Government abuse

Massacre at Flowertown

2.5 million dead bees, and an unlikely test of public health powers.

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Mitch Yawn knew something was wrong long before he got to the hives.

"I got a phone call. I was at work—working on an air conditioner. And she was—oh my God, she was just devastated," he says.

"She" was Juanita Mae Stan-ley, Yawn's then-fiancée and co-owner of the Flowertown Bee Farm in Dorchester County, South Carolina. Yawn and Stanley had started the farm a year earlier, with the goal of raising bees to sell to honey makers and hobbyists across the South. So far, they had 46 hives—a modest size, as bee farms go. That means Stanley and Yawn owned somewhere around 2.5 million bees.

On this muggy morning in August 2016, most of them were dead.

It was a firefighter who noticed the dead bees first. Piles of them littered the ground near the firehouse, not far from the meadow near the small lake where Yawn and Stanley had established their apiary. He called Stanley, who called Yawn after seeing the carnage.

"There were just dead bees everywhere," Yawn recalls. "They were sweeping them up by the panful."

The bees were dead because, according to court documents, the head of the county's Mosquito Abatement Division, Clayton "Scott" Gaskins, had ordered a plane to spray deadly insecticides over portions of the county. Gaskins in turn had been directed by the state Department of Health and Environmental Control (DHEC), which had ordered the use of insecticides to target mosquitos that could be carrying the Zika virus, and by the Dorchester County Council, which had ordered the aerial spraying after Gaskins reported that trucks and ground-based crews could not access some of the DHEC's target areas.

The spray killed the bees, and with them Yawn and Stanley's nascent business.

It's a pattern that is now familiar to all too many Americans: To stop the spread of a potentially deadly disease, government officials took sweeping actions that had direct and devastating consequences for small business owners.

When the couple demanded compensation from the county for the losses, the courts rejected their suit. The legal justification? The "police power" doctrine, which enjoys decades of judicial precedent.

Over the last hundred-odd years, police powers have been cited to justify intrusive state-based vaccination requirements and invoked to shield local governments from having to compensate homeowners whose property was destroyed by SWAT teams or flooded by the Army Corps of Engineers. In short, the doctrine gives states and localities vast authority to act in the name of public health, regardless of the consequences.

At the moment it happened, the killing of millions of bees at the Flowertown Bee Farm had nothing to do with COVID-19, which was still years away. But those same police powers provided the legal justification for lockdown orders imposed during the pandemic, including the closing of restaurants, stores, and other "nonessential" businesses for arbitrary lengths of time. Police powers are the reason the Flowertown bees died, the reason their owners have yet to receive any recompense, and the reason those whose businesses and livelihoods were harmed by COVID-19 restrictions are currently unlikely to be compensated via the legal system.

Yawn and Stanley's legal battle has dragged on for years, and it may well fail. But it also may already have opened a way forward for property owners injured by the exercise of police powers. Contained within one of the rulings in the Flowertown case is a reason to hope that courts will finally start offering greater scrutiny when governments abuse private property rights in pursuit of the so-called public good.

The Smell of Death

It's hard to believe it happened more than five years ago, Yawn says.

"One of the things that I remember the most about [the bee farm] is that if you walked into that area, it would smell so fresh and clean. It had a different sort of atmosphere, you know? It was buzzing and alive," he says. "The bees would just be zipping around. I don't really have the words for it. All these bees were busy at work."

It was quite the opposite when he arrived on the scene after Stanley's phone call. A few days later, when the two beekeepers went down to the apiary to do the real clean-up—after some scientists from Clemson University arrived to take samples of the dead bees and soil—it was even worse. "There was the smell of death," he recalls. "Rancid. Horrible."

Massive honeybee die-offs are not unheard of. Colony Collapse Disorder (CCD) is a phenomenon in which worker bees will suddenly abandon a hive en masse, leaving a helpless queen behind to die. Beekeepers are familiar with this, even though scientists still aren't sure why it happens.

