This past week we were busy with the 22d Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Here’s the text of the remarks which I prepared for the session on “Public Safety, Private Property, and Just Compensation.” Note: because of time, I truncated what I planned on saying and kept it shorter.

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Public Safety, Private Property, and Just Compensation

Before I begin, a prelude. As you learned earlier, yesterday the student Real Estate Law Society produced a reargument of Kelo.

Ms. Kelo won this time. Six-to-zero, adopting the rationale of Justice Thomas’s dissent in the original case, with one concurring opinion. (More about this event in a separate post.)

And for those of you in the audience who didn’t know, Ms. Kelo’s famous little pink house was saved, even though her property was not. The house was taken apart board-by-board and relocated to a different neighborhood in New London, where it was reassembled, where it is today. If you are ever nearby, it’s worth a visit.

And just a couple of miles away, right across Fort Trumbull, is the former Kelo land, which remains vacant. We paid a visit a couple of months ago, and here’s what it looks like.

OK, let’s get back to the topic of the day: public safety takings.

Dick Miller, a great teacher and mentor of mine once offered up this pearl of wisdom, and of all the things I took with me from my legal education, this one has perhaps stuck the most: “Robert,” he said, “if it ain’t Latin, it ain’t the Law!”

In that vein, the Latin at the heart of our discussion today is familiar to all of us: “salus populi est suprema lex.”

For those of you, like me, who can’t handle Law French much less Latin (for example, I have no idea how to pronounce “voir dire,” except to get the judge to say it first and then parrot her pronunciation), here’s the translation: “The welfare of the people is the supreme law.”

And on that, I would suspect that no matter whether one is a police power hawk or an advocate for property rights, that we would agree that this proposition, at least in its broadest form, should be government’s guiding principle. All government action should be to promote the public health, safety, welfare, or morals. Or put another way, government should not act arbitrarily or capriciously. Or contrary to the law of the land. No less a figure than John Locke—no enemy of property rights—started off his seminal Second Treatise on Government with the phrase (“SALUS POPULI SUPREMA LEX ESTO”). So it has an impeccable pedigree.

And we have seen our Supreme Court take that phrase to heart, particularly when it comes to the sovereign power to regulate and restrict the use of property (the police power), and even the power to expressly deprive an owner of his or her property, in whole or in part through eminent domain. With the takings power being “coterminous” with the police power, there’s little distinction between how government acts, as long as it does so for the public welfare. The difference being that when property is taken—and not merely regulated—the public must provide just compensation.

As the Court has persistently reminded us, the primary principle to be derived from the Fifth Amendment isn’t to stop government from acting in the public interest, but to ensure that the costs and burdens of that action are not concentrated on the owner whose property just happens to be in the way.

And the topic of this panel, SWAT takings—where the government damages or destroys the private property of an innocent homeowner in the course of apprehending a criminal suspect—brings the salus populi principle into sharp focus.

After all, all of the textual elements are there to show that this “goes too far” and a classic police power action should be treated as a de facto taking and trigger the obligation to compensate:

  • an owner has private property (and in the cases brought recently, the property is a home), there’s been a physical invasion resulting in pretty severe damage (some of the photos look like a war zone),
  • the government has unquestionably acted for the public welfare and safety (we all want Five-O to apprehend criminals, I assume),
  • and the owner is being required to bear the costs herself and the public has not offered up compensation (and as an amicus brief I did in one of these cases that is reproduced in your materials noted, homeowner’s insurance generally is not available to permit the owner to pay herself to avoid the risk of such government actions).

Armstrong, cost spreading…we all know the drill:

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.

But if there’s a universality in the judicial approach, it is this: no taking … or at least no compensation is required. The variety occurs in how the courts get there.

Some say no absolute right to exclude, with the issue turning on whether the police are acting pursuant to a valid warrant, incorporating by reference Fourth Amendment property law. Some say the owner has no expectations of exclusion of the government as a background principle. Some say the owner can and should anticipatorily mitigate by insurance.

And in what I find to be the least defensible justification, conclude that because the police are exercising the police power—are acting for the public’s health, safety, and welfare—there can be no taking—categorically. Salus populi est suprema lex.

