Vicki Baker didn’t do anything wrong. She didn’t ask for or facilitate Wesley Little entering her house with a teenage girl, later released. She didn’t let him refuse to leave. She wasn’t even there. And yet, she, and she alone, will bear the cost of the police destroying her house, now that the Supreme Court has denied cert and allowed the Fifth Circuit’s ruling to stand.
The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” This case raises an important question that has divided the courts of appeals: whether the Takings Clause requires compensation when the government damages private property pursuant to its police power.
When Little remained in Baker’s house after releasing his hostage, the police decided to turn the house into a combat zone to deal with the situation.
To resolve the standoff and protect the surrounding community, the police tried to draw Little out by launching dozens of tear gas grenades into the home. When that did not work, the officers detonated explosives to break down the front and garage doors and used a tank-like vehicle to bulldoze the home’s backyard fence. By the time the officers gained entry, Little had taken his own life. All agree that the McKinney police acted properly that day and that their actions were necessary to prevent harm to themselves and the public.
Justice Sonia Sotomayor issued an opinion, with Justice Neil Gorsuch joining, questioning the cert denial. By “act properly,” she means did not act unlawfully. This is not to say that the police employed the best tactics, but rather that that tactics employed were not unreasonable, even if there were alternatives that might have proven less destructive to Baker’s home.
[T]he Fifth Circuit adopted a narrower rule that it understood to be compelled by history and precedent: The Takings Clause does not require compensation for damaged property when it was “objectively necessary” for officers to damage the property in an active emergency to prevent imminent harm to persons. Because the parties agreed that the McKinney police’s actions were objectively necessary, the Fifth Circuit concluded that Baker was not entitled to compensation.
Notably, the only path for Baker to obtain relief was via the Constitution’s Takings Clause, as no constitutional right was violated so as to invoke Section 1983 and liability was otherwise precluded by Sovereign Immunity. There is no question but that the cops caused the damage and that Baker bore no responsibility, but so what?
The Court’s denial of certiorari expresses no view on the merits of the decision below. I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual. Under the Fifth Circuit’s decision, Baker alone must bear the cost of that public benefit.
There seems to be a gaping hole in the “objective necessity” exception which leaves Baker, and Baker alone, to bear the brunt of the cops’ decision to destroy her house. But as Sotomayor goes on, the problem becomes clearer.
This Court’s precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable. Consider Bowditch v. Boston (1879), in which the Court held that a building owner was not entitled to compensation after firefighters destroyed his building to stop a fire from spreading…. “At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner” …. Bowditch interpreted Massachusetts state law, but subsequent cases have relied on Bowditch in the Takings Clause context.
Similarly, in United States v. Caltex (Philippines), Inc. (1952), this Court held that the Takings Clause did not require the Government to pay compensation for its destruction of oil companies’ terminal facilities amid a military invasion. The destruction of that property during wartime was necessary, the Court explained, “to prevent the enemy from realizing any strategic value from an area which he was soon to capture.”
While the scenario in Baker certainly puts the homeowner in the far more sympathetic position, and makes the cops look callous and wantonly destructive, the issue raises the more complicated problem of the courts second-guessing the police or military tactical decisions in the midst of an emergency. Any such test that would empower Baker to obtain compensation would create a conundrum that could prevent immediate action in an emergency that costs other lives.
And yet, it seems too obvious for words that had the police merely waited out Little rather than destroying Baker’s house, the problem could have been eliminated here. It was the cops’ impatience that gave rise to the damage, and so it was a choice, a taking, that should be compensated. Was the Court wrong to let the Fifth Circuit’s ruling stand? If not, what should the test be for distinguishing compensible police takings from “objective necessity” takings?
*Tuesday Talk rules apply.
The Founding Fathers would be appalled.
What’s missing here is “justice,” something all too lacking in our justice system. Any fool on the street can see that the police overreacted. The problem with having all of those super-fun military toys is that, sooner or later, you want to use them.
You don’t need to be a legal scholar to see the difference between the burning building analogy and the police destroying someone’s home for giggles. It should be immediately apparent to anyone with a drop of humanity. But I guess that exempts a majority of the Supremes.