But the collapse of a bee colony ends up looking a lot like the mysterious disappearance of the human colony on Roanoke Island in nearby North Carolina: The bees mostly vanish without a trace. According to the Environmental Protection Agency, "sudden loss of a colony's worker bee population with very few dead bees found near the colony" is the best indicator of CCD.

What happened at the Flowertown Bee Farm, less than an hour inland from Charleston, was no mysterious disappearance. The Clemson review was inconclusive—despite the fact that investigators found "bees with behaviors consistent with pesticide exposure"—probably because samples weren't taken soon enough. Still, it didn't take long to identify the culprit.

"Dorchester County is aware that some beekeepers in the area that was sprayed on Sunday lost their beehives," County Administrator Jason Ward told local media outlets the day after Yawn and Stanley found their hives wiped out. "I am not pleased that so many bees were killed."

In the morning hours on Sunday, August 28, a plane had zig-zagged across Dorchester County to spray Naled, a common insecticide that kills adult mosquitoes on contact by paralyzing their respiratory systems. Though it can be dangerous to humans in high enough concentrations—and has been banned by the European Union since 2012—Naled breaks down quickly after being sprayed and is generally harmless to mammals and birds.

Unfortunately for Stanley and Yawn and their 2.5 million winged employees, Naled is highly toxic to bees. They weren't alone. "I just can't wrap my head around the idea that we spray poison from the sky," amateur beekeeper Andrew Macke told a local ABC affiliate a few days after the incident.

The aerial spraying was meant to stop the potential threat of the Zika virus, a blood-borne disease that can cause serious birth defects if transferred in vitro from mother to child. An outbreak of the disease in Latin America during 2015–16 raised alarm about transmission by mosquitoes within the United States, though the vast majority of Americans who were infected caught the virus while traveling abroad.

In response to the potential for a Zika outbreak, South Carolina's Department of Health and Environmental Control "urged local jurisdictions to bolster their mosquito control programs heading into the summer months." In Dorchester County, that responsibility fell to Gaskins. According to court documents, he had deployed two trucks to spray Naled but was concerned about potential mosquitos in parts of the county the trucks could not reach.

On Friday, August 26, county officials issued a press release announcing plans for aerial spraying of insecticides on Sunday morning. In court documents, attorneys for Dorchester County argued that Gaskins maintained a list of registered beekeepers and that he had made calls to them—not as a matter of policy, but as a courtesy—to warn of the upcoming aerial spray.

For reasons that remain unclear, Flowertown Bee Farm was not called, even though it was on the county's list. The pilot who conducted the aerial spray on August 28, an Air Force veteran now working as a contractor for Allen Aviation, was provided with maps showing areas to be sprayed and areas to be avoided—including the location of known beehives in the county. He told investigators that he did not knowingly spray Naled onto the bee farms.

To limit the potential threat of Naled to bee colonies, the federal Environmental Protection Agency recommends spraying the insecticide between dusk and dawn, when bees are mostly inside their hives. Sunrise in coastal South Carolina during the final week of August occurs around 7 a.m.  According to court documents, the spraying that occurred on August 28 took place between 6:30 and 8:30 in the morning.

In the end, a combination of a public health panic, an overly aggressive government response, poor timing, and a few other fateful mistakes along the way led to the deaths of Stanley and Yawn's bees. Accident or not, they wanted compensation for the loss of their property, which had upended their lives.

"We had put so much energy and so much work into these bees," Yawn says. "And in an instant, it was over."

Public Health Police Powers

The basic facts of the lawsuit were straightforward. Millions of bees that had belonged to Stanley and Yawn were dead. The bees died as a direct result of county officials' authorization of aerial spraying of deadly insecticide.

