88C7654, 1993 WL 199050, *5 n.1 (N.D. Ill.
June 10, 1993).
23. In summary, we hold that administrative searches
of the kind at issue here are significant intrusions upon the interests
protected by the Fourth Amendment, that such searches when authorized and
conducted without a warrant procedure lack the traditional safeguards which the
Fourth Amendment guarantees to the individual, and that the reasons put forth
in Frank v. Maryland and in other cases for upholding these warrantless
searches are insufficient to justify so substantial a weakening of the Fourth
Camara, 387 U.S. at 534.
24. The Supreme Court has held that the Fourteenth
Amendment's Due Process Clause "legitimately operates to extend to the citizens
and residents of the States the same protection against arbitrary state
legislation, affecting life, liberty and property, as is offered by the Fifth
Amendment against similar legislation by Congress." Hibben v. Smith, 191
U.S. 310, 325 (1903). Of the guarantees of the Fifth Amendment, only the grand
jury clause has been held not to be applicable to the states. 2 Ronald D.
Rotunda & John E. Nowak, Treatise on Constitutional Law § 14.2,
at 347-48 (2d ed. 1992) (citing Hurtado v. California, 110 U.S. 516
(1884)). The Fifth Amendment prohibitions of compulsory self-incrimination and
double jeopardy were made applicable to the states in Malloy v. Hogan,
378 U.S. 1 (1964), and Benton v. Maryland, 395 U.S. 784 (1969),
respectively. In addition, although the Fifth Amendment's just compensation
provision has not "technically" been incorporated against the states, "the
Court has held that the fourteenth amendment due process guarantee provides the
same safeguard against a state's taking of property without just compensation."
2 Rotunda & Nowak, supra, § 14.2, at 350 (citing Chicago B.
& Q. R. Co. v. Chicago, 166 U.S. 226 (1897)). See also
Hurtado v. California, 110 U.S. 516, 541 (1884) (Harlan, J., dissenting)
("[T]he 5th [amendment] provided that 'no person shall be deprived
of life, liberty or property, without due process of law.' This language is
similar to that of the clause of the 14th amendment now under
examination. That similarity was not accidental, but evinces a purpose to
impose upon the States the same restrictions, in respect of proceedings
involving life, liberty and property, which had been imposed upon the General