The Volokh Conspiracy
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On November 18, a federal district court issued a ruling indicating that the Takings Clause of the Fifth Amendment may require the government to pay compensation in a case where a police SWAT team destroyed an innocent person's home in the process of pursuing a criminal suspect. As Judge Amos Mazzant recognizes in his opinion in Baker v. McKinney, this ruling is at odds with decisions in similar cases by some other federal courts, which hold that there cannot be takings liability in such cases because of the "police power" exception to the Takings Clause. The issue here is an extremely important one, one on which existing jurisprudence is far from a model of clarity. As the case goes forward, it might end up setting a significant precedent.
Reason's Bill Binion has a helpful summary of the disturbing facts of the case:
In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker's home in McKinney, Texas. Baker's daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.
SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker's fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through….
"In its pursuit of the fugitive and pursuant to its police powers, Baker alleges the City caused significant economic damage—over $50,000—to her home. Then, the City refused to compensate her for the damage," writes Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas…..
Baker will likely still have to overcome an appeal from the city. But if her suit meets a more fortunate fate, she may recuperate some of the financial costs incurred as she battles stage 3 cancer and tries to leave the state for retirement. Yet some things will not be replaceable. An antique doll collection was damaged by tear gas, for example. Worse yet, her daughter's dog was left deaf and blind.
"I've lost everything," Baker told Reason last March. "I've lost my chance to sell my house. I've lost my chance to retire without fear of how I'm going to make my regular bills."
Some of these aggressive tactics may have been understandable, given that Little was holding a 15-year-old girl against her will, and that he was believed to be armed. But, as Judge Mazzant recounts in his ruling, by the time the SWAT team "forcefully entered
the home by breaking down both the front and garage door and running over the backyard fence with a tank-like vehicle known as a BearCat," Little had already released the girl unharmed. When the police entered the house, they found he had taken his own life.
The Fifth Amendment says the government must pay "just compensation" whenever it takes private property for public use. Courts have long held that deliberate destruction of private property by government officials counts as a taking. As far back as 1872, the Supreme Court ruled that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." You don't have to be a takings scholar to see that Vicki Baker's house was "effectually destroy[ed] or impair[ed] [in] its usefulness," and that the police deliberately caused the damage.
However, courts have also long held that at least some exercises of the "police power" (government's authority to protect public health and safety) are exempt from takings liability. In the 2019 case of Lech v. Jackson, the US Court of Appeals for the Tenth Circuit used the police power theory to deny takings liability in a situation remarkably similar to this one. There, too, the police essentially destroyed an innocent family's house in the process of trying to apprehend a suspect (in that instance, a suspected shoplifter).
Judge Mazzant's opinion suggests - correctly, in my view - that the reasoning of Lech is wrong, and that it isn't binding on his court (which is in the Fifth Circuit, not the Tenth):
The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances. See Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App'x. 711; AmeriSource Corp., 525 F.3d 1149.
However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking. In John Corp. v. City of Houston, the Fifth Circuit asserted that "a distinction between the use of police powers and of eminent domain power . . . cannot carry the day" when assessing whether a taking has occurred. 214 F.3d at 578–79. Further "[t]he Supreme Court's entire 'regulatory takings' law is premised on the notion that a city's exercise of its police powers can go too far, and if it does, there has been a taking." Id.(citing Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). In Lucas v. S.C. Coastal Council, the Supreme Court opined that if "the uses of private property were subject to unbridled, uncompensated qualification under the police power, the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared." 505 U.S. 1003, 1014 (1992)….
The Court finds the Fifth Circuit and Supreme Court reasoning persuasive, particularly at this stage of litigation where it construes allegations in the light most favorable to Baker. At the motion to dismiss stage, it would be imprudent to foreclose Baker's ability to recover based on the shaky reasoning recited in non-binding cases from other circuits—especially when both the Fifth Circuit and the Supreme Court have alluded that a taking could result from destructive police power. Because Baker has 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….
While the Court acknowledges that governmental bodies are not "liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]" Nat'l Bd. of Young Men's Christian Ass'ns v. United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City's refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.
I think Judge Mazzant is absolutely right that the police power does not create a blank-check exemption from takings liability. Nor is there a blank check for law-enforcement operations specifically. I outlined some of the reasons why in my critique of the Lech decision and in an amicus brief in which the Cato Institute and I unsuccessfully urged the Supreme Court to review and overrule Lech. Among other things, I pointed out that the Takings Clause was enacted in the first place in part as a reaction against the depredations of British troops during the colonial era and Revolutionary War. Many of these seizures and occupations of property were, of course, undertaken for the purpose of enforcing various British laws against recalcitrant colonists.
More recently, in December 2019, the Court of Federal Claims ruled that the police power exception does not foreclose takings liability in a case where the Army Corps of Engineers deliberately flooded large parts of Houston in order to prevent potentially worse flooding elsewhere during Hurricane Harvey in 2017.
Judge Mazzant's ruling doesn't definitively resolve the case. It merely rejects the City's motion to dismiss, allowing Baker to move forward with her claim. The decision also doesn't establish a clear standard for when destructive law-enforcement operations qualify as takings. For the moment, the court only rejects the theory (endorsed in cases like Lech) that such operations enjoy a virtually categorical exemption.
Even this preliminary ruling is likely to be appealed. Thus, this ruling is just the beginning of what may be a prolonged legal battle. But it's a legal battle that bears watching. The status of the police power exemption to takings is a major issue for a wide range of government policies, including deliberate flooding of private land (as in the Houston case), Covid-19 shutdowns, and (as in this case) law enforcement operations.
Finally, it's worth noting that, regardless of the legal issues, a just government would accept that it has a moral obligation to pay compensation in cases like this one. After all, its agents have deliberately inflicted enormous harm on an innocent homeowner. Even if they do so for a good purpose (catching a dangerous criminal), basic justice and fairness demand that the cost be borne by the general public who benefit from his capture, not arbitrarily concentrated on one person, who did no wrong.
Sadly, however, governments are often blind to the demands of justice. That's one of the reasons why we need constitutional rights.
NOTE: The plaintiff in this case is represented by the Institute for Justice, a public interest law firm with which I have longstanding connections, including working there as a summer clerk when I was in law school, and writing multiple pro bono amicus briefs on their behalf. I do not, however, have any involvement in the present case. IJ has issued a statement on Judge Mazzant's ruling, available here.