The two beekeepers wanted compensation under the Fifth Amendment's promise that the government cannot take property—or in this case, destroy it—without providing payment. It's the same principle that would have applied if Dorchester County officials had seized the bees in order to address a countywide honey shortage, or if the county had suddenly banned beekeeping, forcing Yawn and Stanley to shut down their business. (The couple also filed a separate lawsuit in state court seeking compensation under a part of the South Carolina Constitution that is similar to the federal Fifth Amendment.)

This is a well-established, fundamental principle of constitutional law. Yet the U.S. district court summarily dismissed the claim.

"It is undisputed that the spray was conducted to prevent the spread of disease, a matter that would affect public health," Judge Margaret B. Seymour wrote in the summary ruling. "Such an action fits squarely within the state's police power….Because [the county] was exercising its police power, and not its power of eminent domain, the Takings Clause is not implicated."

According to Jeff Redfern, an attorney with the Institute for Justice, a Virginia-based libertarian law firm that was not involved in the Yawn lawsuit, this is a mistaken understanding of how the police power—which doesn't necessarily have anything to do with cops—is supposed to work. Unfortunately, it's a mistake that courts seem to be making a lot.

The "police power" is legal shorthand for one part of the 10th Amendment, which delegates powers not enumerated in the U.S. Constitution to the states or to the people. In the 19th century, when the regulatory and public health powers of state and local government were significantly smaller than they are today, courts developed the police power doctrine to allow municipalities to exercise early forms of land-use regulations. For example, a town might want to limit where certain industrial activities took place in order to protect public health. Doing so may be "taking" in the strictest sense of the word, since land that could no longer be used for certain purposes might lose some value. But courts at the time determined this was separate from the already-established concept of eminent domain. Therefore, governments did not owe compensation for doing it.

Over the years, the police power was broadened considerably as state and local governments expanded their authority. Though it is rooted in the 10th Amendment, it didn't take its modern shape until the early 20th century, starting with the 1905 Supreme Court ruling Jacobson v. Massachusetts. In that case, the court upheld a state law that authorized municipalities to mandate smallpox vaccines for residents in response to an outbreak of the disease in and around Boston. It's a ruling that continues to resonate today as judges attempt to balance individual freedom and state power during the COVID-19 pandemic.

Out of the Jacobson ruling, a muddy four-part legal test emerged. If a public health intervention was necessary, was reasonable, was proportional, and avoided knowingly causing harm, it would be allowed under the state's police power. During the current pandemic, that power has been the basis for mask mandates, forced business closures, and other measures.

"In the early 20th century, as the scope of regulation started to accelerate, the Supreme Court finally recognized that some regulations of private use of property could be considered takings if they go 'too far,'" Redfern says. But figuring out what exactly counts as too far has been a problem because the Supreme Court's four-part test is so vague.

As a result, courts have effectively decided that governments have to pay compensation for eminent domain takings but that they can often escape liability, even when their direct actions result in the destruction of property, as long as they can point to some public health purpose.

When a SWAT team destroyed a man's home in the Denver suburbs while pursuing a suspected shoplifter in 2015—at one point cops drove a BearCat armored vehicle through an outer wall; the damage was so severe that the $580,000 home had to be torn down and rebuilt—the city offered to pay $5,000 toward the repair costs. When John Lech, the homeowner, sued for more compensation, the city claimed its police powers shielded it from liability. Federal courts agreed, and the U.S. Supreme Court in 2020 refused to hear the case.

Redfern, who represented Lech during the appeals process in that case, says courts' expansive understanding of the police power doctrine means that "in practice, most local governments simply assume that they have the authority to do just about anything that they consider to be in the public's interest." What Dorchester County was trying to do—indeed, what it succeeded in actually doing in the eyes of the U.S. district court—was to use the police power as a get-out-of-liability-free card.

And that, in turn, has implications not only for bee owners in South Carolina but for business owners across the country who suffered losses due to lockdown and shutdown policies put in place during the current pandemic.

