Fifth Amendment: Grand juries, double jeopardy, self-incrimination, due process and takings

The Fifth Amendment packs five rules into one sentence. Three are about criminal cases (grand jury, double jeopardy, self-incrimination). One is the federal Due Process Clause. The last, the Takings Clause, is the one a city deals with constantly: every time Williams takes land for a road, conditions a building permit on a dedication or fee, or regulates land use so heavily that property loses its value.

The text

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Source: National Archives transcription Verified1

Clause by clause

Grand jury

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" Verified1. A grand jury is a group of citizens who decide whether there's enough evidence to charge someone. It's required in federal felony cases. In Hurtado v. California (1884), the Court held California could charge a murder by a prosecutor's "information" after a preliminary hearing, without a grand jury (Hurtado v. California, 110 U.S. 516 (1884)) Verified2. That's still the law. California's own constitution says "Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information" (Art. I, §14) Verified3.

California still requires that "One or more grand juries shall be drawn and summoned at least once a year in each county" (Art. I, §23) Verified3. That's a state rule, not a Fifth Amendment requirement.

Double jeopardy

"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb" Verified1. No second prosecution after acquittal or conviction for the same offense, and no multiple punishments for it. The Court applied it to the states because it "represents a fundamental ideal in our constitutional heritage" (Benton v. Maryland, 395 U.S. 784 (1969)) Verified4. Under the dual-sovereignty doctrine, two offenses "are not the 'same offence'" if "prosecuted by different sovereigns," so the federal government and a state can each prosecute the same conduct (Gamble v. United States, 587 U.S. 678 (2019)) Verified5. A city isn't a separate sovereign from its state. In Waller v. Florida (1970), a man was convicted in municipal court and then tried by the state for the same acts. The Court said that in this context "a 'dual sovereignty' theory is an anachronism, and the second trial constituted double jeopardy" (Waller v. Florida, 397 U.S. 387 (1970)) Verified6. So a Williams ordinance prosecution and a California prosecution for the same offense can't both proceed.

Self-incrimination

No person "shall be compelled in any criminal case to be a witness against himself." Applied to the states in Malloy v. Hogan (1964), which overruled earlier cases holding the privilege wasn't "safeguarded against state action by the Fourteenth Amendment" (Malloy v. Hogan, 378 U.S. 1 (1964)) Verified7.

Miranda. "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed" (Miranda v. Arizona, 384 U.S. 436 (1966)) Verified8. The warnings apply to custodial interrogation by police, not to every conversation.

Public employees. Police officers threatened with firing if they didn't answer questions faced "a choice between the rock and the whirlpool," and their statements were coerced and couldn't be used to prosecute them (Garrity v. New Jersey, 385 U.S. 493 (1967)) Verified9. That's why city internal investigations give "Garrity" advisements.

Civil settings. The privilege can be claimed in civil or administrative proceedings where answers could be used in a criminal case. Our reading: a resident facing a code violation that could be charged as a misdemeanor (as many Williams code violations can, under Gov. Code §36900 Verified10) can decline to answer incriminating questions.

Due process

No person shall "be deprived of life, liberty, or property, without due process of law." This version binds the federal government. Its twin in the Fourteenth Amendment binds states and cities and is where most local due process law comes from.

Equal protection against the federal government. The Fifth has no equal protection clause, but the Court reads one into its due process clause. In Bolling v. Sharpe (1954), decided with Brown v. Board, children challenged segregation in D.C. schools, alleging it "deprives them of due process of law under the Fifth Amendment," and the Court agreed (Bolling v. Sharpe, 347 U.S. 497 (1954)) Verified11.

Takings Clause

"Nor shall private property be taken for public use, without just compensation" Verified1.

It binds cities. The first Bill of Rights guarantee applied to the states was just compensation, in Chicago, Burlington & Quincy Railroad v. Chicago (1897) (Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226 (1897)) Verified12.

