Must Government Pay Compensation When It Damages Innocent Owner’s Property in Police Action?

From Justice Sotomayor’s opinion today respecting denial of certiorari Baker v. City of McKinney, joined by Justice Gorsuch:

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.

On July 25, 2020, in McKinney, Texas, a fugitive named Wesley Little kidnapped a 15-year-old girl. After evading the police in a high-speed car chase, Little found his way to petitioner Vicki Baker’s home with his victim in tow. Little was familiar with the home because he had previously worked there as a handyman. Baker had recently retired and moved to Montana, so her daughter Deanna Cook was at the house that day, preparing to put it up for sale. When Cook answered the door, she recognized Little and the child with him: Earlier that day, Cook saw on Facebook that Little was on the run with a teenage girl. Cook feigned ignorance and let them into the house, but told Little, falsely, that she had to go to the supermarket. Once outside, Cook called Baker, who called the police.

McKinney police arrived soon after and set up a perimeter around Baker’s home. Eventually, Little released the girl and she exited the house. The girl told the police that Little was hiding in the attic, that he was armed, and that he was high on methamphetamine. Later, while still in the attic, Little told the police that he was not going back to prison, that he knew he was going to die, and that he planned to shoot it out with the police.

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.

The actions of the police also caused extensive damage to Baker’s home and personal belongings, however. As the District Court explained:

“‘The explosions left Baker’s dog permanently blind and deaf. The toxic gas that permeated the House required the services of a HAZMAT remediation team. Appliances and fabrics were irreparable. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), and bricks needed to be replaced—in addition to the windows, blinds, fence, front door, and garage door. Essentially all of the personal property in the House was destroyed, including an antique doll collection left to Baker by her mother.'”

In total, the damage amounted to approximately $50,000. Baker’s insurance refused to cover any damage caused by the McKinney police. {Homeowners’ insurance policies generally do not provide coverage for damage caused by the government.} Baker, who bore no responsibility for what had occurred at her home, then filed a claim for property damage with the city. The city denied the claim in its entirety….

[The Fifth Circuit below] declined to adopt the city’s broad assertion that the Takings Clause never requires compensation when a government agent destroys property pursuant to its police power. Such a broad categorical rule, the Fifth Circuit reasoned, was at odds with its own precedent and this Court’s Takings Clause jurisprudence.

Instead, the 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. Baker now petitions for certiorari and asks this Court to reverse the Fifth Circuit’s judgment.

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.

The text of the Takings Clause states that private property may not “be taken for public use, without just compensation.” The Takings Clause was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” This Court has yet to squarely address whether the government can, pursuant to its police power, require some individuals to bear such a public burden.

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.”

That holding accorded with the common-law principle “that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved.” These cases do not resolve Baker’s claim, however, because the destruction of her property was necessary, but not inevitable. Whether the inevitable-destruction cases should extend to this distinct context remains an open question….

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