According to data released in April 2021 by the Federal Reserve, approximately 200,000 more American businesses closed during the first year of the COVID-19 pandemic than in a typical year. Small businesses that rely on in-person interactions—barber shops, nail salons, and restaurants—were unsurprisingly the hardest hit. While some of those businesses may have shut down due to shifting consumer behavior during the pandemic, it's impossible to ignore the role played by government-mandated lockdowns, particularly during the first half of 2020. Even businesses that remained open could have been negatively impacted by public health rules that banned, for example, indoor dining or gatherings of large groups.

Do those business owners have grounds to sue, as Yawn and Stanley did, over the damage caused by an aggressive governmental response to a perceived public health threat? It's a question the courts may have to grapple with as the pandemic recedes, but the legal path forward will be fraught. 

In an ideal world, at least some of the burdens of COVID shutdowns should be compensable under the Constitution's Takings Clause, says Ilya Somin, a professor of law at George Mason University. Unfortunately, decades of precedent establish the police power as exempt from takings claims.

Specifically, Somin points to Miller v. Schoene, a 1928 case in which a unanimous Supreme Court found that the state of Virginia did not owe compensation to an arborist whose trees were ordered to be cut down in order to prevent the spread of a disease to a nearby apple orchard. It's a case that bears more than a passing resemblance to what happened in Dorchester County—and to what happened during the COVID pandemic. All three involve state action taken to curb the spread of disease resulting in the destruction of private property. In another key Supreme Court case dealing with the intersection of the police power and the Takings Clause, 1978's Penn Central Transportation Company v. New York City, and in subsequent cases relying on that precedent, the court held that "temporary" restrictions on economic activity do not automatically qualify as takings.

The reigning view about how police powers interact with takings is "a mess" that desperately needs to be "replaced by something clearer and more protective of property owners' rights," Somin says. Though there might be a strong moral argument for compensating business owners negatively affected by COVID-19 lockdowns, he thinks it's "unlikely to change in the near future, except perhaps incrementally."

A Court Loss, and a Small Hope

When Yawn and Stanley appealed their case, they may have nudged that incremental change along—even though they still lost.

"There is no police power exception written into the Constitution," says J. David Breemer, an attorney with the Pacific Legal Foundation and the beekeepers' lead counsel when they went before the U.S. Court of Appeals for the 4th Circuit. "It matters tremendously, because almost everything local and state governments do when it comes to the regulating of private property is some form of the police power. So if the government is immune from the Takings Clause when it exercises its police powers, it can immunize itself from challenges just by saying 'this was for public health'—and that's never been the intent of the law."

In June, a three-judge panel at the 4th Circuit finished its review of Yawn and Stanley's lawsuit. It upheld the lower court's decision, ruling that the beekeepers were not due compensation because their bees were merely "collateral dam-age" in Dorchester County's anti-Zika public health strategy.

But the ruling also delivered an important twist.

"That government actions taken pursuant to the police power are not per se exempt from the Takings Clause is axiomatic," wrote Judge Stephanie Thacker. She pointed to a 2002 Supreme Court ruling in which then-Justice John Paul Stevens wrote that "the temptation to adopt per se rules in either direction must be resisted" in takings cases. In other words, courts should not allow police powers to serve as a blanket liability shield for governments.

Even so, Thacker ruled against Stanley and Yawn. To get there, she relied on a set of federal court precedents establishing that governments do not have to pay compensation for incidental harms incurred via the exercise of police powers. (Recall that the fourth part of the four-part test created by the Jacobson ruling has to do with "knowingly causing harm.") "The death of Appellants' bees was plainly unintentional," she wrote. "The death of Appellants' bees is undoubtedly a tragedy, but we cannot conclude that it was the foreseeable or probable result of the County's action when it is a clear outlier in terms of collateral damage arising out of the County's mosquito abatement effort."

This is a perhaps unsatisfying but nonetheless important distinction. It allows governments to escape liability for accidents but gives judges discretion to determine whether the loss of private property was a deliberate or foreseeable result of a public health action. It also rejects the notion that police powers are unlimited. 

