1311

Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v.

James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil Dillard; Kenneth J. Henderson, et al., Defendants-Appellants.

Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v.

James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil Dillard; Kenneth J. Henderson, et al., Defendants, and

Al Boughey; Larry Reed, DefendantsAppellants.

Tomas ARMENDARIZ; Rosa C.

Arrnendariz, PlaintiffsAppellees, v.

James F. PENMAN, DefendantAppellant.

Nos. 93-55393, 93-55587 and 93-55748.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1994.

Decided Aug. 1, 1994.

Order Granting Rehearing En Bane November 25,1994.

Argued and Submitted Jan. 19, 1995.

Decided Feb. 7, 1996.

Christopher D. Lockwood, MacLachlan, Burford & Arias, San Bernardino, California, and Cynthia Ludvigsen, San Bernardino, California, for defendants-appellants.

Darlene Fischer Phillips, Hill, Fairer & Burril], Los Angeles, California, for plaintiffs-appellees.

Appeals from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding.

Before: WALLACE, Chief Judge, BROWNING, SCHROEDER, FLETCHER, POOLE, BEEZER, WIGGINS, KOZINSKI, JOHN T. NOONAN, Jr., T.G. NELSON, and MICHAEL DALY HAWKINS, Circuit Judges.

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Chief Judge WALLACE; Partial Concurrence and Partial Dissent by Judge SCHROEDER; Partial Concurrence by Judge BEEZER.

FLETCHER, Circuit Judge:

This is an interlocutory appeal from the denial of summary judgment to city employees who claim that they are entitled to qualified immunity. The recitation of events below necessarily follows the allegations of the parties'nothing has been put to the crucible of trial.

Several years ago the City of San Bernardino embarked on a program of vigorously enforcing its housing code. The City boarded up low-income housing units, evicting tenants among whom were suspected gang members, drug dealers and other criminals, and revoking the property owners' business licenses and certificates of occupancy. We consider whether the city officials responsible for the administration of this program can be sued for depriving the property owners of substantive due process or equal protection.

The plaintiffs are owners and former owners of low-income housing units in the Arden-Guthrie section of the City of San Bernardino ("the City"), an area of high crime and predominantly low-income housing. In 1991, the City conducted a series of housing code enforcement sweeps in Arden-Guthrie. The sweeps were massive undertakings, with city officials, police, firefighters, and housing code inspectors descending on the area to inspect dozens of pre-selected buildings. All told, the City summarily closed 95 buildings over a six-month period, evicting the tenants and driving them to other parts of the city.

The City didn't notify affected property owners in advance that the sweeps would occur, didn't inform owners at the time of the closures why their buildings were being shut down, and didn't identify the specific code violations they found until well after the sweeps had been completed and the buildings closed. In some cases, as many as six weeks passed before the owners were informed why their properties had been closed, leaving them without guidance as to what they needed to do to reopen units or how they could challenge the City's action. When the closure notices did arrive, they either were worded so vaguely as to be unhelpful or cited seemingly minor, easily repairable violations. For example, some notices cited "general dilapidation" as a reason for the closures. Others cited more specific, but no more compelling, reasons, such as holes in firewalls, which could be patched in a matter of hours, or air conditioning units in the windows,

which could be removed in minutes.^{Footnote 1} In conjunction with these evictions, the City revoked the plaintiffs' business licenses and certificates of occupancy, also without notice or an opportunity to be heard.

Coupled with other actions taken by the City, the closures placed property owners in a precarious position. If they wanted to reopen their properties, the plaintiffs had to obtain costly permits for repairs and run a gauntlet of city inspections conducted at the property owners' expense. Because the City had evicted the plaintiffs' tenants, the plaintiffs were earning no income from the properties to fund repairs, and many had so leveraged their properties that they could not qualify for city or federal rehabilitation loans, which have minimum requirements for an equity interest. Several plaintiffs allege that the City, as part of an effort to force them out of business or into line with the City's plan to rid the area of undesirable tenants, deliberately withheld loan money in order to hinder the plaintiffs' efforts to make repairs.^{Footnote 2} The City also shut off power to the closed buildings. With the area left largely deserted by the relocation of tenants, vagrancy and vandalism, became a serious problem. Departing tenants trashed their apartments in retaliation for being moved, and owners attempting to bring their buildings up to code often found their repairs wrecked by vandals before city inspectors arrived.