"Public use." In Kelo v. New London (2005), the Court upheld a city's taking of homes for an economic development plan, given the plan's "comprehensive character" and "thorough deliberation" (Kelo v. City of New London, 545 U.S. 469 (2005)) Verified13. California responded: under Article I, §19(b), state and local governments "are prohibited from acquiring by eminent domain an owner-occupied residence for the purpose of conveying it to a private person," with exceptions for health and safety, crime, emergencies, contamination and public works Verified3.

Physical takings. A "permanent physical occupation of real property" is a taking "without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner" (Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)) Verified14. A temporary one counts too: "a physical appropriation is a taking whether it is permanent or temporary" (Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021)) Verified15. Cedar Point struck down a California regulation giving union organizers access to farms.

Regulatory takings. "While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking" (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)) Verified16. Two tests:

• Total wipeout. A regulation eliminating "all economically beneficial use" is a taking unless it only restates background principles of nuisance and property law (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)) Verified17.
• Everything else: Penn Central. Courts weigh "the economic impact of the regulation on the claimant," "the extent to which the regulation has interfered with distinct investment-backed expectations," and "the character of the governmental action" (Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)) Verified18. Most zoning survives this test. Zoning itself was upheld as a valid use of the police power in Euclid v. Ambler (1926) (Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)) Verified19.

Exactions: permit conditions. When a city conditions a permit on giving up property or money, the condition must have:

1. An "essential nexus" to a legitimate purpose the city could use to deny the permit (Nollan v. California Coastal Commission, 483 U.S. 825 (1987)) Verified20. Nollan was a California Coastal Commission case.
2. "Rough proportionality." "No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact" (Dolan v. City of Tigard, 512 U.S. 374 (1994)) Verified21.

These rules apply to money demands, and even when the permit is denied: a government's "demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit" (Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013)) Verified22. And in a California case from El Dorado County, the Court held in 2024 that "the Takings Clause does not distinguish between legislative and administrative land-use permit conditions" (Sheetz v. County of El Dorado, 601 U.S. 267 (2024)) Verified23. A traffic impact fee adopted by ordinance for all projects is still tested.

Tax foreclosure surplus. When a county sold a home for unpaid taxes and kept the surplus, the Court held it "could not use the tax debt to confiscate more property than was due" (Tyler v. Hennepin County, 598 U.S. 631 (2023)) Verified24.

Going to federal court. A property owner "may bring a Fifth Amendment claim under §1983" as soon as the government takes property without paying, without first suing in state court (Knick v. Township of Scott, 588 U.S. 180 (2019)) Verified25.

How it reaches Williams

California's version

• Article I, §15 covers double jeopardy, self-incrimination and due process in criminal cases Verified3.
• Article I, §7 has California's own due process and equal protection guarantees Verified3.
• Article I, §19 is broader than the federal clause in one important word: property may be "taken or damaged" only with just compensation, "ascertained by a jury unless waived," which must be "first ... paid" Verified3. See California Article I: property.

In Williams

• Development fees. Any Williams impact fee or dedication must meet Nollan/Dolan, legislated or not Verified23. California's Mitigation Fee Act adds procedure: when imposing a fee on a development project, a local agency must "identify the purpose of the fee" and the use of the money and show a reasonable relationship (Gov. Code §66001) Verified26.
• Road widening or utility easements. Taking a strip of land needs just compensation Verified12,14.
• Abatement. Destroying property that's a genuine nuisance isn't a taking (Lucas's nuisance exception) Verified17, but the city must still give due process (Fourteenth Amendment).
• Interviews about violations. If a code violation can be charged as a crime, the privilege against self-incrimination applies Verified10.

Common misconceptions

• "Every state must use grand juries." Hurtado says no Verified2.
• "Fees set by ordinance escape takings review." Sheetz rejected that Verified23.
• "Only physical seizures are takings." Regulations that go "too far" count Verified16.
• "Kelo lets California cities take homes for private developers." California's Article I, §19(b) restricts that Verified3.
• "Miranda applies whenever police talk to you." Only to custodial interrogation Verified8.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.