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A self-described “urban cowboy” is fighting a Georgia county over horses it seized from him years ago.
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The last clause of the Fifth Amendment is straightforward: “nor shall private property be taken for public use, without just compensation.” You don’t have property rights if the government can take your stuff for no reason or without paying. But how do you make the government pay? An appeals court just issued a critical ruling that says people can go to federal court when the government won’t pay them.
Brandon Fulton is known around Atlanta as the “Urban Cowboy.” In 2017, Fulton was charged by Fulton County with neglecting animals. Seven of his horses were confiscated. Almost a year later, the criminal charges were dropped but the horses were never returned to him. Nearly two years later, Fulton sued the county for compensation in federal court, claiming that the horses were worth tens of thousands of dollars.
While you might think Fulton would simply need to prove that the county took his animals without proper legal process and what his animals are worth, the Fulton County Board of Commissioners said he couldn’t sue them in federal court. The district court agreed and said that there is no way to sue a government directly for violating the 5th Amendment’s Takings Clause.
The Government Sets the Rules for How You Can Sue the Government
Generally, you cannot sue the government unless it agrees that it can be sued. For instance, the federal government passed the Ku Klux Klan Act in 1871 to allow people to sue state and local government officials who violated their constitutional rights. Today, that law is Section 1983 of the U.S. code.
There is no federal law that explicitly says that people can go to federal court to sue state or local government over violations of the Takings Clause. In fact, last year the U.S. Supreme Court refused to rule on the issue in a case brought by Texas ranchers whose property had been effectively taken from them by a Texas transportation project that flooded their land.
Texas had moved this case to federal court and then successfully argued that the ranchers had no right to sue them in federal court. After the Supreme Court took up the case, Texas changed its tune and admitted that the ranchers could sue after all (at least under Texas state law). With the ranchers’ path to compensation back open, the Court declined to rule on the big question of whether the Takings Clause on its own grants the right to be heard in federal court.
Now, a year later, the 11th U.S. Circuit Court of Appeals answered “yes” to that question and ruled for Brandon Fulton. It could be a landmark decision.
The History Behind the Bill of Rights’ Takings Clause
The ruling is packed with interesting history. The majority notes that, in a strange parallel, one of the motivations behind including the Takings Clause in the Bill of Rights was the seizure of horses. When George Washington’s army was desperately in need of horses, the animals were taken from nearby farms. In the middle of the American Revolution, the farmers had no legal way to demand payment.
John Jay, the first chief justice of the Supreme Court, proposed a legal remedy for takings in a 1778 letter. James Madison then crafted the Takings Clause and included it in the proposed 5th Amendment. But in the early years of the republic, the federal courts were a small part of the still small federal government. It wasn’t always clear what kind of cases they could hear.
In the first half of the 19th century, the primary way to get just compensation was to go to Congress. But as the country grew, it became unworkable for the legislature in Washington to handle all the claims. By the Civil War, President Abraham Lincoln was calling on Congress to hand these duties over to the judiciary. In 1887, the federal government passed the Tucker Act to establish the legal framework for claims.
Appeals Court: The Constitution Means What It Says
The appeals court majority is clear that the government can establish procedures for how people can vindicate their rights, but the Takings Clause demand is a floor that can’t be ignored. They write: “At the end of the day, we read the words of the Takings Clause to mean what they say. When a government takes private property, it’s on the hook for ‘just compensation.’”
The dissent in this case comes from the chief judge of the 11th Circuit, Judge William Pryor. Pryor says that there might be other legal paths for Fulton’s case, including a lawsuit under Section 1983. The majority counters that such a lawsuit would very likely get dismissed under qualified immunity, again leaving Fulton without his just compensation.
With Pryor in dissent, there is a decent chance that the entire 11th Circuit could rehear the case or that the Supreme Court could accept it.
Fulton County took Brandon Fulton’s horses and didn’t convict him of a crime. It didn’t even try to take the horses through civil forfeiture (which has constitutional problems of its own.) Judges shouldn’t do legal backflips to keep Americans from vindicating their property rights secured by the Constitution. Fulton deserves his day in court.
