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City Razes Building Without Telling Owner. Meh, No Big Deal.

By Robyn Hagan Cain on April 25, 2013 | Last updated on March 21, 2019

In 2008, the City of San Antonio demolished RBIII’s building. That building was arguably dilapidated, but the City didn’t actually notify RBIII before razing the structure.

In the legal world, you’ll recall that we characterize such behavior as “not cool.”

RBIII sued San Antonio, asserting a variety of state and federal claims, but the district court granted summary judgment for the city on all but two claims. (If you guessed that the surviving claims were a Fourteenth Amendment due process claim and a Fourth Amendment unreasonable search and seizure claim, give yourself a gold star.) The remaining claims went to a jury, and the jury returned a verdict in favor of RBIII.

San Antonio, unsatisfied with tearing down RBIII’s building and mostly-prevailing at summary judgment, appealed.

This week, the Fifth Circuit Court of Appeals vacated the jury verdict and remanded the case.

Perhaps you're scratching your head and wondering how San Antonio won this appeal. After all, the city destroyed this building without giving the owner a heads up. But predeprivation notice isn't always required.

The Fourteenth Amendment Due Process Clause generally requires the state provide an opportunity to be heard before it takes property, but postdeprivation process can satisfy procedural due process claims if the state is acting to "abate an emergent threat to public safety."

Here, the city complied with a local ordinance, which provided that it could demolish dangerous structures without prior notice to the owner when "due to one or more structural conditions threatening the structural integrity of a building there is a clear and imminent danger to the life, safety, or property of any person."

Before the jury deliberated, the trial court instructed the jurors regarding the procedural due process need for notice before or after a taking, but it didn't instruct the jurors to give deference to the city's decision to invoke its emergency powers under the ordinance.

That posed a problem.

The Fifth Circuit Court of Appeals concluded that the jury instructions "improperly cast the central factual dispute as whether or not the structure posed an immediate danger to the public, when the issue should have been whether the city acted arbitrarily or abused its discretion in determining that the structure presented an immediate danger."

Because the instructions misled the jury as to the central factual question in the case, the Fifth Circuit vacated and remanded the verdict.

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