“Plaintiffs have not offered any argumentation as to why Defendants are not entitled to qualified immunity,” Judge Eric L. Clay wrote on behalf of the panel. “Nor do they direct the Court to any caselaw indicating that Defendants’ various orders violated a clearly established constitutional right. And for good reason: there is no clearly established precedent that pandemic-era regulations limiting the use of individuals’ commercial properties can constitute a Fifth Amendment taking. In fact, the overwhelming majority of caselaw indicates that such regulations are not takings.”


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