Bruce’s Beach was established in 1912 in Manhattan Beach; a decade and a half later, the city took the land claiming it planned to turn it into a park. But the more vague the limits of governmental power, the easier it is to wield that power for malicious purposes. And the boundaries of eminent domain are really vague.
The fact that the city had no interest in building a park soon became apparent. Nothing was done with the property until 1927 when the buildings were demolished. Then the land sat until the 1940s when it was deeded to the State of California, which eventually returned it to Los Angeles County. Last year, the county agreed to return the property to the Bruce heirs, which – with the dismissal of lawsuits challenging the transfer – has now been accomplished.
None of this would have been necessary if the courts had first looked more closely at the sentencing process. But judges didn’t do it then and they don’t do it now. All it takes is a public purpose that the court does not consider a pretext.
But proving a pretext is almost impossible.
Examples abound of eminent estate takings that are said to be racially motivated. Historian NDB Connolly tells us how, in 1947, the Miami City Commission “took twelve hours…to turn a community of fifty-year-old black landowners into condemned land for a park, a school, and a barracks for “whites only” firefighters. .” Or consider the case of East Arlington, Va., a thriving black community founded by runaway slaves.During World War II, the entire neighborhood was taken over by eminent domain to build… well, the Pentagon.
I am aware that there is considerable debate about whether the data shows that eminent domain power is exercised disproportionately to the detriment of racial minorities, and I confess that I have long been in the camp who prefers to build a policy on hard numbers rather than excitement and anecdotes. But in the particular case of eminent domain, the relative laxity of judicial review creates a space where subterfuge can easily hide.
As happened, for example, in the case of Bruce’s Beach, where the record is crystal clear.
News reports insist the story was discovered recently, but the Bruce’s Beach robbery has fascinated historians at least since the 1950s. In 1912, shortly after Charles and Willa(1) Bruce purchased the land , the Los Angeles Times reported that “[t]The establishment of a small resort for negroes” had “created great agitation among the white landowners of neighboring lands”. Neighbors erected ‘no trespassing’ signs on a convenient path from the complex to the water. The Times warned ominously: “Caucasian landlords who have properties around the new resort lament the state of affairs, but will try to find a remedy, if Negroes try to stay.”
To which Ms Bruce replied: ‘I own this land and I will keep it.’
Encouraged by his example, other black families began buying land in Manhattan Beach and building summer homes. For more than a decade, black vacationers from as far away as Washington, DC and Honolulu have flocked to the resort. But what the black community saw as a seaside frolic, white residents saw as an “invasion.”
The city began sentencing proceedings on the Bruce property in 1924. The family hired attorneys and vowed to fight. As the litigation unfolded, there were several “mystery fires” on the property of black Manhattan Beach residents. After the 1926 arson of a much fancier black resort being built in Huntington Beach, the Bruces surrendered.
Which brings us back to eminent domain. Although judges are free to consider history when deciding whether a conviction is a pretext, recent cases make it clear that long-standing tales of oppression will play a minor role at best in the judicial calculus. In 2013, a federal court in Illinois ruled that evidence of past mistreatment of black residents was only relevant if those challenging eminent domain could show that what was happening to their community today “was motivated with the same discriminatory intent”. Last year, a federal court in Texas came to more or less the same conclusion.
Such results are perhaps unavoidable, given the state of eminent domain law. And perhaps race played no role in these and many other recent convictions.
The problem is that even when race is involved, the relatively low bar the government must overcome in an eminent domain case makes subterfuge relatively easy. Indeed, even by today’s standards, it’s hard to see how Charles and Willa Bruce could have demonstrated in court that Manhattan Beach acted with anything other than the purest intentions.
True, the neighboring white owners had sworn to get rid of their compound, but that was a decade earlier. True, many of those same white owners allowed white but not black foreigners on their own beaches, but the city had no racial bans at the time. (Those came later.) It’s true, as the Bruce’s attorney pointed out, that Manhattan Beach could have instead condemned any number of nearby white-owned plots, but the law on eminent domain does not require the government to show that there is no less burdensome alternative.
The city, for its part, could have pointed to the fact that many other Southern California municipalities that around the same time were actively condemning waterfront properties to create municipal parks. (Or in a few cases, oil terminals.)
Truth be told, under current eminent domain law, I doubt the Bruces would have had a chance.
And that’s a problem. If it takes a century to right such a great racial injustice, there is something wrong with the law. Over the past 15 years, all but a handful of states have restricted the use of eminent domains for economic development. But these reforms would not have helped the Bruces; their land was condemned for a park.
Somehow we need to make it harder to take private property. There have been many proposals for reform: Necessity. Least restrictive alternative. I don’t know which setting would be best. All I can say with certainty is that today’s casual attitude toward eminent domain would have done nothing to stop the racist theft from Bruce’s Beach.
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(1) Although his name is often given today as “Willa”, contemporary reports give “Willie”.
This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A law professor at Yale University, he is the author, most recently, of “Invisible: the story of the black lawyer who shot down America’s most powerful gangster”.
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