The acknowledgement that police powers are not categorically exempt from Takings Clause claims, Breemer says, means that property owners are more likely to get a chance to defend their claims on the merits, rather than having them summarily dismissed. "If you destroy property, you still have to answer to the Constitution," he says. "That doesn't mean you're necessarily going to have to pay when you destroy property in pursuit of public health, but you might have to."

The nature of the American legal system means that change comes slowly when it comes at all. Decades of precedent built upon a faulty understanding or a false dichotomy will not be torn down with a single case. Reformers must pile up new precedents, and even a single line in a losing ruling can create opportunities for a different result in another courtroom on another day.

It might already be having that effect. In Texas, Redfern is now arguing another case in which SWAT officers destroyed a home while pursuing a suspect—this time by using explosives to blast a hole in the home, even after the homeowner handed over keys to the police when they arrived. In court documents, he points to the 4th Circuit's ruling in Yawn v. Dorchester County as a reason the judge should not simply dismiss the compensation claim on police powers grounds. "Any clarification" in how courts balance takings claims and the police power, he says, "would necessarily be good for property rights, because at present, the test (as it's usually applied) could hardly be worse."

In November, a federal judge rejected an attempt by the city of McKinney, Texas, to get the SWAT lawsuit dismissed by invoking the police power. Because the plaintiff "plausibly alleged the City's destruction of her home resulting from the exercise of its police power could amount to a taking, the Court continues its takings analysis," Judge Amos Mazzant wrote. The decision allows the case to proceed to a phase in which the merits can be considered.

This is a bigger deal than it might appear. The first step in forcing governments to pay compensation for abuses of the police power is to get courts to stop treating police powers as a categorical liability shield.

The effort will continue in the courts, but state lawmakers and governors can get involved too. One possible solution to the expansion of police powers and the associated erosion of property rights is to pass laws requiring governments to pay compensation under more circumstances. Redfern points to an effort in Colorado that culminated in a proposed amendment to the state constitution in 2018. Amendment 74 would have required "the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property."

That particular proposal was a response to a different Colorado law that banned oil and gas drilling in wide swaths of the state, thus lowering property values in those areas. But enacting such an amendment might signal to courts that they should prioritize takings claims over competing claims like police powers.

It's too bad we won't get to find out how the Colorado amendment would shift the legal ground. Voters in the state defeated the proposal at the polls; unsurprisingly, much of the opposition came from local governments.

But more opportunities are coming. The COVID-19 pandemic represents maybe the biggest test ever for the limits of local and state police powers. Restaurants, movie theaters, churches, and a host of other places where people gather in large groups were forced to close or operate at partial capacity. That might seem less dramatic than a SWAT team blowing holes in someone's home or the deaths of millions of bees, but the situations are similar in important respects. All involve governments seeking to protect public health or safety by imposing huge costs on private individuals.

The state supreme courts in New Mexico and Pennsylvania have already heard cases challenging COVID-19 restrictions as violations of the Takings Clause. In both instances, the courts rejected those challenges on the grounds that governments may invoke police powers to respond to a public health crisis.

As the recent SWAT case out of Texas shows, the ruling in Yawn did not throw open the door to judges compensating the victims of COVID-19 lockdowns. But it might have helped pry the door slightly ajar.

"Yawn indicates that it is improper," Breemer says, for courts to immediately dismiss takings claims just because the government invokes the police power. "It indicates that courts must actually look at the totality of the closure situation, including harm to the property owner, not just to the government's desire to put out a health crisis, when deciding if there is a constitutional infraction."

Love and Bees

It's been more than five years since death rained down on the Flowertown Bee Farm.

Yawn and Stanley never fully rebuilt their operation. Today, they sell beekeeping equipment to professionals and hobbyists in order to make ends meet. They never got back into the business of breeding bees and building out hives—it was too much work, knowing it could all be wiped out so quickly. But amid their legal drama, the two bee lovers did find time to get married.

