DIANA GRIBBON MOTZ, Circuit Judge:
Shirley Presley, a long-time resident of Charlottesville, Virginia, brought this 42 U.S.C. § 1983 (2000) action against the City of Charlottesville and the Rivanna Trails Foundation ("RTF"), a nonprofit private corporation (collectively, the Defendants).
We must take as true the factual allegations in Presley's complaint. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.2003).
Presley's home and yard encompass less than an acre of land along the Rivanna River. In 1998, without having obtained her consent, the RTF began distributing a map that displayed a public trail — known as the Rivanna trail — crossing a portion of Presley's property. The City publicized the RTF's map on the City's official website. Relying on the Rivanna trail map, members of the public began traveling across Presley's yard, leaving behind trash, damaging the vegetation, and sometimes even setting up overnight camp sites. Initially, Presley did not realize the extent of the intrusion because she was caring for her ailing husband in a nursing home. After her husband's death in 2001, however, Presley became aware of the extent of the trail's use and began complaining to the RTF and the City about the trespasses.
Although the Defendants acknowledged their error, they assertedly neither changed the map nor stopped its distribution. Rather, several RTF officials and members of the Charlottesville city council met with Presley and asked her to give the Defendants an easement across her property in exchange for favorable tax treatment and other official favors (but not compensation). Presley refused.
The intrusions by trespassers persisted and became more severe. Presley called
When Presley filed this action in February 2005, the City and the RTF still had not amended the trail map. Presley alleges that the Defendants have engaged in a conspiracy to violate her constitutional rights. Specifically, she asserts that the Defendants' actions constitute an unreasonable Fourth Amendment seizure and deprive her of procedural and substantive due process rights under the Fourteenth Amendment.
Before addressing the merits of this appeal, we note at the outset that "[t]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint" and not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) (internal quotation marks omitted). For this reason, a Rule 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (explaining that a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" (internal quotation marks omitted)). Moreover, when, as here, a defendant seeks dismissal of a civil rights complaint, "we must be especially solicitous of the wrongs alleged" and "must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged." Edwards, 178 F.3d at 244 (emphasis in original) (internal quotation marks omitted).
We initially consider whether Presley has stated a claim under the Fourth Amendment, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable . . . seizures, shall not be violated." U.S. Const. amend. IV. Presley alleges that an unreasonable seizure of her property occurred here when private individuals trespassed onto her land due to the active and knowing encouragement of the Defendants.
The Fourth Amendment's protections against unreasonable seizures clearly extend to real property. See, e.g., United States v. James Daniel Good Real Property, 510 U.S. 43, 52, 114 S.Ct. 492, 126
The district court held that Presley's Fourth Amendment seizure claim was foreclosed because it "merely amount[ed]" to a Fifth Amendment takings claim. But the Supreme Court has time and again considered multiple constitutional claims based on the same facts. See, e.g., Locke v. Davey, 540 U.S. 712, 720 n. 3, 725, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (Free Exercise, Free Speech, and Equal Protection Clauses); Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Fifth and Sixth Amendments); Alexander v. United States, 509 U.S. 544, 546-47, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (rejecting First Amendment claim on the merits but remanding for reconsideration of Eighth Amendment claim).
As the Court has explained, "[c]ertain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution's commands." Soldal v. Cook County, 506 U.S. 56, 70, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Accord James Daniel Good Real Property, 510 U.S. at 50-52, 114 S.Ct. 492. Indeed, the Court has squarely rejected the argument that, on the basis of a single set of facts, a plaintiff could only assert the violation of one constitutional provision, holding instead that the plaintiff could simultaneously bring a due process claim and a Fourth Amendment claim. See James Daniel Good Real Property, 510 U.S. at 52, 114 S.Ct. 492; Soldal, 506 U.S. at 70-71, 113 S.Ct. 538. Moreover, the Court has observed that it sees "no basis for doling out constitutional protections" one at a time; rather, a court should examine each constitutional claim in turn. Soldal, 506 U.S. at 70, 113 S.Ct. 538.
