Here's the latest in a case and an issue we've been following.
Recall that the U.S. District Court for the Eastern District of Texas concluded that the City of McKinney, Texas was liable for the taking of Vicki Baker's home, after city police officers destroyed a large part of it while apprehending a suspect who had taken refuge therein. The court awarded just compensation and the city appealed.
Now, the other shoe drops: in Baker v. City of McKinney, No. 22-40644 (Oct. 11, 2023), the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that because the invasion was necessary and a justified use of the city's police powers, it does not owe compensation.
We've been down this path before, so we won't go over it in detail (recall that the Tenth Circuit reached the same conclusion and the subsequent cert petition was denied by the Supreme Court). Our thoughts about the issue are in the amicus brief we filed in that case, in which we argued that an invocation of police power or necessity isn't dispositive or outcome-determinative.
The Fifth Circuit has now joined the Tenth:
We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.
Slip op. at 2.
The Fifth Circuit takes a slightly more nuanced view, rejecting the city's invitation to hold that any substantial police power reason would be enough to avoid the obligation to provide compensation. Instead, "the mere fact that Baker's property has been damaged or destroyed pursuant to the City's police power cannot decide this case." Slip op. at 8. So the government isn't categorically exempt. (Silver linings and all that.)
But the opinion also concluded that the worm doesn't turn in the property owner's direction either: "[w]hat Baker needs, in other words, is historical or contemporary authority that involves facts closer to those at bar and where the petitioner succeeded under the Takings Clause." Slip op. at 11. And apparently, there is "historically oriented legal scholarship" that shows that the "'necessity' or 'emergency' privilege has existed in Takings Clause jurisprudence since the Founding." Slip op. at 12. [Barista's note: our own contribution to the legal scholarship was somehow overlooked by the court - the nerve!]
Read the court's journey through the history for more. See slip op. at 12-17.
The bottom line: if the invasion by Five-O was necessary, then no taking. And here, Baker acknowledges that "it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons." Slip op. at 17.
But that's not the right question in these type of cases, is it? After all, the central question isn't necessity, but of cost spreading. The court acknowledged that the core vibe of takings is the Armstrong principle:
[T]he Supreme Court has often stated that “[t]he 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.” Armstrong v. United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. This statement’s relevance to Baker, who is faultless but must “alone” bear the burdens of a misfortune that might have befallen anyone, is manifest.
Slip op. at 18. In short, although it acknowledges that Baker alone is bearing the cost for a public good, the Fifth Circuit washes its hands of the most important question: is it just and fair that this is so? To the Fifth Circuit, history says yes.
And this leads to the opinion ending on what appears to be another silver lining, the Fifth Circuit seemingly inviting a cert petition asking what it views as the only court capable of making that call:
As a lower court, however, it is not for us to decide that fairness and justice trump historical precedent, particularly Supreme Court precedent, where it has long recognized a necessity exception that excludes those like Baker from the protection of the Fifth Amendment’s Takings Clause. Such a decision would be for the Supreme Court alone.
Id.
Will one be forthcoming? We sure wouldn't bet against it.
Baker v. City of McKinney, No. 22-40644 (5th Cir. Oct. 11, 2023)