3pak LLC v. City of Seattle

── 3pak LLC v. City of Seattle ── Court: Court of Appeals for the Ninth Circuit Date: May 05, 2026 Category: General FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 3PAK LLC, doing business as Oma No. 24-7139 Bap; HUGO PROPERTIES, LLC, D.C. No. 2:23-cv-00540- Plaintiffs - Appellants, TSZ and MOLLY MOON'S HOMEMADE OPINION ICE CREAM, LLC, Plaintiff, v. CITY OF SEATTLE, Defendant - Appellee. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted November 18, 2025 Seattle, Washington Filed May 5, 2026 2 3PAK LLC V. CITY OF SEATTLE Before: M. Margaret McKeown, Richard A. Paez, and Roopali H. Desai, Circuit Judges. Opinion by Judge McKeown SUMMARY* State-Created Danger Doctrine / Takings Clause The panel affirmed in part and reversed in part the district court’s dismissal of an action brought by 3Pak, LLC d/b/a Oma Bap and Hugo Properties, LLC (collectively, the “Businesses”) alleging state-created danger, nuisance, and Takings Clause claims, arising from the City of Seattle’s decision not to police or otherwise intervene in ongoing protests sparked by the murder of George Floyd. In June 2020, protestors occupied a sixteen-block area within the Capitol Hill neighborhood of Seattle and formed the Capitol Hill Occupied Protest (“CHOP”). In response to pressure from protestors, the Seattle Police Department abandoned its nearby East Precinct building and dramatically reduced its policing of Cal Anderson Park, a public park at the heart of CHOP, and the surrounding city blocks. CHOP was forcibly disbanded by police on July 1, but protests and encampments persisted until as late as December 2020, causing disruption to the neighborhood. The Businesses, both located across from Cal Anderson * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  3PAK LLC V. CITY OF SEATTLE 3 Park, sued Seattle, claiming that the City’s facilitation of the CHOP protests led to their total economic devastation. The panel first held that the state-created danger doctrine does not apply to the Businesses’ economic harm stemming from Seattle’s decision to withdraw police from the East Precinct. The state-created danger doctrine permits recovery only for state-created harm to bodily integrity and autonomy, and not for lost profits or other forms of economic loss. Because the Businesses claimed only economic loss, the district court properly dismissed this claim. The panel also affirmed the district court’s dismissal of the Takings Clause claims. The cessation of police services in Capitol Hill did not result in either a per se or right-of- access taking under the Fifth Amendment, where the Businesses did not allege any affirmative government invasion of their own property or assert an interest that is protected under state law. Although the Constitution did not provide a federal remedy for the Businesses’ harm, the panel held that they may have a surviving claim under state tort law. While the district court appropriately found that the Businesses failed to timely file their nuisance claims within two years, the district court should have permitted the Businesses to argue for equitable tolling under the principles of American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), which the panel held are available under Washington state law. The panel therefore reversed the district court’s dismissal of the nuisance claims and remanded for further proceedings. 4 3PAK LLC V. CITY OF SEATTLE COUNSEL Angelo J. Calfo (argued) and Tyler S.