Armendariz

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.

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.

I

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…

concurring and dissenting:

I agree with the majority except for part IV; there we part company because I conclude that the City officials’ (City) sweeps in Arden-Guthrie, as a matter of law, did not violate the Equal Protection Clause.

It has been settled for decades that unless the government’s actions affect a fundamental right or employ suspect classifications such as race or religion, there is no denial of equal protection unless the challenged classification cannot be said to be rationally related to a legitimate state interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 , 105 S.Ct. 3249, 3257 , 87 L.Ed.2d 313 (1985) (Cleburne) (government action that burdens individuals unequally but does not burden “suspect class” need only survive rational basis review). Clearly there is no fundamental right to be a landlord in a slum. Nor is there any allegation that the City targeted the landlords in Arden-Guthrie on *1329 the basis of any suspect classification. Thus, the landlords can state an equal protection claim only if the City’s decisions to treat them differently has no conceivable relationship to any legitimate state interest.

The Supreme Court has…

concurring in part and dissenting in part:

I concur in all portions of Judge Fletcher’s opinion except the analysis of the Takings Clause in Part III.A.2 and 3.

I cannot agree with the majority that the enforcement of housing codes can result in a claim of -a taking for non-public use. The Supreme Court has made it abundantly clear that the “public use” requirement is coterminous with the scope of a sovereign’s police power, and that where a taking is “rationally related to a conceivable public purpose” the taking is not proscribed by the Public Use Clause. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 , 104 S.Ct. 2321, 2329 , 81 L.Ed.2d 186 (1984); Berman v. Parker, 348 U.S. 26 , 75 S.Ct. 98 , 99 L.Ed. 27 (1954) (upholding legislation providing for taking of slum areas for possible sale or lease to private interests). Enforcing housing codes is rationally related to a public purpose. We should not let the Takings Clause become a device for litigating the wisdom or motivations behind municipal law enforcement.

concurring in part and concurring in the judgment:

I concur in all but the Fifth Amendment analysis in Parts III.A.2 and 3 of the court’s opinion.

Identification of a possible Fourth Amendment claim suffices to encompass plaintiffs’ grievances within the ambit of Albright’s limitation on Substantive Due Process claims. Albright v. Oliver, — U.S.-,-, 114 S.Ct. 807, 813 , 127 L.Ed.2d 114 (1994).

It is not necessary to analyze any Takings claims which may be available to plaintiffs.