Armendariz

In 1991, the City of San Bernardino closed a number of low-income housing units in the Arden-Guthrie section of town pursuant to a series of housing code inspections, referred to in the trade as “sweeps”. Plaintiffs own or owned 95 four-unit apartment buildings in Arden-Guthrie, a substantial number of which were closed during the sweeps. They contend that 1) the purpose of the sweeps was to force (a) persons with criminal records and (b) gang members to relocate outside of the city of San Bernardino, 2) that pre-closure and post-closure procedures afforded in connection with the sweeps were deficient, and 3) that plaintiffs improperly were denied loans.

San Bernardino City Attorney James F. Penman, Mayor William R. Holcomb, and other city employees appeal the district court’s denial of their motions for summary judgment based on qualified immunity. We have jurisdiction of the timely appeal pursuant to the collateral order doctrine. Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir.1993). There have been no prior interlocutory appeals. Nelson v. Silverman, 999 F.2d 417 (9th Cir.1993).

With the exception of their procedural due process claims, the plaintiffs have…

concurring in part and dissenting in part:

I concur in the majority’s opinion, except for the conclusion that plaintiffs do not state a substantive due process claim against Penman and Reed. The majority contends that even if the emergency closures were designed to relocate criminals and reduce urban blight rather than to respond to dangerous housing code violations, and even if the defendants “faked” the emergency, the closures did not violate substantive due process because they “bore a sufficient relation to the general welfare.” In other words, because the government has a legitimate interest in reducing crime, it can pretextually use emergency powers granted by the housing code to serve that purpose.

With all respect to my colleagues, I don’t see how the law permits them to reach that result. To establish a substantive due process violation, plaintiffs must prove only that the government’s action was “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid v. *872 Ambler Realty Co., 272 U.S. 365, 395 , 47 S.Ct. 114, 121 , 71 L.Ed. 303 (1926); see Sinaloa Lake Owners Ass’n v. City of Simi…