In Hotop v. City of San Jose, published December 7, 2020, the 9th Circuit Court of Appeals affirmed a district court decision dismissing a 42 U.S.C. section 1983 lawsuit after the court offered plaintiffs a chance to amend their complaint and the plaintiffs chose to stand on their unamended pleading. The defendant city passed an ordinance requiring landlords to provide specified information about rent stabilized units to the city, and condition landlords' ability to increase rents on providing that information. The landlords contended that the information is not in the public domain, and thus requiring the landlords to disclose the information is a search under the Fourth Amendment. The landlords also contended requiring the information to be provided was a taking of property without just compensation, in violation of the Fifth Amendment; and violated procedural due process, substantive due process, and equal protection rights under the Fourteenth Amendment.
The panel rejected all of these contentions. The panel majority ruled that requiring the landlords to provide the information was not a search under the Fourth Amendment, because the information required overlapped information landlords had to provide under other regulations which they did not challenge, and therefore did not violate expectations of privacy. The court ruled there was no taking of property under the Fifth Amendment; that the due process protections were not triggered because the landlords had no property right at stake; and that the exemptions in the ordinance met equal protection requirements because they were rationally related to legitimate purposes.
A concurring/dissenting judge opined that the Fourth Amendment claim failed because there was no physical search, and so the majority did not have to address expectations of privacy.
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