For all of these reasons, the plaintiffs feared that they would be unable to obtain new certificates of occupancy in a timely fashion. The timing of these certificates was particularly important. The owners' fourplexes were tolerated in an area zoned for two units per lot only because they were preexisting non-conforming uses. Under the City's interpretation of its Municipal Code and General Plan, the properties would lose that status if they remained vacant for more than 180 days.

In short, the sweeps took a substantial toll on the plaintiffs. To justify its summary closure of the plaintiffs' buildings, the City relied on its powers under the San Bernardino Municipal Code, which vests "the building official or his representative [with] summary power to secure from entry any structure which in his discretion he determines to be immediately dangerous or hazardous, or in any other manner injurious to public health or safety," City of San Bernardino, Municipal Code (SBMC), ch. 15.28.140, and permits the City, once it determines that a building is sufficiently dangerous, to "require the building ... to be vacated forthwith and not reoccupied until the required repairs and improvements are completed," SBMC, ch. 15.28.030.

Although the ostensible purpose of the City's code enforcement activity was the reduction of urban blight, the plaintiffs allege that city officials conducted these emergency sweeps for one or both of two pretextual motives. One alleged purpose of the sweeps was to force tenants with criminal records or suspected gang affiliations or both to relocate outside the City. The sweeps were billed as a "carrot and stick" approach to cleaning up Arden-Guthrie: If owners took on the mantle of law enforcement and evicted unwanted tenants, the City would provide rehabilitation loans and other assistance (the carrot); if owners did not cooperate, their buildings would be closed in the sweeps and their tenants would be evicted by the City (the stick). That model citizens might also be uprooted as a result of the program, or thatsome property owners might not be able to weather the storm of city inspections without the benefit of income from their properties, were unfortunate but necessary consequences of the plan. The plaintiffs also al-

lege that city officials conducted the sweeps to enable a commercial developer to acquire contiguous property in Arden-Guthrie on the cheap, bulldoze the low-income housing units, and replace them with a planned shopping center. According to the plaintiffs, the City effectuated these purposes by "faking" the existence of serious housing code violations purportedly discovered on the plaintiffs' properties during the sweeps in order to invoke the City building official's emergency powers to evict the plaintiffs' tenants and revoke the plaintiffs' business licenses and certificates of occupancy.

The owners filed this lawsuit under 42 U.S.C. § 1983 and the Fair Housing Act, 42 U.S.C. § 3601 et seq., stating the following four claims: 1) that closure of their property without pre-deprivation notice, a hearing, or exigent circumstances, and without adequate post-deprivation relief, violated their right to procedural due process under the Fourteenth Amendment; 2) that the city's invocation of its emergency powers to close down their properties when no real emergency existed, along with other actions by the city, including specifically the decision to deny rehabilitation loans to several of the owners whose properties were closed, was arbitrary and capricious, and violated their Fourteenth Amendment right to substantive due process; 3) that the city's decision to close down plaintiffs' properties violated the equal protection clause of the Fourteenth Amendment; 4) that the city's decision to focus the sweeps on Arden-Guthrie had a disparate impact on the minority community of San Bernardino in violation of the Fair Housing Act.

The complaint originally named dozens of city officials, but most proved to be immune from suit for one reason or another and were dropped from the case. Only six defendants remain: William Holcomb, the City's Mayor; James Penman, the City Attorney; Al Boughey and Larry Reed, two successive Directors of Planning and Building Services; Kenneth Henderson, Director of the city's Redevelopment Agency; and Nester Nazario, a loan officer at the Redevelopment Agency.^{Footnote 3}

These defendants filed motions for summary judgment, claiming they were protected by qualified immunity because their actions did not violate any clearly established federal constitutional or statutory rights. They also claimed that they were entitled to summary judgment because the plaintiffs had not created a genuine issue of material fact as to whether they directed, organized, or otherwise participated in the code enforcement sweeps.

