That is the title of a recent post by Professor Ilya Somin in The Volokh Conspiracy blog. The subtitle is, “The ruling authorizing the award is at odds with other federal court decisions holding that law-enforcement exercises of the ‘police power’ are exempt from takings liability.” The trial was on damages only – the ruling referred to in the subtitle is U.S. District Judge Amos Mazzant’s grant of summary judgment on liability, Baker v. McKinney (ED Texas, No. 4:21-CV-00176, 4/29/22).
There is no possibility that I could write a better summary of and commentary on the case than Ilya Somin’s, so I’m not even going to try. (If you don’t know about him, https://sls.gmu.edu/ilya-somin/, and about The Volokh Conspiracy, https://reason.com/volokh/editorial-independence/, you should.) Below is an excerpt from his post, which in turn excerpts the key points from Judge Mazzant’s opinion. (My excerpt does not include everything Professor Somin quoted from Judge Mazzant’s opinion.) The whole post is well worth reading, as is the full opinion if you have the time (it’s 34 pages). So without further ado, herewith Professor Ilya Somin:
I think the decision [granting summary judgment on liability] 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, [Judge Mazzant] 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 don't agree with everything in his analysis. But he gets the bottom line right:
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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…. The most factually analogous to the case at bar is Lech…[which] rests on an untenable analysis of police power and eminent domain. The Tenth Circuit…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….
[The Supreme Court has distinguished between physical and regulatory takings. A higher bar for takings recovery] 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. 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. These physical invasions represent such a greater affront to individual property rights – as compared to regulatory takings – because they often involve an unoffending property being taken away from an innocent owner with few easily identifiable benefits in return. (Citations and internal quotation marks omitted. – MPA)
Judge Mazzant makes many additional points, including emphasizing that the rule advocated by the City would, if applied consistently, effectively gut the Takings Clause, because all sorts of government actions can potentially be construed as exercises of the police power, given how broadly the latter has been defined. I covered this point in my earlier critique of Lech:
The fact that the “police power” may have been involved does not normally immunize the government from takings liability. As the Lech decision notes, the police power extends to government actions “for the protection of public health, safety, and welfare.” Modern jurisprudence defines these concepts very broadly. Yet, in many contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety….
Outside the context of law-enforcement operations, the fact that the government was trying to promote public safety does not create blanket immunity from having to compensate innocent owners whose property is taken or destroyed in the process. There is no good reason to exempt law-enforcement operations from takings liability of the same kind that applies to other government actions that might enhance public safety.
In December 2019, the US Court of Federal Claims ruled that the US Army Corps of Engineers was liable for a taking when it deliberately flooded numerous properties in Texas during Hurricane Harvey in order to prevent even worse flooding elsewhere. In 2012, the Supreme Court ruled that the government could be liable for a taking when it inflicted recurrent flooding on property, even though the purpose of the flooding was to protect farm interests in the region. If the “police power” theory doesn't immunize the government in these kinds of cases, despite potentially massive benefits to public safety, it is difficult to see why law-enforcement operations should be given blanket immunity from takings liability….
[I]f an innocent person's land is damaged or destroyed merely to forestall a threat emanating from elsewhere – whether flooding or a fugitive criminal – then the Takings Clause requires compensation. As the Supreme Court famously stated in Armstrong v. United States (1960), “The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation 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.”
Judge Mazzant’s ruling might well end up being reviewed on appeal. Regardless, the issue of takings liability for destruction of property by law-enforcement agencies is likely to remain contentious for some time to come. Hopefully, more courts will come to realize that the police power is not a blank check to for cops to destroy innocent people’s property without paying for it.
