Vicki Baker received $59,656 in takings compensation after a police SWAT team badly damaged her home while attempting to capture a fugitive who had taken refuge inside.
It is possible that the jury verdict’s enabling federal district court decision from Baker v. City of McKinney on April 29 is more important than the verdict itself. The choice, in my opinion, is sound.
However, it conflicts with several earlier federal court rulings (in other circuits), which concluded that when police damage or destroy property during law enforcement activities, property owners are not entitled to “fair compensation” under the Fifth Amendment.
A prominent recent example of a case where courts determined that the “police power” exception to takings liability applies in these types of circumstances is the Tenth Circuit’s 2019 judgement in Lech v. Jackson (I criticised Lech here).
Lech’s facts and Baker’s were very comparable. In both instances, police intentionally caused significant property damage to an innocent homeowner to apprehend a fugitive. Fortunately, because his court is in the Fifth Circuit, not the Tenth, District Judge Amos Mazzant of the Eastern District of Texas was not constrained by Lech.
He provided a very extensive justification for his decision to decide differently in his opinion [I was unable to locate an open-access copy of Baker on the internet; nevertheless, it is available on Westlaw and Lexis]. Not all of his analysis agrees with me. But he gets the point over in the end:
According to the Supreme Court, any action that has the result of depriving the owner of all or the majority of his or her interest in the subject matter, such as causing it harm or destruction, is a taking within the meaning of the Takings Clause.
According to the Takings Clause, even a minor “permanent physical possession of real property” necessitates payment. 102 S.Ct. 3164, 73 L.Ed.2d 868; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427; (1982). “The Takings Clause imposes a clear and categorical requirement to provide the owner with just compensation whenever the government physically acquires private property for a public use.”
141 South Court, at 2071, is Cedar Point. Examples of physical takings include taking possession of property without acquiring title, formally condemning a property through the use of the eminent domain, or even creating a dam that causes recurring flooding. The “clearest sort of taking” is when the physical property is appropriated in this manner.
Ignoring this legal precedent, the City urges the Court to establish a new bright-line rule that says destruction coming from proper use of the city’s policing authority does not qualify as a Fifth Amendment take.
The City bases its arguments on rulings from other circuits that have outright prohibited recovery when the property was destroyed as a result of authorised use of police force. Please refer to Lech v. Jackson, 791 Fed. App’x. 711 (10th Cor. 2019)… Lech is the case that is most closely like the one in hand factually.
Lech’s conclusion is based on a flawed evaluation of eminent domain and police power. The Tenth Circuit first ruled that any taking made in reliance on police power is categorically non-compensable and that there is no difference between physical and regulatory takings in the context of police power. Id. at 717.
The destruction of the Lech family’s home, according to the Tenth Circuit, was a legal use of the state’s police authority. Id. at 718-19. The Tenth Circuit accordingly rejected Lech’s takings claim.
The Supreme Court first acknowledged a “hard-line between those actions the government performs under its power of eminent domain and those it performs under its police power… in the context of regulatory takings” in Mugler [v. Kansas (1887)], according to the Tenth Circuit. Strangely, the Supreme Court did not draw this distinction.
In fact, the Lech court misapplied the claimed Mugler ruling by the Supreme Court to cases involving physical takings rather than treating such cases differently from those involving regulatory takings.
This choice is wise from a regulatory standpoint, where the state’s use of its police powers to establish a law or regulation is likely to have “tangential,” “unexpected,” and unquantifiable impacts on the private use of the property. 122 S.Ct. 1465; Tahoe-Sierra, 535 U.S. at 324.
Additionally, these intangible impacts are frequently justified by emphasising how doing so advances the common good. In the event of tangible takings, such is not the case. ..
Baker’s case illustrates how physical invasions of property committed under the authority of the state to enforce the law are “relatively infrequent, clearly detected, and typically represent a bigger affront to individual property rights.” 122 S.Ct. 1465; Tahoe-Sierra, 535 U.S. at 324.
In comparison to regulatory takings, these physical intrusions are more offensive to private property rights since they frequently involve the “taking away of an innocent owner’s unoffending property” and offer little obvious benefits in return.
8 S.Ct. 273, Mugler, 123 U.S. at 669. In these circumstances, the property owner ought to receive payment in exchange for forfeiting the land for public use. ..
Judge Mazzant makes numerous other points, highlighting the fact that the rule supported by the City would if consistently applied, effectively nullify the Takings Clause because any action taken by the government could be interpreted as an exercise of the police power given how broadly that power has been defined. This topic was explored in my earlier criticism of Lech:
The mere possibility that “police authority” was utilised does not typically shield the government from legal responsibility. The Lech ruling states that government acts “for the preservation of public health, safety, and welfare” are also covered by police power.
These ideas are extremely extensively defined in contemporary law. Even though the law in question was intended to safeguard health or safety, courts frequently find that takings have nonetheless occurred in numerous situations.
For instance, the Supreme Court determined that a ban on mining can count as a taking even when its goal was to ensure the safety of persons and property on the surface in the renowned Pennsylvania Coal v. Mahon case from 1922.
Similar to this, even while environmental restrictions frequently aim to improve public health or safety, they can occasionally qualify as takings if they significantly reduce the value of a property.
The government’s efforts to advance public safety outside of law enforcement operations do not automatically exclude it from having to provide compensation to innocent owners whose property is stolen or destroyed in the course of such efforts.
There is no justification to exempt law enforcement activities from the same types of takings liabilities that apply to other government measures that could improve public safety.
In fact, as the Supreme Court acknowledged in the Horne case from 2015, the Takings Clause was initially motivated in part by horror at the confiscation of property by both British and American forces during the colonial era and the Revolutionary War.
Of course, a large portion of these British activities was performed to impose British law on disobedient colonists.
To avert even catastrophic flooding elsewhere, the US Army Corps of Engineers purposefully flooded many properties in Texas during Hurricane Harvey, according to a decision made by the US Court of Federal Claims in December 2019.
The Supreme Court found in 2012 that repeated flooding on private property could constitute a taking even when the flooding was done to safeguard local farmers’ interests.
It is difficult to see why law-enforcement activities should be given broad immunity from takings liability if the “police authority” argument does not shield the government from accountability in these situations, despite the possibility of significant advantages to public safety.
As in other cases, if the government actually stands to gain much from seizing or destroying property, it ought to be prepared to make up for the harm it causes to innocent owners.
On the other hand, law enforcement organisations would be well-advised to provide stiffer rules for their staff if they discover that they frequently wind up paying remuneration that vastly surpasses any conceivable advantage resulting from the use of such aggressive measures. They might want to be more watchful about damaging property in the future.
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When the owner’s property or his use of it actually poses a threat to public safety, such as when it encourages the spread of a lethal disease, for example, things might be different, as Judge Mazzant points out in one portion of his ruling.
In subsequent publications, I intend to revisit this topic. However, the Takings Clause mandates compensation if an innocent person’s land is harmed or destroyed only to avert a hazard coming from somewhere else, such as flooding or a runaway criminal.
The Fifth Amendment’s prohibition against taking private property for public use without just compensation, as the Supreme Court famously stated in Armstrong v. United States (1960), was intended to prevent the government from making some people alone bear burdens that, in all fairness and justice, should be carried by the public as a whole.
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The decision of Judge Mazzant may end up being challenged on appeal. Regardless, the topic of law enforcement forces’ culpability for property destruction is likely to be debatable for some time to come.
Hopefully, more courts will come to understand that the police’s authority does not give them carte blanche to destroy the property of innocent people without having to pay for it.