The district court denied the motions, both as to qualified immunity and liability, and the defendants filed this interlocutory appeal. See Mitchell v. Forsyth,  472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (denial of qualified immunity is immediately appealable under the collateral order doctrine). A three-judge panel of our court affirmed the district court's denial of the defendants' request for qualified immunity on the plaintiffs' procedural due process claim, but reversed the district court's holding that the defendants were not entitled to qualified immunity on the plaintiffs' equal protection, substantive due process, and Fair Housing Act claims. One panel member dissented from the holding that the defendants were entitled to qualified immunity on the substantive due process claim. Armendariz v. Penman,  31 F.3d 860 (9th Cir.1994). The panel also held that the plaintiffs had not created a genuine issue of fact as to whether defendants Holcomb and Boughey played a role in the alleged conduct and, therefore, reversed the district court's denial of these defendants' motions for summary judgment. Id. at 870-71. Thus, the majority of the panel concluded that "[t]he defendants have qualified immunity as to all claims, except the procedural due process claims against defendants Larry Reed and James Penman". Armendariz, 31 F.3d at 863; but see id. at

.871-72 (Trott, J., dissenting as to substantive due process).

We do not revisit the panel's rulings that the "plaintiffs have stated a claim for procedural due process violations under 42 U.S.C. § 1983 with regard to defendants Holcomb, Boughey, Reed, and Penman," id at 866, or that those defendants were not entitled to qualified immunity from liability on that claim "because the law was clearly established at the time Holcomb, Penman, Reed and Boughey acted and it was unreasonable for them to believe that their actions were constitutional", id. at 869. Nor do we disturb the panel's dismissal of the Fair Housing Act claims, id. at 868-69. The portions of the panel's opinion dealing with these points remain in place as the law of the circuit. We vacate and reconsider those portions of the panel's opinion holding that defendants are entitled to qualified immunity from the plaintiffs' substantive due process and equal protection claims.

We conclude that the district court should have granted the defendants' motions for summary judgment on the plaintiffs' substantive due process claim. We affirm, however, the district court's denial of the defendants' motions for summary judgment on the plaintiffs' equal protection claim. Finally, we do not address issues relating to whether the pretrial record demonstrates genuine issues of material fact because such fact-based inquiries are not within the scope of an interlocutory appeal from the denial of qualified immunity. We vacate those portions of the panel opinion that deal with those issues and dismiss the appeal as to such issues.

II We start by determining the scope of our jurisdiction over this interlocutory appeal. We have jurisdiction to hear appeals only from "final decisions" of the district court. 28 U.S.C. § 1291. Section 1291 is borne out of recognition that piecemeal litigation increases trial costs, causes delays in the litigation, and risks the creation of unnecessary appellate work by presenting issues for review which could have been avoided entirely if trial had proceeded. See generally Firestone Tire & Rubber Co. v. Risjord,  449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981).

Of course, the general rule against interlocutory appeals has its exceptions. Under the "collateral order doctrine," an otherwise unappealable order is considered "final" and therefore appropriate for immediate review if it conclusively determines the disputed question, resolves an important issue completely separate from the merits, and would be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay,  437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); see Cohen v. Beneficial Indus. Loan Corp.,  337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

The denial of a city official's motion for summary judgment based on qualified immunity is immediately appealable as a collateral order. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. However, determining the scope of such an interlocutory appeal has often proved difficult for the courts. We must be cautious not to expand the Mitchell exception beyond its intended scope. See Swint v. Chambers County Comm'n, -------U.S. --------, -----, 115 S.Ct. 1203, 1211, 131 L.Ed.2d 60 (1995) (courts must not "encourage parties to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets"). "An ordinary summary judgment motion ... is not automatically transformed into a qualified immunity claim merely because defendants are federal officials." Velasquez v. Senko,  813 F.2d 1509, 1511 (9th Cir.1987); see also Todd v. United States,  849 F.2d 365, 368 (9th Cir.1988) ("The Supreme Court's grant of appellate jurisdiction under Mitchell is narrow.").

