No due process violation where village demolishes damaged building

I may not know much, but I do know this: due process claims in the Second Circuit are very hard to win. Especially when they involve emergencies resulting from damaged buildings which require municipal officials to take them down quickly.

The case is WWBITV, Inc. v. Village of Rouses Point, decided on December 9. Plaintiffs' building was an old hotel that caught fire in June 2006. After the fire, the building was in bad shape. As the Second Circuit (Lynch, Miner and Katzmann), puts it, "The roof and the top floors had been completely destroyed. Debris hung off the hotel’s facade, and officials were concerned that it would fall into the street. The instability of the building, as well as its proximity to the street, necessitated the closing of State Road 11." The next morning, a team of contractors tore it down at the direction of the village board, which held an emergency meeting. While the board did publicize the meeting, it did not tell the Clarkes, who owned the building.

Plaintiffs claimed that by tearing down the Hotel without providing any form of prior hearing, the Village deprived them of their property without due process of law in violation of the Fourteenth Amendment. True, due process requires the government to provide notice and an opportunity to be heard before it deprives you of your property (or liberty). But not in emergency situations. When the building is unstable, there is no time for pre-deprivation process. The building can collapse while the due process procedures are unfolding. That's been the law in the Second Circuit since 1999, when the Court of Appeals sustained summary judgment in Catanzaro v. Weiden, 188 F.3d 56 (2d Cir. 1999), which involved similar facts except that the building was damaged when someone drove a car into it. (I represented the plaintiff in Catanzaro, where the Court of Appeals first vacated summary judgment before changing its mind on a motion for re-hearing).

The rule in Catanzaro is that "where there is competent evidence allowing [an] official to reasonably believe that an emergency does in fact exist ... the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion.” Tough standard for due process plaintiffs to get around. And the Clarkes don't get around it in this case. While the Clarkes suggest they could have convinced village officials to employ less drastic methods to protect public safety, that is not enough to win the case. Under the "arbitrary and capricious" standard, the Court will defer to municipal judgment where every minute counts. The Second Circuit reasons, "As Catanzaro makes clear, such hindsight analysis of a municipality’s means of dealing with an emergency would encourage delay and risk increasing the public’s exposure to dangerous conditions."