In just one circumstance has the Supreme Court held that a single set of facts may not simultaneously give rise to two constitutional violations: when one of the provisions assertedly violated contains only a "generalized notion" of constitutional rights — such as substantive due process — and the other provision is "an explicit textual source of constitutional protection" that specifically addresses the precise
Moreover, contrary to the suggestion of the district court, recognizing that a Fourth Amendment claim and a Fifth Amendment claim may arise from the same appropriation of property does not "extinguish" the distinction between a seizure and a taking. Many seizures — for example, forfeitures — are not takings at all. See, e.g., United States v. One Parcel of Real Property with Buildings, Appurtenances, and Improvements, Known as Plat 20, Lot 17, Great Harbor Neck, 960 F.2d 200, 210 (1st Cir.1992) ("[I]t is settled that if the federal government's actions comport, procedurally and substantively, with the terms of a lawfully enacted forfeiture statute, it may seize private property without compensating the owner."). And many takings — for example, regulatory takings — likely do not sufficiently interfere with possessory interests to constitute a seizure. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (noting that a regulation could effect a taking even if there was no appropriation of property or ouster of the owner's possession).
More importantly, even when the same appropriation does constitute both a seizure and a taking, meaningful legal differences continue to separate a Fourth Amendment seizure claim from a Fifth Amendment takings claim. To prevail on a seizure claim, a plaintiff must prove that the government unreasonably seized property. Soldal, 506 U.S. at 71, 113 S.Ct. 538. By contrast, to make out a takings claim, a plaintiff must demonstrate that the government took property without just compensation. Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Because the legal elements of a seizure claim and a takings claim differ, there is no danger that one constitutional provision will subsume the other, even if a single set of facts provides the basis for a cause of action under both.
In sum, here, as in James Daniel Good Real Property and Soldal, "the seizure of property implicates two explicit textual sources of constitutional protection, the Fourth Amendment and the Fifth." James Daniel Good Real Prop., 510 U.S. at 50, 114 S.Ct. 492 (internal quotation marks omitted); Soldal, 506 U.S. at 70, 113 S.Ct. 538. In such circumstances, the Supreme Court has directed that "the proper question is not which Amendment controls but whether either Amendment is violated." James Daniel Good Real Prop., 510 U.S. at 50, 114 S.Ct. 492.
Notwithstanding this clear directive, the Defendants here, echoing those in James Daniel Good Real Property and Soldal, assert that one Amendment (here, as in Soldal, the Fifth) "provides the full measure" of relief. See James Daniel Good Real Prop., 510 U.S. at 50, 114 S.Ct. 492. And echoing the lower court in Soldal, the dissent accepts that argument on the rationale that to do otherwise would permit the Fourth Amendment to undermine the
The dissent ignores James Daniel Good Real Property and seeks to distinguish Soldal from the case at hand on the basis of a single purported factual difference. The dissent concedes that Presley, like the Soldals, has alleged a seizure, but argues that in the Soldal seizure there was "no element of public use," post at 495, while the seizure here was effectuated "for permanent public use," id. at 492. In the dissent's view, "the presence of a public use is a critical fact that distinguishes this case from Soldal. . . ." Id. at 495.
The dissent's "critical" distinction fails. Although the seizure at issue in Soldal — governmental assistance with an illegal eviction — may not have been for a public use,
Like the lower court in Soldal, the dissent here worries that applying the Fourth Amendment to seizures of real property would lead to "unworkable" results. Compare post at 18, 20, with Soldal, 942 F.2d at 1077. But the Supreme Court in Soldal expressly rejected this concern, explaining why it is appropriate to subject even seizures for a public purpose to constitutional scrutiny. Soldal pointed out that because "reasonableness" is still the "ultimate" Fourth Amendment standard, numerous seizures of the "type" in Soldal, including those pursuant to a court order, "will survive constitutional scrutiny," since a "showing of unreasonableness" in such circumstances will be a "laborious task indeed."
Put simply, that Presley may also have a claim under the Fifth Amendment's Takings Clause does not bar her from bringing a Fourth Amendment seizure claim.
The district court alternatively held that no seizure had occurred here because Presley was not "completely deprived . . . of her possessory interests in her property." But a deprivation need not be this severe to constitute a seizure subject to constitutional protections. Rather, the Fourth Amendment also governs temporary or partial seizures. See United States v. Place, 462 U.S. 696, 705, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ("The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent."); Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir.2005) (noting that "substantial damage to [a] couch" was a seizure); United States v. Gray, 484 F.2d 352, 356 (6th Cir.1973) (holding that temporarily removing rifles from a closet to copy down their serial numbers was a seizure).