The defendants assert that they are entitled to qualified immunity because, even if the facts alleged by the plaintiffs are proven to be true, those facts do not support a claim of violation of clearly established law. This basis for the defendants' appeal falls within the heart of Mitchell, and we have jurisdiction to consider it here. Determining this purely legal issue does not require us to "consider the correctness of the plaintiffs version of the facts," but only "whether the legal norms allegedly violated by the defen-

dant were clearly established at the time of the challenged actions." Mitchell, 472 U.S. at 528,105 S.Ct. at 2816.

The defendants go further in this appeal, however. They argue that even if the relevant law was clearly established, they are entitled to summary judgment because the plaintiffs have failed to establish genuine issues of material fact for trial. Until recently, the question of whether we have jurisdiction to consider this argument would have been a difficult one due to conflicting statements within our own case law. Compare Burgess v. Pierce County,  918 F.2d 104, 106-07 (9th Cir. 1990) (determining in interlocutory appeal from denial of qualified immunity whether the plaintiff had presented a genuine issue of fact as to whether defendants had engaged in alleged conduct) with Velasquez, 813 F.2d at 1511 (dismissing for lack of jurisdiction an interlocutory appeal from the denial of a claim of qualified immunity based on the defendants' claim that they did not participate in the alleged conduct). The Supreme Court's recent decision in Johnson v. Jones, ----U.S. -------, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), simplifies our task considerably.

In Johnson, the Supreme Court held that Mitchell does not sanction review of a district court's order denying the defendant's motion for summary judgment on qualified immunity grounds when the basis for the defendant's motion is that the evidence in the pretrial record is insufficient to create a genuine issue of fact for trial. ' U.S. at ---------------------------------------------------------, 115 S.Ct. at 2156-59. Thus, an appellate court lacks jurisdiction in an interlocutory appeal to consider the question of whether the plaintiff has created a genuine issue of fact regarding whether particular defendants participated personally in the alleged wrongful conduct. Id.

Three lines of reasoning supported the Supreme Court's decision in Johnson. First, Mitchell itself emphasized repeatedly that an appeal from the denial of qualified immunity does not require the appellate court to consider the correctness of the plaintiffs version whether the plaintiff has created a genuine 2159 (assuming without deciding that an apof the facts. Johnson, ' U.S. at ---------, 115 S.Ct. at 2156. Second, the question of issue of material fact, even within the context of a motion for qualified immunity, cannot be said to be separate from the merits as required by the Cohen collateral order doctrine. Id. at----------------, 115 S.Ct. at 215657. Finally, an appeal from an order finding a genuine issue of material fact implicates different institutional concerns than one from an order holding that the relevant law was clearly established: Appellate judges do not enjoy a special expertise over trial judges regarding such factual determinations, so interlocutory review in such cases would not bring the same "important error-correcting benefits," and review of such a fact-based order would require the appellate court to scour the pretrial record, increasing delay in the litigation, with a high likelihood that the court would have to engage in an identical review after final judgment. Id. at--------------------, 115 S.Ct. at 2157-58.

Johnson defines the scope of this appeal. Rather than undertake a cumbersome review of the pretrial record to determine the sufficiency of the plaintiffs' evidence, we "simply take, as given, the facts that the district court assumed when it denied summary judgment for [a] (purely legal) reason." Id. at ------, 115 S.Ct. at 2159. The district court's order denying the defendants' motion for summary judgment does not state explicitly which facts the court assumed as true. Accordingly, we undertake a review of the pretrial record only to the extent necessary "to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Id

It is clear from Johnson, then, that we have jurisdiction to review the district court's decision that the defendants' alleged conduct violated clearly established law, but the collateral order doctrine does not provide appellate jurisdiction to review the district court's decision that genuine issues of material fact exist for trial. Neither we nor the Supreme Court has decided definitively whether an appellate court with jurisdiction to review a final collateral order may ever simultaneously review related rulings that are not themselves immediately appealable. See Johnson, -----U.S. at '', 115 S.Ct. at

pellate court could exercise such jurisdiction); Swint, ' U.S. at----121H2 (expressing some doubt as to whether such jurisdiction existed). But cf. Abney v. United States,  431 U.S. 651, 663, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977) ("[Sluch claims are appealable if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule."). Even assuming, however, that such discretionary "appellate pendant jurisdiction" exists, we would not exercise it here. The district court's decision that the plaintiffs have created material issues of fact regarding the defendants' personal participation in the alleged conduct is not "inextricably intertwined" with that court's decision that the plaintiffs' allegations support a claim of violation of clearly established law, nor is review of the former decision "necessary to ensure meaningful review of the latter." Swint, -----U.S. at ', 115 S.Ct. at 1212 (discussing, in the hypothetical, the scope of appellate pendant jurisdiction).

