This post continues looking at the claims brought in our last post, where “litter” was removed from the plaintiff’s property pursuant to Town resolution, thus spurring a variety of constitutional challenges to the Town’s actions. The first claim we discussed was a bill of attainder claim, which was found insufficient to survive summary judgment.

Next the Court looked at the due process claims. It was not disputed that the Town had been aware of the plaintiff’s property for years before finally taking action. Given this long gestation period before the Town produced a so-called “emergency” action to address it, the Court found that making due process claim was plausible on the grounds that the Town had arbitrarily decided to declare the conditions on the Plaintiff’s property to be an immediate danger to the public. Thus this claim was allowed to proceed.

Third, the Court looked to the Fourth Amendment Claim. Generally speaking, a warrant is not required to abate a public nuisance, and here the property seized was considered a public nuisance. The hitch was that the entry onto the plaintiff’s property to seize the property in the first place still must be reasonable under the Fourth Amendment. Moreover, the property removed included not only the likes of inoperable cars, but tools belonging to the plaintiff. Given this, the Court found that there were genuine issues of material fact regarding the reasonableness of the seizure. Thus this claim also survived summary judgment.

We will look at the final claims and affirmative defenses in the next post.

Once again, the case is Ferreira v Town of East Hampton, 2014 WL 5637882 (E.D.N.Y.).