Federal Jury Awards $59,000 in Takings Compensation to Property Owner Whose House was Severely Damaged by SWAT Team Pursuing a Suspect

Yesterday, a federal court jury awarded Vicki Baker $59,656 in takings compensation because her house was severely damaged by a police SWAT team trying to apprehend a fugitive who had holed up inside.  The April 29 federal district court ruling in Baker v. City of McKinney that made the jury verdict possible is potentially more significant than the verdict itself. I think the decision is correct. But it is at odds with several previous federal court decisions (in other circuits), which have held that property owners are not entitled to “just compensation” under the Takings Clause of the Fifth Amendment when police damage or destroy property in the course of law enforcement operations.

The Tenth Circuit’s 2019 decision in Lech v. Jackson is a notable recent example of cases where courts have ruled that the “police power” exception to takings liability applies in these kinds of cases (I criticized Lech here). The facts of Lech were very similar to those of Baker. In both cases, police inflicted massive damage on an innocent owner’s home in order to try to smoke out a fugitive. Fortunately, District Judge Amos Mazzant of the Eastern District of Texas wasn’t bound by Lech, because his court is in the Fifth Circuit, not the Tenth. In a very thorough opinion, he explained why chose to rule a different way [I have not been able to find an open-access copy of Baker on the internet; but it is available on Westlaw and Lexis]. I don’t agree with everything in his analysis. But he gets the bottom line right:

The Supreme Court has stated that a taking, within the meaning of the Takings Clause, includes any action the effect of which is to deprive the owner of all or most of his or her interest in the subject matter, such as destroying or damaging it….

[E]ven a minimal “permanent physical occupation of real property” requires compensation under the Takings Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). “When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.” Cedar Point, 141 S. Ct. at 2071…. Examples of physical takings include formally condemning a property through the power of eminent domain, taking possession of property without acquiring title, or even by recurrent flooding as a result of building a dam…..These sorts of physical appropriations constitute the “clearest sort of taking…”

Ignoring this jurisprudence, the City asks the Court to adopt a new brightline rule: destruction resulting from a legitimate exercise of the City’s police power does not constitute a taking under the Fifth Amendment…

The City relies on decisions from other circuits that have wholly banned recovery as a matter of law where the destruction of property was the result of a valid exercise of police power. See Lech v. Jackson, 791 Fed. App’x. 711 (10th Cir. 2019)… The most factually analogous to the case at bar is Lech….

Lech‘s decision rests on an untenable analysis of police power and eminent domain. The Tenth Circuit first held that in the police power context, there is no distinction between physical and regulatory takings, and any taking pursuant to a police power is categorically non-compensable. Id. at 717. Second, the Tenth Circuit decided that the destruction of the Lech’s home was a valid exercise of the state’s police power. Id. at 718–19. Accordingly, the Tenth Circuit denied the Lech’s takings claim….

The Tenth Circuit characterized Mugler [v. Kansas (1887)] as the first time the Supreme Court acknowledged a “hard line between those actions the government performs pursuant to its power of eminent domain and those it performs pursuant to its police power … in the context of regulatory takings.” Id…... But the Supreme Court made no such distinction. Indeed, the Lech court improperly extended the Supreme Court’s purported holding in Mugler to physical takings cases, rather than treating physical takings differently than their regulatory counterparts….

This decision is prudent in the regulatory context where enactment of a rule or regulation by a state pursuant to its police powers is likely to have “tangential,” “unanticipated,” and unquantifiable effects on the private use of property. Tahoe-Sierra, 535 U.S. at 324, 122 S.Ct. 1465. Moreover, these unquantifiable effects can often be justified by pointing to the benefit to the public good…. That is not the case in the context of physical takings….. Physical invasions of property made pursuant to a state’s police powers—Baker’s case here—are “relatively rare, easily identified, and usually represent a greater affront to individual property rights,” Tahoe-Sierra, 535 U.S. at 324, 122 S.Ct. 1465. These physical invasions represent such a greater affront to individual property rights—as compared to regulatory takings—beca