Ill We turn next to the question of whether the defendants are entitled to qualified immunity shielding them from liability for the plaintiffs' substantive due process claims. The defendants are entitled to qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,  457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.'' Siegert v. Gilley,  500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991).

We conclude that the plaintiffs have failed to state a claim of violation of their substantive due process rights. The panel majority reached this same conclusion by reasoning that even if the defendants faked an emergency and trumped up housing code viola, 115 S.Ct. at tions for the purpose of relocating suspected criminals, their conduct was not irrational: "[T]he reduction of crime by relocating criminals and reducing urban blight bears a rational relation to the public health, safety and general welfare." Armendariz, 31 F.3.d at 867. ^{Footnote 4}

We need not and do not address whether the City's conduct was rational. Even if the City's alleged conduct was "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare," Euclid v. Ambler Realty Co.,  272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926), the plaintiffs' substantive due process claim fails because it is preempted by other constitutional claims under the rule of Graham v. Connor,  490 U.S. 386,109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

We are all painfully aware that the area of substantive due process "has at times been a treacherous field" for the courts. Moore v. East Cleveland,  431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (Powell, J, for plurality). The Supreme Court's opinion in Lochner v. New York,  198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), now symbolizes an era in which the Court, invalidating economic legislation, engaged in a level of judicial activism which was unprecedented in its time and unmatched since. In an effort to scale back what had become an apparently unbounded source of judicial authority, the Supreme Court in recent decades has restricted the scope of substantive due process.

There can be no doubt that the Due Process Clause of the Fourteenth Amendment confers both procedural and substantive rights. See Foucha v. Louisiana,  504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437 (1992); United States v. Salerno,  481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987); Daniels v. Williams,  474 U.S. 327, 331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). However, the use of substantive due process to extend constitutional protection to

economic and property rights has been largely discredited. See generally Gerald Gunther, Constitutional Law at 432-35 (12th ed. 1991). Rather, recent jurisprudence restricts the reach of the protections of substantive due process primarily to liberties "deeply rooted in this Nation's history and tradition." Moore, 431 U.S. at 503, 97 S.Ct. at 1937. Thus, the Fourteenth Amendment protects against a State's interferences with "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," as well as with an individual's bodily integrity. Planned Parenthood v. Casey,  505 U.S. 833, 851, 112 S.Ct. 2791, 2807, 120 L.Ed.2d 674 (1992) (discussing cases); see Loving v. Virginia,  388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (marriage); Griswold v. Connecticut,  381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965) (contraception); Rochin v. California,  342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (bodily integrity); Pierce v. Society of Sisters,  268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925) (child rearing). These areas represent "a realm of personal liberty which the government may not enter." See Casey, 505 U.S. at 847, 112 S.Ct. at 2805. The cataloguing of these Fourteenth Amendment protections demonstrates that our Constitution embraces a notion of liberty encompassing more than the express provisions of the Bill of Rights.

However, we must pause before unnecessarily invoking substantive due process not grounded in explicit protections in specific amendments "because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. Harker Heights,  503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). The specific guarantees of the first Eight Amendments stake out reliable limits to the exercise of government authority in particular situations. Thus, "[wlhere a particular amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, ------- U.S. ------, ------, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (Rehnquist, C.J., for plurality) (quoting Graham, 490 U.S. at 395, 109 S.Ct. at 1871); see aZso Moore, 431 U.S. at 502, 97 S.Ct. at 1937 ("There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights.").

