## Facts

- J. Michael Cormack owned property later annexed by the City of Van Buren, Arkansas, on which he operated a golf driving range and annually leased space to a fireworks seller for a tent operation from June 20 to July 5.
- In 1999, Cormack entered a long-term lease with the fireworks company; compensation included a flat fee plus a percentage of sales.
- In 2004, the city annexed Cormack’s property; he alleged he received no notice and learned of the annexation through a television reporter.
- Van Buren prohibited fireworks sales within city limits, making violations misdemeanors.
- In June 2005, after the fireworks tent was erected, officer/code-enforcement officer Wesley Sandlin directed Cormack to remove it; when he did not, Sandlin and officer Chris Hoffsomer ordered the operation closed and issued a citation.
- Cormack was convicted in city court of violating the ordinance and pursued a de novo appeal in state court.
- While the state criminal matter was pending, Cormack filed a federal action under 42 U.S.C. § 1983 against the city, the city attorney, and the officers, alleging a taking without just compensation, lack of due process notice, and an unreasonable seizure/use of force.

## Issues

1. Whether a federal § 1983 Takings Clause claim was ripe when the property owner had not pursued or shown the inadequacy of available state compensation procedures.
2. Whether due process notice claims tied to the same alleged economic injury as the asserted taking could proceed without first pursuing state compensation remedies.
3. Whether the complaint stated a plausible Fourth Amendment claim based on officers’ enforcement of the fireworks ordinance.
4. Whether the pleadings supported municipal liability and individual liability for the asserted constitutional violations.

## Decision

- The Eighth Circuit affirmed dismissal of all claims.
- The takings claim was not ripe because Cormack did not pursue, or show inadequacy of, state inverse-condemnation or compensation remedies.
- The due process claims failed to the extent they sought relief for the same injury alleged as a taking and were subject to the same state-remedy requirement.
- The Fourth Amendment claim was insufficient on the pleadings where the officers acted to enforce a facially valid ordinance and the complaint did not allege conduct beyond ordinary enforcement.
- The complaint did not adequately allege a municipal policy or custom, and once the underlying constitutional claims failed, no basis remained for individual liability.

## Legal Principles

- A Fifth Amendment takings claim under § 1983 is not ripe in federal court until the plaintiff has sought, and been denied, just compensation through available and adequate state procedures.
- The Takings Clause bars takings without just compensation; where a state provides reasonable compensation mechanisms, the constitutional violation is not complete until those mechanisms are used and fail.
- Due process theories that seek recovery for the same economic loss alleged as a taking may be treated as subject to the same ripeness/state-compensation requirement.
- A complaint must plausibly allege an unreasonable seizure or excessive force; routine enforcement of a valid ordinance, without more, does not state a Fourth Amendment claim.
- Municipal liability under § 1983 requires allegations of an official policy or custom causing the constitutional injury (Monell).

## Conclusion

The Eighth Circuit held that Cormack’s federal takings and related due process claims were unripe because he did not pursue or show the inadequacy of state compensation remedies, and it upheld dismissal of his Fourth Amendment and municipal-liability theories because the pleadings did not state a viable constitutional violation or an actionable municipal policy or custom.


Cormack v. Settle-Beshears, 474 F.3d 528 (8th Cir. 2007)