In fact, the Supreme Court has held that a seizure of property occurs whenever "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Presley has alleged an "interference with" her "possessory interests" that is clearly "meaningful"; indeed, this interference has assertedly been disruptive, stressful, and invasive. Her complaint states that she has been deprived of the use of part of her property due to the regular presence of a veritable army of trespassers who freely and regularly traverse her yard, littering, making noise, damaging her land, and occasionally even camping overnight. This constant physical occupation certainly constitutes a "meaningful interference" with Presley's "possessory interests" in her property.
Of course, it is private individuals, not City officials, who have actually interfered with Presley's possessory interests here. Although private actions generally do not implicate the Fourth Amendment, when a private person acts "as an agent of the Government or with the participation or knowledge of any governmental official," then the private person's acts are attributed to the government. Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652 (internal quotation marks omitted). The government need not compel nor even involve itself directly in the private person's actions. For example, in Skinner v. Railway Labor
As in Skinner, several factors in this case "combine to convince us that [the Defendants] did more than adopt a passive attitude toward the underlying private conduct" and that therefore the acts of private persons are attributable to the Defendants. See id. at 615, 109 S.Ct. 1402. At some point, the Defendants knew that their map was erroneous.
Nevertheless, despite this knowledge, the Defendants assertedly did nothing to correct their error, and consequently, in reliance upon the erroneous map, private individuals trespassed onto Presley's yard. Moreover, when Presley attempted to protect her own property, the Defendants initiated a meritless criminal prosecution against her to force her to take down the razor wire. See Soldal, 506 U.S. at 60 n. 6, 113 S.Ct. 538 (noting that Fourth Amendment is implicated when government officials prevent lawful resistance against seizures effected by private persons). These factors "are clear indices of the [Defendants'] encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment." Skinner, 489 U.S. at 615-16, 109 S.Ct. 1402; see also United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981) (noting that a private search is attributed to the government if the government is "involved . . . indirectly as an encourager of the private citizen's actions").
In sum, we cannot agree with the district court that Presley "can prove no set
Although Presley's Fourth Amendment claim survives the Defendants' motion to dismiss, her procedural due process claim does not. Even assuming that Presley suffered a deprivation in this case, the district court correctly recognized that because the only deprivation that she has alleged is effectively a physical taking,
In so holding, we recognize that Presley asserts that she was not afforded predeprivation notice or a hearing. Ordinarily, such predeprivation process is required; "absent the necessity of quick action by the State or the impracticality of providing any predeprivation process, a post-deprivation hearing [is] constitutionally inadequate." Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (internal quotation marks omitted).
But a taking differs from other deprivations, both in its importance to governance and in the additional procedural protections provided whenever a taking occurs. As the Supreme Court explained long ago, "The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state." Georgia v. City of Chattanooga, 264 U.S. 472, 480, 44 S.Ct. 369, 68 L.Ed. 796 (1924). And, when the facts of a case establish a taking (regardless of whether the plaintiff has alleged one), the owner of the taken property is constitutionally entitled to two protections not afforded to others suffering property deprivations: the government must demonstrate that the taking was for a public use, and the government must afford the owner just compensation. The government's heightened interest in eminent domain and the unique safeguards surrounding takings necessarily affect any procedural due process analysis. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (noting that the "probable value" of "substitute procedural safeguards" and the "Government's interest" are two of the three "distinct factors" to be weighed in analyzing whether the process provided was adequate).
Perhaps in light of these concerns, a century of precedent has created a distinct body of due process law for cases like the present one in which the challenged deprivation is a physical taking. Under these precedents, government entities need not provide a hearing before they physically take private property, so long as the taking is for a public use. Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 64 L.Ed. 135 (1919) ("[A] hearing thereon is not essential
Nor need the government provide notice before effecting a physical taking. Rather, in the takings context, the Due Process Clause only entitles property owners to adequate notice prior to a judicial condemnation or just-compensation proceeding. See Schroeder v. City of New York, 371 U.S. 208, 212-13, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956). Entitlement to notice in this context merely follows the well-established rule, articulated in Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), that notice is "[a]n elementary and fundamental requirement of due process in any [judicial] proceeding which is to be accorded finality." Thus, when a government entity condemns land, notice must precede the initiation of judicial proceedings that will finally determine the value of that land, whether those proceedings occur before the government takes physical possession of the land, see Schroeder, 371 U.S. at 212-13, 83 S.Ct. 279, or afterward, see Bailey v. Anderson, 326 U.S. 203, 205, 66 S.Ct. 66, 90 L.Ed. 3 (1945). But the government need not provide notice prior to a physical taking that, as here, is not itself preceded by any judicial process.