In Graham, the Supreme Court held that claims of excessive force brought under section 1983 must be analyzed under the explicit textual sources of constitutional protection found in the Fourth and Eighth Amendments, not the more subjective standard of substantive due process. Graham, 490 U.S. at 394-95, 109 S.Ct at 1870-71. The Court reaffirmed the Graham, rule in Albright, where the plaintiff alleged that the defendants violated his substantive due process rights by initiating a criminal prosecution without probable cause to believe he had violated state law. Albright, ' U.S. at ------, 114 S.Ct. at 810. The Court noted that "[t]he Framers considered the matter of pretrial deprivations of liberty, and drafted the Fourth Amendment to address it." Id. at ------, 114 S.Ct. at 813. Because an explicit textual provision of the constitution protected against the area of governmental conduct challenged by the plaintiff, Graham precluded the plaintiff from obtaining additional relief under the notion of substantive due process. Id at------------', 114 S.Ct. at 813-14.

One aspect of the plaintiffs' section 1983 claim alleges that the City closed the plaintiffs' buildings without notice or a hearing, invoking its emergency powers where no emergency existed; the panel's opinion provides a coherent and well-reasoned analysis of the procedural due process concerns implicated by this aspect of the plaintiffs' claim. See Armendariz, 31 F.3d at 865-66, 869-70. The plaintiffs' claim goes further, however. At its heart lies the plaintiffs' allegation that city officials conducted the sweeps and closed the plaintiffs' properties for no legitimate governmental purpose, i.e., for the purpose of allowing a shopping-center developer to acquire the properties at a reduced price. This allegation implicates substantive, not just procedural, concerns. "The first step in any [§ 1983] claim is to identify the specific constitutional right allegedly infringed". Al-

bright, ' U.S. at-----, 114 S.Ct. at 811. We recognize that "[cjertain 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, 69, 113 S.Ct. 538, 548, 121 L.Ed.2d 450 (1992), and that where the specific guarantees of more than one constitutional provision are implicated, "ttjhe proper question is not which Amendment controls but whether either Amendment is violated", United States v. James Daniel Good Real Property, ---U.S. ------, -----, 114 S.Ct. 492, 499, 126 L.Ed.2d 490 (1993). Because the Fourth and Fifth Amendments provide explicit limitations on the type of government conduct challenged by the plaintiffs, Graham dictates that those Amendments, not the Fourteenth Amendment's guarantee of substantive due process, should guide the analysis of the plaintiffs' claim. This conclusion follows straightforwardly from Graham, for while this case does not arise in the criminal context, the Supreme Court's admonition in Graham is no less applicable here than in that case or in Albright.

The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, see Ker v. California,  374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963), provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". "A 'seizure' of property occurs when 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, 1656, 80 L.Ed.2d 85 (1984) (footnote omitted). The Fourth Amendment protects property interests as well as expectations of privacy. Soldal, 506 U.S. at 62-69, 113 S.Ct. at 544-48. To the extent that the defendants, in an attempt to dislodge residents suspected of criminal acts, interfered with the plaintiffs' possessory interest in their apartment buildings under the emergency provisions of the housing code, the reasonableness of the seizure is in question, since those provisions are not designed as law enforcement measures. Cf. Alexander v. San Francisco,  29 F.3d 1355, 1361 (9th Cir. 1994) ("[A]n administrative search [to determine compliance with health and building codes] may not be converted into an instrument which serves the very different needs of law enforcement officials."). Thus, the plaintiffs' claim that the City faked violations of the housing code in order to interfere with the plaintiffs' interests in their properties for purposes unrelated to health and sanitation seeks redress for "a particular sort of government behavior", Albright, ---- U.S. at ----, 114 S.Ct. at 813, against which the Fourth Amendment protects. Indeed, the Supreme Court stated explicitly in Soldal that "the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." 506 U.S. at 69,113 S.Ct. at 548 (emphasis added).

