In 3Pak LLC v. City of Seattle, published May 5, 2026, the 9th Circuit Court of Appeals affirmed in part and reversed in part the district court’s dismissal of a lawsuit brought under 42 U.S.C. § 1983 and Washington State law. During the 2020 protests sparked by the killing of George Floyd, protestors occupied a 16-block area within the Capitol Hill neighborhood of Seattle and formed the Capital Hill Occupied Protest (“CHOP”). In response to protestors, the Seattle Police Department abandoned a police station near CHOP, and dramatically reduced its policing of the area. The plaintiffs, a restaurant and an apartment building in CHOP, allege that for six months they dealt with police inaction to vandalism, trespass, theft, unsanitary conditions, road blockades, and gunfire. The businesses also alleged that the city supported, encouraged, and endorsed the CHOP occupation of the area, including suppplying material resources to CHOP protestors. The businesses claimed they suffered economic losses from tenants breaking their leases or demanding recent concessions; costs to repair broken and boarded windows; costs to clean graphitti; and lost business due to vendors, customers, and prospective tenants deterred by the businesses’ location adjacent to the protest. They alleged state-created danger, Takings Clause, and state law nuisance claims. The district court granted a motion to dismiss.
The 9th Circuit affirmed dismissal of the federal claims. It ruled that the state-created-danger doctrine does not apply to economic harm. Section 1983 provides a cause of action against state officials who deprive plaintiffs of their right under 14th Amendment substantive due process to be free from state-created danger. This is an exception to the general rule that there is no affirmative right under the 14th Amendment to governmental aid. The exception applies where the state has placed a victim in a worse position than that in which he would have been if the state had not acted at all. But the 9th Circuit and other circuits have extended this exception only to dangers to life or liberty, not property. The businesses claim only injury to due-process property interests. Courts are reluctant to expand the concept of substantive due process. The 9th Circuit also ruled that the plaintiffs failed to state a Takings Claim under the theories of per se taking and right-of-access taking. The per se taking claim fails because the plaintiffs do not allege any affirmative government invasion of the plaintiffs’ own property. They argue only that the City’s material support of CHOP led to protestor occupation of property near plaintiffs’ property. That is insufficient to state a per se taking claim. The right-of-access claim fails because Washington State law does not recognize a right-of-access property right where the impairment to access is merely temporary. The six-month period here was a temporary restriction. The 9th Circuit reversed dismissal of the plaintiffs’ state law claims as untimely, holding the claims were tolled under state law.
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