After the controversy created by the incident that accidentally killed the Flowertown bees, Dorchester County changed its approach to notifying beekeepers of future aerial sprays. The new policy? No notification at all. Since May 2019, the onus has been on beekeepers themselves to keep an eye on the county's website and notify one another in an ad hoc manner.

Naled is still used in South Carolina, but it has become controversial in other places. Amid protests over widespread use of the insecticide by the Centers for Disease Control and Prevention (CDC) in Puerto Rico in 2016, then-Gov. Alejandro Javier Garcia Padilla banned aerial sprays of Naled. Its use in Miami during the Zika outbreak was also met with protests. But in both places, the insecticide was credited by public health officials with helping to prevent the virus's further spread.

And what of the Zika virus? In light of the COVID-19 pandemic, the panic over Zika now seems even more overblown. In 2016, the CDC reported 5,168 cases of Zika in the United States. The vast majority of those—4,897 of them, to be precise—were identified in travelers returning from affected areas in other countries where the disease was more common. Just 224 cases were acquired via local mosquito-borne transmission, according to the CDC. Of those, not a single one was in South Carolina.

The lack of mosquito-borne outbreaks in the Palmetto State doesn't disprove the necessity of soaking Dorchester County in Naled sprayed from airplanes, of course. Perhaps it was the aggressive approach taken by local governments that kept the disease at bay. And attacking mosquitos with insecticides can have unrelated benefits for human beings, by limiting the spread of other deadly diseases that the pesky bugs can carry.

But beyond the narrow and somewhat esoteric legal questions, there are broader moral and ethical ones. It's difficult to come away from Stanley and Yawn's case with any sense that justice has been done. They lost their federal appeal, and lawyers involved in the case say the 4th Circuit's ruling does not leave an avenue for appeal to the Supreme Court.

The couple's lawsuit in state court continues. Yawn says he holds out hope for some compensation from the government, eventually. But he's no longer expecting it.

The police power was supposed to be a tool for allowing governments to protect public health, but the Supreme Court has warned for decades about the potential for a slippery slope. "If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power," Supreme Court Justice Oliver Wendell Holmes wrote in 1922, "the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared."

Today, the police power seems to have become a tool for excusing governmental failure—or justifying governmental expansion. Even members of the Supreme Court itself are guilty of this confusion, as evidenced by remarks from Justice Sonia Sotomayor during recent oral arguments. While questioning Ohio's solicitor general over the merits of having the federal Occupational Safety and Health Administration enforce the Biden administration's vaccine mandate—a clear exercise of the police power—Sotomayor said she did not "understand the distinction why the states would have the power [to enforce the mandate] but the federal government wouldn't."

This answer is also axiomatic: The 10th Amendment reserves to the states all powers not explicitly granted to the federal government, and a long history of court cases has shown police powers to be the exclusive purview of states (and entities created by the states, such as municipalities and counties).

The Yawn case lays out the failures that can occur when an expansive view of the police powers is embraced by government officials. In South Carolina, those failures occurred at multiple levels. The aerial spraying was an unnecessary response to an ill-defined public health threat. The procedures that were meant to limit the unintended consequences were not followed. And thanks to decades of court precedents that never adjusted in light of the growing scope of the police power (and the destruction that can occur when the government's conception of public safety runs up against private property rights), the legal system failed to make injured parties whole.

The police power grants broad authority to state and local officials, then asks little of them when those powers are used to harm their constituents. There's no good reason for courts to grant government officials mulligans in circumstances when private citizens would be held to account.

Too often, local and state officials view public health issues as a blank check to exercise careless and destructive authority with minimal risk of legal backlash. Instead, they should recognize the importance of laws that temper their impulses. Any system that relies entirely on the discretion and good judgment of human beings possessing unchecked authority is bound to fail.

Not long after he'd finished telling me his story, Yawn sent me a text. "When we hung up, I went to speak to [Stanley]. She had tears in her eyes," he wrote. "Even after five years it still breaks her heart."