Takings Claims Against Parking Lot Laws After Cedar Point

  • Date:
  • September 10, 2021

Last Term, in Cedar Point Nursery v. Hassid, the Supreme Court found that a California regulation requiring agricultural employers to allow union organizers onto their farms constituted a taking. Noah Levine has a great blog post here about what Cedar Point could mean for takings claims regarding large capacity magazines and other forms of gun-related personal property. There might also be implications for a kind of pro-gun regulation—“parking lot laws” that require certain private property owners to allow guns onto their land.

About half the states have adopted parking lot laws, sometimes known as “take your gun to work” laws. Such laws vary in their particulars, but in general they make it harder (or even criminal) for private entities—businesses, for example—to exclude guns from their property, for example by requiring that they allow employees to leave guns in their cars during working hours. I wrote about these laws—and how they might infringe the Second Amendment rights of property owners—ten years ago in The Right Not to Keep or Bear Arms.

At that time, takings claims against parking lot laws had proven largely unsuccessful. In Ramsey Winch v. Henry, for example, the Tenth Circuit rejected a takings challenge to Oklahoma’s law, which made it illegal for any “person, property owner, tenant, employer, or business entity” to prohibit any person besides a convicted felon from bringing a gun onto “property set aside for any motor vehicle.” The court concluded that “Plaintiffs have not suffered an unconstitutional infringement of their property rights, but rather are required by the Amendments to recognize a state-protected right of their employees.” Following cases like Loretto v. Teleprompter Manhattan CATV Corp., the Tenth Circuit concluded that a “per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.”

But in Cedar Point, the Supreme Court held that “government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation.” California’s law, the Court concluded, “appropriates a right to physically invade the growers’ property—to ‘take access’, as the regulation provides. It is therefore a per se physical taking under our precedents,” notwithstanding the fact that there was no permanent physical occupation.

Cases like Ramsey Winch would seem to come out the other way under Cedar Point’s rule. It is not immediately clear to me how to distinguish “government-authorized invasions of property” by armed individuals from those by labor organizers. If anything, the former would seem to be a more serious invasion of the interests that the right to exclude is thought to protect—things like security and control.

That’s not to say that the argument is easy—as Lee Fennell points out in a forthcoming paper on Cedar Point, implicit takings doctrine feels increasingly like an elaborate escape room. Maybe there’s an argument that parking lot laws—like, for example, anti-discrimination rules that forbid certain kinds of exclusion—are constitutional as applied to businesses open to the public. Cedar Point, it should be noted, distinguished cases like PruneYard Shopping Center v. Robins on the basis that the latter involved a mall that was “open to the public, welcoming some 25,000 patrons a day.” The Court in Cedar Point continued: “Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.” But that kind of line-drawing wouldn’t seem to save a law like Oklahoma’s, which appears to apply to prevent any “person, property owner, tenant, employer, or business entity” to prohibit any person besides a convicted felon from bringing a gun onto “property set aside for any motor vehicle.”

This is not an argument for or against the wisdom of parking lot laws. (On that point, see this interesting new paper by Ian Ayres and Spurthi Jonnalagadda on public preferences with regard to “no carry” default rules.) The question is simply whether states must provide just compensation when they take away property owners’ right to exclude others—whether those others are labor organizers or armed individuals.