Glad it’s Tuesday. On the one hand, I have to repay everyone who bought me a hamburger last week. But on the other hand, I can indulge my tendency to go orthogonal. So why say “the only path for Baker to obtain relief was via the Constitution’s Takings Clause, as no constitutional right was violated….”?? With all the the equipment, weapons, and “military tactical decisions” used by the police, I would consider them to be quasi-soldiers. I bet some of them were dressed the part. Why not consider a Third Amendment claim?
[Ed. Note: You sometimes make me regret TT rules.]
The same thing occurred to me, but the courts have not been kind to attempts to exert Third Amendment claims in the past.
But you might be on to something. According to the National Constitution Center: “Nevertheless, the amendment has some modern implications. It suggests the individual’s right of domestic privacy—that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war—rights that emphasize the importance of civilian control over the armed forces. Some legal scholars have even begun to argue that the amendment might be applied to the government’s response to terror attacks and natural disasters, and to issues involving eminent domain and the militarization of the police.”
I’d certainly like to see the courts adopt that position.
[Ed. Note: It’s comments like this and Orthodoc’s that make me want to end TT with extreme prejudice. Am I making myself clear?]
TK, I worry about you…and anyone else who thinks I might be onto something in the law! That said, I do know a bit about academics, and it’s clear that the incentives are there for scholars to write articles proposing outlandish theories just to get noticed. The theory can be total horseshit (see Khan, L., Amazon’s Antitrust Paradox), but that hardly matters. The Third Amendment is blue ocean territory
Regret??
According to my research, TT has “just a few rules. No violence. No spam or self-promotion. …. [Host] will post whatever comment you leave [and] will not reply. Talk amongst yourselves. Jump atop the SJ soapbox and tell others what you want. There may be great legal ideas, or there may be complete lunacy that could get you killed. That’s up to [the other] commenters.”
And yet some mean old guy keeps saying mean things to me…
Old?
“Was the Court wrong to let the Fifth Circuit’s ruling stand?” Ina a word, “Yes!”. This is as clearly a taking as seizing someone’s property under eminent domain and the homeowner as deserving of compensation.
JMO
You knew this TT was going to be a shitshow, but you did it anyway. While I can appreciate the difficulty in fashioning a rule to distinguish this case from the firefighters, I’m of the view that regardless of the reason, if the government breaks it, it bought it. As you argued in your old post on this case, this spreads the cost rather than placing it solely on the homeowner. I’m convinced.
Trying to be relevant here with three points:
1. Sotomayor’s opinion says, “All agree that the McKinney police acted
properly that day and that their actions were necessary to
prevent harm to themselves and the public.” Maybe that’s so or maybe not, but that agreement complicates the argument for applying the Takings Clause.
2. Sotomayor doesn’t actually think (or so her opinion says) that SCOTUS should have done any more than dismiss the case. Rather, she says, more Circuit couirts should weigh in and then, someday, there’ll be a case SCOTUS should take. Baker, apparently, is just collateral damage on the way to some unknown future.
3. The Texas Constitution provides its own protection against government takings (Article I, Section 17). Would it apply to help Baker? Who knows? Apparently she never invoked its aid, so she never got to find out. It’s not an either/or with the State and US Constitution. She could, and should, have sought benefits under both.
Baker brought a claim under the Texas Takings Clause as well (see district court decision), but the judge held that it only applied to intentional, not negligent, takings.
I would say firing explosives into the home and driving a “tank” through it were pretty intentional.
Oh sure. Read the decision rather than just Voloikh.
Sorry. That was unfair of me.
I think this has been the black letter law for a long time. However, the widespread exclusion from homeowner policies is more recent, and generally also excludes a range of criminal and civil insurrection damages.
Well-advised property owners will simply not make the police call while a fugitive is sheltering on their premises. That was where the plaintiff made her mistake. Once the non-reporting scenario plays out a few times, states will have an incentive to deal with the problem by either providing a state level assistance fund, or by prohibiting the insurance exclusions that cause these problems to be uncovered by insurance. Until then, it’s the property owner’s problem to deal with.
I suppose the executives of state and federal government are worried more about a possible torrent of minor claims than a few big ones. After all, the difference between bulldozing a house and leaving a muddy footprint on the patio is only a matter of scale.
Ms Baker should ask her elected representatives to sponsor a bill to pay for the reconstruction. They probably won’t, but they may feel badly about themselves for a minute or two.
If the government has any reason to exist, and to steal money from all of us, it is to pay its innocent victims for the damage that it causes. If it’s not going to do that, then we’re better off without it.