To me, to conclude that because that police action was necessary it is not a taking, is to reject the foundation of the regulatory or de facto takings doctrine: that an otherwise valid exercise of some power other than the eminent domain power will, if it “goes too far” into the property rights of an owner, be deemed to be a taking requiring compensation giving the government a choice: stand down or pay up. The more necessary for public health, safety, and welfare, the more it should be compensated. These are not Kelo-like actions where the government conduct has only predictable, or attenuated, public benefits, but a direct promotion of the public good.

For example, there’s no substantial question the Kohler Act was a valid, and seemingly very necessary, exercise of Pennsylvania’s police power. Even if you discount some of the more breathless portions of the brief of the City of Scranton—complete with photos of collapsed schools and unearthed caskets—the Pennsylvania legislature adopted the Act unanimously, at a time in history when one might expect that one of the stronger lobbies having a lot of influence in that legislature was the coal industry.

One sidebar: inspired by Professor Fischel’s peeks behind the curtain of important cases like the Cedar Rust case, on the day of the 100th anniversary of the Court’s issuance of the Mahon opinions in December 2023, John Ross and I were on site at the former Mahon home and property on that day, where we learned of the inherent oddity at the heart of the case: the Kohler Act was adopted unanimously with the mainstream coal industry aboard. It was designed to curb the mining of wildcat or cowboy mining companies, which would buy up the rights to continue mining coal in mines which more responsible coal companies like Pennsylvania Coal had ceased, precisely to avoid surface collapse. Thus, the Act made it illegal to mine out the support pillars, something the mainstream companies were not doing.

But Mahon (and it is pronounced “man”) sure looks like it was a test case by the Pennsylvania Coal Company. Not too many degrees of separation. Mahon was a lawyer and until Scranton intervened, represented himself. He was the son-in-law of the prior owner, the Chief Engineer of the Pennsylvania Coal Company, the owner who obtained the property subject to the deed covenant that the Pennsylvania Coal Company could mine out 100% of the coal under the home, even if it caused the home to fall into the resulting hole. It wasn’t likely that the Company was actually going to mine out beneath the home of the daughter of its former Chief Engineer.

But in the event that precipitated the litigation, it sent notice to the Mahons that indeed it was going to exercise its rights, and heads up: your house may fall into a hole soon.

The great mystery is why Pennsylvania Coal would challenge a statute it didn’t object to being passed. Perhaps having served its purpose of shutting down the cowboy miners, the mainstream industry wanted to be sure that it wasn’t hoist on its own petard, it was time to get it invalidated. And a historical note: despite winning in the Supreme Court, the Company never did mine out under Mahon’s home, and the present owner confirmed to John and I that of all the homes in his neighborhood, his home is the only one which has never suffered any subsidence.

And one final note on this sidebar: after that visit and with the consent of the owner, John and I thought it might be a good idea to commemorate the Mahon decision. After all, less that 3 miles away as the crow flies, Pittston, PA is the location of another famous Supreme Court decision, Erie RR v Tompkins.

If that deserved a roadside marker, then doesn’t Mahon?

I’m happy to report that, with the support of some of you in this room, that the Pennsylvania Historical Marker Commission recently approved our application for a Mahon property marker, to note the importance of the Supreme Court’s decision. Stay tuned for more – John and I will let you all know when the dedication ceremony for the marker is scheduled and ask you to join us in Northeastern Pennsylvania.

Now back to our story.

That all said, we tend to focus on the Holmes 8-Justice majority in Mahon and its “goes too far” language, contrasting it with the “government could hardly go on” phrasing later in the opinion. But we should pay more attention to the solo dissent of Justice Brandeis, who argued that because the Kohler Act was so necessary, it cannot be a taking, and cannot result in compensation. Salus populi est suprema lex.

This was a dissenting view, and why I think it is too bad that it is overlooked, is that the necessity principle seems to adopt and incorporate it, and it is troubling to me that Brandeis’ rationale is deployed to deny compensation, when a solid exercise of police power is not terribly relevant to the compensation question. But it is a minority view, and it should be seen as such.

