A federal court ruled on November 18 that the Fifth Amendment’s Takings Clause may be used to require compensation for a case in which a SWAT team of police destroyed an innocent victim’s house in pursuit of a criminal suspect. This ruling, as Judge Amos Mazzant in Baker v. McKinney points out, is in contradiction to other Federal Court decisions that have been made in similar cases. These cases held that takings liability cannot exist in these cases due to the exception for “police power” under the Takings Clause. This is a very important issue, and the existing jurisprudence on it is not clear. It is possible that the case will become a precedent.
Reason’sBill Binion offers a useful summary of some of the most disturbing facts:
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 responded. She recognized Baker’s face from the news stories that he was being sought for abducting a girl of 15 years old.
The SWAT team arrived quickly. They detonated tear gas and grenades within the structure, set off explosives in Baker’s garage entranceway and ran across Baker with an armored car. Then they ripped her front door. Baker had been given a garage opener and code to access the back gate. 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 would likely have to appeal against the city. If her suit is granted a better fate, Baker may be able to recover some of the financial expenses she incurred while she fights stage three cancer. Some things are not replaceable. For example, tear gas damaged an antique doll collection. Even worse, the dog her daughter had adopted was blind and deaf.
Baker stated, “I’ve been robbed of everything.” Reason last March. I’ve lost the chance to sell my home. My chance of retiring without worrying about my monthly bills has ended.
These aggressive tactics were understandable given the fact that Little was holding the girl, 15 years old, against her will and that he was believed armed. But, as Judge Mazzant recounts in his ruling, by the time the SWAT team “Forcibly entered
You can remove the garage and front doors from your home and run over the back fence. Little was already releasing the little girl in good health with his tank-like BearCat. He had also taken his own death when the police reached the home.
The Fifth Amendment says the government must pay “just compensation” whenever it takes private property for public use. The deliberate destruction by government officials of private property is considered a taking. This has been the position for many years. In 1872, Supreme Court held that any “invasion of real property by superinduced additions water, earth, or another material” is a taking. . . It is considered a taking if it has the effect of destroying or impairing its useability. This is within the scope of the Constitution. To see Vicki Baker’s “effectually destroyed” house, you don’t need to be a takings scholar.[ed]Impair or reduce[ed] [in]”its usefulness,” and that police intentionally caused the damage.
Courts have long maintained that only certain exercises of “police power”, the government’s authority to safeguard public safety and health, are exempted from liability. This is the case in 2019. Lech v. JacksonIn a case very similar to the one above, the US Court of Appeals Tenth Circuit relied on the police power theory to avoid taking liability. The police destroyed the house of an innocent family while trying to capture a suspect.
My view is that Judge Mazzant’s opinions suggest that the reasoning behind Lechit’s incorrect, and 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 that results from valid police powers cannot be considered a fifth. Amendment Taking. The Amendment Taking. When property is destroyed by the exercising of valid rights, it requires that just compensation be paid police power. Correctly, the City points out that recovery has been impeded by other circuits. Similar circumstances. Look! Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App’x. 711; AmeriSource Corp., 525 F.3d 1149.
But, the Supreme Court as well as the Fifth Circuit suggested this action. Could amount to a taking. In John Corp. against City of HoustonThe Fifth Circuit stated that the Fifth Circuit made a distinction. There is a difference between police and eminent domain powers. . . It is impossible to carry the day” It is used to determine whether or not a taking occurred. 214 F.3d at 578–79. Additional “[t]The entire Supreme Court The’regulatoryTakings’ law was based on the idea that cities can exercise their police power. It has gone too far. If it does, then there was a taking.” Id.(citing Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). 415 (1922) Lucas v. S.C. Coastal CouncilThe Supreme Court stated that “private uses” could be considered illegal. The police had the power to make property subject to an unbridled, non-compensated qualification. The natural human tendency would be for the qualification to become more valuable until private property is lost. 505 U.S. 1003, 1014 (1992)….
The Court found the Fifth Circuit’s and Supreme Court reasoning convincing, especially at This is the stage in litigation when it interprets all allegations in the best possible light for Baker. This stage of litigation is where Baker’s allegations are interpreted. Motion to dismiss the stage shaky reasoning recited in non-binding cases from other circuits—especially when both the Fifth Circuit and Supreme Court both suggested that takings could be caused by destructive police power. Baker has plausibly stated that her house was destroyed by the City. Exercise of their police power Could amount to a taking, the Court continues its takings analysis….
Although the Court admits that governments aren’t “liable under” statutes,
Property owners can use the Just Compensation Clause Each time Police officers break down doors to stop burglars from getting in to buildings[,]” Nat’l Bd. Young Men’s Christian Ass’ns, v. United States395 U.S. 85 (1969), Baker asserts that she has caused damage to her private property property—and the City’s refusal to compensate for such damage—that plausibly amounts to a FViolation of the ifth Amendment
Judge Mazzant has it right. The police power doesn’t create an exemption from liability for takings. It is also not possible to create a blanket exemption for law-enforcement activities. In my criticism of the Lech Appeal in an amicus brief where the Cato Institute, I, and others unsuccessfully requested the Supreme Court to reconsider and uphold the ruling Lech. I also pointed out that the Takings Clause, among other things was enacted to counter the depredations by British troops in colonial eras 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.
Recenty, the Court of Federal Claims has ruled in December 2019 that the exception to the police power does not preclude takings liability for a case in which the Army Corps of Engineers intentionally flooded large portions of Houston in an effort to avoid worse flooding during Harvey 2017.
The case is not resolved by Judge Mazzant’s decision. This ruling merely rejected the motion of dismissal by the City, which allows Baker to continue her claim. It doesn’t set out a standard as to when law enforcement operations that are destructive can be considered takings. The court does not accept the idea that these operations are exempt from the law, as was supported in Lech.
This preliminary ruling will likely be appealed. The ruling may only be the start of a lengthy legal battle. This legal battle is worth your attention. Status of police power exemption to takings is a key issue in a range of government policies. This includes deliberate flooding on private land, Covid-19 shutdowns and law enforcement operations.
It is worth noting, however, that regardless of legal concerns, any just government would recognize that it has the moral responsibility to compensate in such cases. It is clear that its agents deliberately caused great harm to an innocent homeowner. Although they may be doing so with a noble purpose (catching dangerous criminals), justice and fairness require that all those who are able to benefit from the capture of the suspect bear the costs, rather than focusing on one individual who has done no wrong.
Unfortunately, many governments fail to see the need for justice. We need to have constitutional rights.
NOTE: Plaintiff in this case is represented in court by Institute for Justice. This public interest firm has longstanding relationships with me. They were my summer clerks when I was in school and I wrote multiple pro bono briefs for their benefit. The case is not my responsibility. IJ has issued a statement on Judge Mazzant’s ruling, available here.