The Fifth Amendment's "Takings Clause," made applicable to the states through the Fourteenth Amendment, Chicago, B. & Q.R. Co. v. Chicago,  166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897), see also Dolan v. Tigard, -----U.S. ------, -----n. 5, 114 S.Ct. 2309, 2316 n. 5, 129 L.Ed.2d 304 (1994), requires that "private property [shall not] be taken for public use, without just compensation". The amendment also provides that "[n]o person shall be ... deprived of ... property, without due process of law." It is overwhelmingly clear from more than a century of precedent that the government violates the Constitution when it takes private property for private use, and the bar on such "private takings" is certainly well-established law for the purposes of the qualified immunity issue before us in this case: "[T]he Court's cases have repeatedly stated that 'one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though com5 pensation be paid.' " Hawaii Housing Au-

thority v. Midkiff,  467 U.S. 229, 241, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984) (quoting Thompson v. Consol. Gas Utilities Corp.,  300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510 (1937)); see also Madisonville Traction Co. v. St. Bernard Mining Co.,  196 U.S. 239, 251-52, 25 S.Ct. 251, 255-56, 49 L.Ed. 462 (1905); Fallbrook Irrigation Dist. v. Bradley,  164 U.S. 112, 158, 17 S.Ct. 56, 63, 41 L.Ed. 369 (1896); Missouri Pac. R. Co. v. Nebraska,  164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896). What plaintiffs allege is a scheme by defendants to evict tenants, deprive the plaintiffs of rental income that could have been used to bring the buildings into compliance, prevent owners from learning what repairs were necessary to come into compliance, and invent new violations after plaintiffs had conducted repairs that would bring their properties into compliance. The alleged purpose of this scheme was to deprive the plaintiffs of their property, either by forced sale, driving down the market value of the properties so a shoppingcenter developer could buy them at a lower price, or by causing the plaintiffs to lose their properties by foreclosure. In fact, the majority of the plaintiffs have lost their properties by foreclosure. If the plaintiffs can prove their allegations, the defendants' actions would constitute a taking of the property. Such a taking, if the allegations are true, would seem not to have been for a "public use" as the Fifth Amendment requires but rather for the use of another private person, the shopping-center developer. If the city council of San Bernardino had by ordinance declared that a shopping center on the plaintiffs' property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city might have been able to acquire plaintiffs' property through the payment of just compensation, under the power of eminent domain. See Berman v. Parker,  348 U.S. 26, 75 S.Ct. 98,. 99 L.Ed. 27 (1954) (upholding taking of private property that government intended to reconvey to other private persons where the taking was part of a legislatively enacted plan found by legislature to be for public good). We hasten to add this is not an issue that we must decide.

While the Midkiff court noted that "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause", 467 U.S. at 241, 104 S.Ct. at 2329, what plaintiffs allege here is an uncompensated taking through a raw misuse of government power. If the allegations are true, the only determination that could possibly have been made that a shopping center on the plaintiffs' land was a "public use" would have been a secret determination by the defendants as executive-branch officials of the city or as individuals using the cloak of their official positions to effect their private ends. Thus, the usual extreme deference that courts owe to legislative determinations of public use, see Midkiff, 467 U.S. at 239-41, 104 S.Ct. at 2328-29, Berman, 348 U.S. at 32, 75 S.Ct. at 102 ("[W]hen the legislature has spoken, the public interest has been declared in terms well-nigh conclusive."), is not appropriate here. If officials could take private property, even with adequate compensation, simply by deciding behind closed doors that some other use of the property would be a "public use", and if those officials could later justify their decisions in court merely by positing "a conceivable public purpose" to which the taking is rationally related, the "public use" provision of the Takings Clause would lose all power to restrain government takings.

It is clear from Graham and Albright that when the Fourth Amendment provides limitations on the type of government conduct challenged by a plaintiffs claim, that Amendment, rather than the constitution's substantive due process protections, must govern the plaintiffs claim. Those cases, after all, involved claims that the Court held were governed, at least in part, by the Fourth Amendment. But while Graham and Albright make

clear that any "explicit textual source of constitutional protection", Graham, 490 U.S. at 395, 109 S.Ct. at 1871, preempts a more generalized substantive due process claim, the question of whether the constitutional bar on "private takings" preempts the plaintiffs' substantive due process claim is a difficult one because of the case law's imprecision as to the source of the bar: Does the prohibition originate in the Fifth Amendment Takings Clause ("[N]or s