Dave Hunnicutt
Who Should Pay When The Police Destroy The Home Of An Innocent Homeowner?
Imagine this – you’re sitting at home watching TV when an armed intruder breaks into your home. You manage to escape and call 911, and the city police quickly surround the home. In the course of resolving the standoff, the police cause significant damage to your home and its contents, and kill the intruder.
In that situation, who should pay the cost to replace and repair the damage to your home – you or the city? If you said the city, you’d be wrong, at least in Texas.
The case at hand.
In Baker v. City of McKinney, the U.S. 5th Circuit Court of Appeals recently held that a City has no duty under the Takings Clause to compensate a property owner when the City causes damage to private property in an effort to prevent a dangerous situation from becoming worse.
In Baker, the McKinney Police Department surrounded Baker’s home, where a kidnapping suspect was holding a 15 year old girl hostage. The suspect had knocked on the door, and Baker’s daughter, who was in the home at the time, recognized him from the news and knew he was a dangerous fugitive.
Thinking quickly on her feet, the daughter told the kidnapper that he was free to come in, but she was on her way to the store and she’d be back soon. As soon as she got to her call, the daughter called 911 and the police quickly arrived.
The police were able to convince the kidnapper to release the hostage, but he would not come out. As a result, the police were forced to use grenades, an armored vehicle, and toxic gas. The suspect eventually committed suicide, and the crisis ended.
City leaves home damaged and skirts liability.
Unfortunately, as a result of the standoff, Baker’s home suffered damage of nearly $60,000. The City refused to pay, so Baker filed a lawsuit.
The City claimed that the government is never liable for damage when it destroys private property by necessity to prevent an immediate emergency. The City compared the situation to the destruction of a row of homes in a neighborhood to stop the spread of a fire that threatens to destroy large parts of the city.
In emergency situations, the City argued that the property owners have to pay for the loss, even though they’ve done nothing wrong, the City intentionally damaged or destroyed their home, and most homeowner’s insurance policies will not cover damages.
In short, even though the City acknowledged that Baker would suffer, she must lose.
Homeowner claims government taking.
Baker argued that the Takings Clause of the Fifth Amendment to the United States Constitution required the City to pay her for the damages they caused. She argued that while she certainly appreciated the police efforts to protect the community safety, she should not be singled out to bear the costs of those efforts, and that it was fair that the taxpayers share in the cost of that protection, since the entire community benefitted from the police activity.
The U.S. District Court for Eastern Texas disagreed with the City and agreed with Baker that the City’s actions resulted in a taking of her property for which compensation was required. The City appealed the court’s ruling to the 5th Circuit, and the appeals court reversed the trial court and agreed with the City.
According to the 5th Circuit, an exemption to the Takings Clause exists in situations where a government must act immediately to prevent an emergency. Even in situations where the damage is nearly total, such as the destruction of a series of homes to stop the spread of a wildfire, the government is not liable for the damage they cause.
The appeals court was quick to note, however, that the emergency necessity exception to the Takings Clause had been panned by legal scholars because of the extensive harm that it places on a single property owner, who is asked to bear the entire burden for a public benefit. The Court noted that the United States Supreme Court had expressly held that the Takings Clause was intended to be a guarantee that bar government from doing just that.
Fortunately, this case isn’t finished. Baker’s attorneys have asked the Supreme Court to review the case, and it is very possible that the Court will take the case and provide further clarity. We hope they do.
The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.