Background
In June 2020, following the murder of George Floyd, protestors occupied a sixteen-block area in Seattle’s Capitol Hill neighborhood known as the Capitol Hill Occupied Protest. The Seattle Police Department abandoned its nearby East Precinct and reduced policing in the area. Two businesses located across from Cal Anderson Park sued the City, alleging that the decision not to police the area caused total economic devastation through vandalism, trespass, and lost revenue.
The court’s reasoning
The panel held that the state-created danger doctrine permits recovery only for harm to bodily integrity and autonomy, not for economic loss. The court found that the cessation of police services did not result in a per se or right-of-access taking because there was no affirmative government invasion of property and no protected interest in temporary access under state law. However, the court reversed the dismissal of nuisance claims, ruling that the Washington Supreme Court would likely apply American Pipe equitable tolling principles to the statute of limitations for these claims.
The state-created danger doctrine permits recovery only for state-created harm to bodily integrity and autonomy, and not for lost profits or other forms of economic loss.
What it means going forward
Businesses may pursue nuisance claims under state tort law if they can successfully argue for equitable tolling, but they cannot recover for economic harm under the state-created danger doctrine or the Takings Clause.
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