But that’s just saying what won’t work. Thus far, the question of SWAT takings has not been taken up by the Supreme Court under any theory, despite at least a couple of very solid vehicles presenting the case. So what approach might interest the Court? Especially in a way that does not risk the Court’s majority, or even a minority in dissent, scaling back on what I view as the fundamental principles of Mahon?

As discussed earlier, I suspect what might catch the Court’s attention would be arguments centered on — you guessed it — text, history, and tradition. The Supreme Court has deployed the text, history, and tradition approach across a wide range of cases, not just property, and it looks like it is here to stay at least for a while.

The text on SWAT takings seems pretty straightforward. The public is “using” the property of innocent homeowners, or at least appropriating – temporarily – the owner’s right to exclude.

What about history and tradition? There, I have observed that courts focus on wartime or emergency cases which hold no compensation. But that history doesn’t seem to line up exactly with SWAT takings, because the cops chasing a suspect isn’t a “war” and it happens with such regularity that it hardly seems like an “emergency” where the usual non-emergency rules must be applied in a time of extreme distress.

What does tradition and our common law roots have to say about this?

After the Great Fire of London in 1666, the Fire Court was established was created to resolve “[d]ifferences touching Houses burned or demolished by reason of the late Fire which happened in London” between landlords and tenants. The court began its seating on January 1, 1668. The legislation charged the court with resolving disputes about the required rebuilding, property boundaries, the “Rents as if the same had not been burned,” and the like. The legislation noted the goal of spreading the public loss among the entire public, too:

And for that it is just that every one concerned should bear a proportional share of the loss, according to their several Interests, wherein in respect of the multitude of cases varying in their circumstances no certain general rule can be prescribed.

The Armstrong principle, applied.

As noted above, the jurisdiction of the court included not only structures actually burned by the fire, but those “pulled down or otherwise demolished, defaced, or otherwise ruined by reason of the said Fire.” The vibe of the statute seems to have been to get these disputes resolved in a single forum, and quickly (appeals had to be made in seven days for example).

This seems to presume that some kind of compensation was owed when someone’s property was purposely destroyed or damaged in order to protect the public’s welfare and safety.

This is in line with Lord Coke’s admonition in the Saltpetre Case that even though the King’s “saltpetre men” could exercise the King’s prerogative to enter private property with warrants against the will of the owner in order to mine saltpetre for use in gunpower to defend the realm against France and Spain (especially the Spaniards!), that the Crown has an obligation to leave the owner in as good a position he would have been in without the entry:

Yet it was resolved, that he may dig for Salt-peter, for this that the Ministers of the King who dig for Salt-peter, are bound to leave the Inheritance of the Subject in so good Plight as they found it[.]

12 Coke at C1. Sounds a lot like “the full and perfect equivalent” and “the owner shall be put in as good position pecuniarily as he would have been if his property had not been taken.” Seaboard Air Line Ry. v. United States, 261 U.S. 299 (1923).

And – thanks to a former student of mine who is now practicing eminent domain law with Clint Schumacher – David Wilde, I now understand that the compensation principle even when – or perhaps especially when – destruction or damaging of private property is necessary to promote the public good.

In the trial court arguments in the Ship Money Case, David discovered that the issue came up, and the advocate argued that in such cases there’s no proclaimed that there’s no “prejudice” because the Crown or the Parliament was obligated to indemnify for any loss. Fascinating stuff.

But OK, that’s English law. What about American law?

And again I have David to thank for this. His research is showing that in colonial and early American law, legislatures recognized that in the case of fires, local officials were authorized to “tear down or blow up” homes to stop the conflagration from spreading. But importantly, that the owners of those destroyed houses “shall receive reasonable satisfaction, and be paid by the same, and be paid by the rest of the inhabitants whose houses shall not be burnt.” History and tradition indeed.

But this is statutory or local ordinance, not constitutional law? As to that, we need look no further than Tyler v. Hennepin County for the Supreme Court looking at how state law addressed similar issues for an example. I suggest that were the Court presented with a case of a SWAT taking, it could take up the issue and resolve it without diving into the morass of Penn Central which, in my view, wrongly focuses the takings question on the “taken” part of the Fifth Amendment and not the “public use” requirement.

Thank you for granting me this time. A shout out to my students who are here today, thank you for being here. And a hearty congratulations to our Prizewinner, Professor Fischel.