First English--Is it good for government to be cautious when approaching violations of the Bill of Rights?

In his dissent on page 819, Justice Stevens complains that the Court's ruling, requiring Just Compensation for "temporary takings," might lead "cautious local officials and land-use planners" from going forward with regulations that might constitute takings. As he puts it in a part of his dissenting opinion edited from the casebook, the "availability of the damages remedy will induce land-use planning officials to stay well back of the invisible line that they dare not cross."

Is this a bad thing? In a free society, do we want public officials to boldly approach lines designed to protect fundamental constitutional rights from being tread upon by government?

Or is "caution" and respect for constitutional rights good things to encourage in agents of the state? Do we want government to boldly approach the lines protecting our freedom of speech and freedom from unreasonable searches and seizures? Or do we want government to respect the lines the Constitution draws protecting our constitutional rights?

But now the practical point: Suppose you are serving as a City Attorney and you are asked to advise your client, the city, as to the practical significance of First English.  Suppose you are considering a regulatory scheme that is pretty ambitious – it may be a taking, but then again it may not be a taking. Subjective, ad hoc tests do not provide much guidance.  How does First English affect your advice?


Suppose that in a future landmark-preservation case like Penn Central (but maybe with a little more extreme loss of value or with new Justices who might be more friendly toward property rights) the Court decides that the landmark restrictions went "too far" as applied to the Pl's property and thus constitute a regulatory taking. What options are available to the government? See casebook p. 818: "Once a court determines that a taking has occurred, the government retains the whole range of options already available--amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain."

Suppose the government decides to release the Pl's property from the landmark restrictions. The Court in First English holds that "no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Id.

What would be the Pl's damages, in a case like Penn Central, for a "temporary" deprivation, perhaps for a period of 5-10 years while the case was being litigated, of the right to profitably develop its property? Notice in Penn Central the lost rentals amounted to $1-3 million (in 1978 dollars) per annum. The damages might be 10 times that today. Plus, perhaps, attorneys' fees!

Does this explain the apoplexy of Justice Stevens?

But, of course, these damages must be suffered by someone, either by the Pl or the government. When the government acts unconstitutionally, who should bear the damages--the victim or the perpetrator of the unconstitutional wrong?