Rather, when the alleged deprivation is effectively a physical taking, procedural due process is satisfied so long as private property owners may pursue meaningful postdeprivation procedures to recover just compensation. See Bailey, 326 U.S. at 205, 66 S.Ct. 66 (holding that "it has long been settled that due process does not" require a hearing "in advance of [land's] occupation . . . provided only that the owner have opportunity . . . to be heard" prior to a final determination "of the value of the land taken"); Fulcher v. United States, 632 F.2d 278, 291 (4th Cir.1980) (en banc) (Phillips, J., concurring) ("[T]here can be no questions of entitlement to due process notice as an incident to the prior taking by physical seizure; all the process due in respect of the right to compensation is supplied by the availability of the inverse condemnation cause of action.").
These well-established principles govern the case at hand. If we accept Presley's factual allegations, as we must at this stage in the proceedings, then the City has physically taken, and therefore deprived Presley of, some of her property. Nevertheless, Presley cannot show that she was denied adequate procedures to obtain just compensation. Under Virginia law, aggrieved property owners may file an inverse condemnation action pursuant to Virginia's declaratory judgment statute. See Richmeade, L.P. v. City of Richmond, 267 Va. 598, 594 S.E.2d 606, 607 (2004) (citing Va.Code Ann. § 8.01-184 (West 2000)). If they prevail, they may obtain a court order requiring that the relevant governmental body comply with Virginia's established procedures for determining compensation. See Va.Code Ann. § 8.01-187 (West 2000). Because Virginia law provides an adequate procedure for obtaining compensation for a taking — a procedure readily available to Presley — Presley has alleged no denial of procedural due process.
One final note: Our holding today may seem to raise the specter of government entities deciding to physically take property (for which no predeprivation process is due) rather than pursuing the more gruelling
Fulcher, 632 F.2d at 291 n. 11 (Phillips, J., concurring). We believe that Judge Phillips's insight applies with undiminished force today.
Finally, we turn to Presley's substantive due process claim. Her complaint alleges an "abuse of governmental power" based on the defendants' willful encouragement of private individuals to trespass onto her property.
Graham v. Connor controls. Graham held that substantive due process cannot independently support a claim when "an explicit textual source of constitutional protection" governs the precise conduct at issue. 490 U.S. at 395, 109 S.Ct. 1865. For the reasons discussed above, all of Presley's claims fall within the ambit of the Fourth Amendment Seizure Clause and the Fourteenth Amendment's procedural due process protections. Thus, those provisions, "not the more generalized notion of `substantive due process,' must be the guide for analyzing [Presley's] claims." Id.
For the foregoing reasons, we affirm the judgment of the district court dismissing Presley's substantive and procedural due process claims, reverse the judgment of the district court dismissing her Fourth Amendment seizure and conspiracy claims,
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TRAXLER, Circuit Judge, concurring in part and dissenting in part:
Today's decision, in my view, departs from a long and well-established body of law under the Fifth Amendment and drastically changes important substantive and procedural aspects of federal inverse condemnation actions. As I explain below, permitting Presley to pursue her claim under the Fourth Amendment results in nothing less than the application of a new standard of liability, the creation of a new spectrum of damages, and the elimination of procedural prerequisites for pursuing an inverse condemnation claim in federal court.
According to Presley's complaint, the City "seized" a strip of her land for a public use — to establish a section of a public hiking trail along the Rivanna River. She does not want her land used by the public, however, and sued to stop the City from representing to the public that her
At first glance, the Fourth Amendment may appear to apply in this situation. There was a seizure of her property,
First, to say the City's actions may fall within the definition of a seizure does not necessarily mean Presley's claim arises under the Fourth Amendment. Indeed, a "seizure" as defined in Fourth Amendment cases occurs in every case where there is a
Moreover, permitting plaintiffs like Presley to proceed under the Fourth Amendment would expose governments to a radically different measure of damages than would be available in a traditional inverse condemnation action where the plaintiff's damages are generally limited to the fair market value of the property taken. See Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 10, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984) ("`Just compensation' . . . means in most cases the fair market value of the property on the date it is appropriated."). A plaintiff asserting a Fourth Amendment violation, however, would be entitled to recover the full measure of damages typically available in a § 1983 action, including damages for the emotional distress caused by the government's unreasonable conduct, and even punitive damages in the proper case. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) ("We have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution. Accordingly, when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.") (footnote, citations, and internal quotation marks omitted); Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ("[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."). To allow a plaintiff's characterization of her claim to effect such a radical difference in the government's potential liability seems unwise, to say the least.
I also believe that permitting Presley to pursue a Fourth Amendment claim under the facts of this case is inconsistent with existing Fourth Amendment jurisprudence. Most Fourth Amendment seizure
Even assuming, however, that the continuing nature of the seizure was not an insuperable obstacle to Presley's Fourth Amendment claim, application of the general Fourth Amendment standard would simply be unworkable in cases like this one. Reasonableness is the overarching standard in Fourth Amendment inquiries. I cannot envision a case where a government taking of private property for a public purpose without just compensation, which is what Presley alleges happened in this case, would be anything but unreasonable per se. To accept Presley's characterization of her claim as arising under the Fourth Amendment would thus create an entire class of constitutional tort claims where liability on the part of the government would be virtually automatic and where the government would be exposed to the full panoply of common-law damages.
Presley relies almost exclusively on the Supreme Court's opinion in Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). In Soldal, police officers facilitated the improper repossession of a mobile home by private parties. The owner of the mobile home brought an action under 42 U.S.C.A. § 1983 alleging that the police officers violated the Fourth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments. The Seventh Circuit rejected the plaintiff's efforts to bring a Fourth Amendment claim against the officers, concluding that the claim was properly viewed as alleging, at most, a due process claim. The Supreme Court reversed, holding that "[c]ertain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution's commands." Id. at 70, 113 S.Ct. 538. The Court noted that the Fourth Amendment is not limited in its application to cases arising in a criminal context and that the Fourth Amendment protects private property interests as well as privacy interests. See id. at 69, 113 S.Ct. 538. Because the actions alleged by the plaintiff implicated those interests, the Court concluded that the complaint alleged a "seizure" within the meaning of the Fourth Amendment and that the plaintiff must be permitted to proceed with that claim. See id. at 72, 113 S.Ct. 538.
While the Soldal Court concluded that a seizure within the meaning of the Fourth Amendment had occurred in that case,
Thus, the consequences of a conclusion that Presley may maintain her claim under the Fourth Amendment are substantial, and I do not believe that Soldal compels the conclusion Presley asserts. Unlike the case at bar, there was no element of public use at issue in Soldal; the police in Soldal used their authority to help a private party carry out a re-possession for purely private purposes. In my view, the presence of a public use is a critical fact that distinguishes this case from Soldal and makes it unwise to apply the Soldal analysis to the facts of this case. It is worth noting again that every physical taking of property for public use involves a seizure as that term is defined in Soldal and other Fourth Amendment cases. I am unwilling to conclude that Soldal's rather unremarkable holdings — that a given set of facts can sometimes support more than one constitutional claim and that a seizure within the meaning of the Fourth Amendment occurred when state actors facilitated the forceful wrenching of a mobile home from its moorings and the moving of the mobile home to a different site — silently worked a sea change in the law of eminent domain.
Accordingly, I would hold that although the district court erred by concluding that no seizure occurred in this case, the dismissal of Presley's complaint was nonetheless proper. See, e.g., Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir.1996) (en banc) (noting "the well-recognized authority of courts of appeals to uphold judgments of district courts on alternate grounds"). Although Presley might be unhappy with the City's apparent decision to place a public trail across her property, the exercise of eminent domain does not require the consent of the affected landowner. Her remedy is to initiate an inverse condemnation action in state court and seek just compensation for the public easement that the City created over a portion of her property. See Williamson, 473 U.S. at 194-96, 105 S.Ct. 3108. At that point, the City would be required to decide how to proceed. If the City believes that the public is best served by the trail continuing to cross Presley's property, then it would be required to pay her just compensation for the permanent easement across her land. If the City were instead to decide that the trail could be relocated so that it did not cross Presley's property, then it would be required to compensate her only for the time that easement was in place. If Presley does not receive just compensation through the state proceedings, her Fifth Amendment claim would then be ripe. But until then, Presley's constitutional claim based on the taking of her property for a public purpose is premature and she cannot circumvent the ripeness hurdle by couching her claim in Fourth Amendment terms. Thus, I believe the district court properly dismissed this claim.
In sum, I concur in Parts I, III, and IV of the majority opinion but respectfully dissent from Part II.