A woman who had the misfortune of hosting in her home a standoff between a fugitive and McKinney police is not entitled to any compensation for the damage caused by authorities, the Fifth Circuit recently determined.
Vicki Baker had been awarded $60,000 in damages in a final judgment entered by U.S. District Judge Amos L. Mazzant in June 2022 following a jury trial. But the Fifth Circuit held that despite having “sympathy” for Baker, “on whom misfortune fell at no fault of her own,” she was not entitled to compensation in this instance under the Fifth Amendment’s takings clause because it was “objectively necessary” for police to damage or destroy her home in order to prevent “imminent harm.”
“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,” the panel held.
The city of McKinney appealed Judge Mazzant’s ruling in September 2022, and urged the Fifth Circuit to adopt a rule that when property is damaged or destroyed because of the exercise of police powers, no Fifth Amendment taking has occurred.
“We decline,” the panel wrote in its Oct. 11 opinion, explaining that such a rule runs afoul of Fifth Circuit precedent and that Supreme Court precedents “cast doubt” on the city’s proposed rule.
“The city’s proposed rule is an exceptionally broad exclusionary rule,” the panel wrote. “And it is broader than any rule necessary to decide this case.”
Quoting from the U.S. Supreme Court’s 1960 holding in Armstrong v. United States, the Fifth Circuit wrote that the high court has “often stated” that the takings clause is intended “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.”
“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,” the panel wrote. “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.”
According to court documents, Baker had already retired and moved to Montana when the seven-hour standoff occurred in July 2020. Her adult daughter was preparing Baker’s McKinney home for sale and living there when Wesley Little — a fugitive who evaded cops in a “very fast” Corvette and had taken a 15-year-old girl as his hostage — knocked on the door.
Baker’s daughter, Deanna Cook, recognized Little both from a Facebook post alerting residents he was on the run and from a year earlier when he did some handyman work inside Baker’s home.
Little asked to come inside and asked if he could put his car in the garage.
“Cook recognized the girl and, though frightened, formulated a plan to help: She agreed to let Little into the house, but then told him, falsely, that she had to go to the supermarket. Once away from the house, she called Baker and described the situation, and Baker called the police,” the opinion explains.
Police soon arrived and established a perimeter around the home.
Little released his hostage but continued the standoff with officers for hours.
Police used an armored vehicle, explosives and “toxic gas grenades” to try and end the standoff.
Eventually, police used a drone and discovered Little had killed himself inside the home.
Baker filed this lawsuit in March 2021.
A Colorado couple, Leo and Alfonsina Lech, filed an amicus brief in the case detailing for the court their own experience when police pursuing an armed shoplifting suspect destroyed their home.
“This court should affirm the district court,” the Lechs told the court. “This brief illustrates the devastating alternative: innocent homeowners are left without recourse if the police destroy their home. This is inconsistent with the takings clause — which specifically prohibits government takings without just compensation — and is fundamentally unjust.”
In June 2015 a man suspected of shoplifting from Walmart broke into the Lechs home where a 19-hour standoff ensued. The suspect fired at officers, who responded by using explosives, tear gas and an armored vehicle to “open multiple holes in the home,” eventually apprehending the gunman.
Their home was declared a total loss and unsafe to occupy by the city. They were offered $5,000 in damages and then filed suit alleging they were entitled to just compensation for the loss of their home under the takings clause of the Fifth Amendment.
In 2019 the Tenth Circuit ruled against the Lechs, holding that because the actions of the police were “within the scope of police power” and because such actions “do not constitute takings,” they were entitled to nothing.
In their amicus brief, the Lech’s said “the authority by which the government takes a home is irrelevant to the homeowner.”
“The Lechs were innocent homeowners with the bad luck to have a suspected shoplifter break into their home,” the brief reads. “The police destroyed their home but did not have to compensate them at all. The public benefitted, but only the Lechs bore the significant costs — which is exactly what the takings clause prohibits.”
While their own suit was unsuccessful, the Lechs told the Fifth Circuit it should affirm Judge Mazzant’s ruling in favor of Baker.
“To categorically prohibit recovery in this case would force innocent homeowners to endure severe financial hardship through no fault of their own,” the brief argues. “The public benefits, and the individual homeowner alone suffers. This is unconstitutional and simply unjust.”
The Fifth Circuit wrote that the Tenth Circuit’s holding in the Lech case — one that the city pointed to in urging adoption of its “broad rule” — doesn’t rely on “history, tradition or historical precedent, and moreover, the rule they adopt is inconsistent with our court’s precedent.”
Turning to history, the Fifth Circuit said, case law has long supported the idea that there is a “necessity” or “emergency” exception to the takings clause dating back to 1788 in Respublica v. Sparhawk when the Pennsylvania Supreme Court declined to compensate the owner of 227 barrels of flour that had been moved by the government to a depot and were later “lost to the British.”
That case, the panel wrote, “articulates what appears to have been a guiding rationale for this common law necessity exception: the fear that if the state risks liability for the damage or destruction of property during a public emergency, then the state may not be so quick to damage or destroy it, and such hesitancy risks catastrophe.”
“In sum, history, tradition, and historical precedent reaching back to the founding supports the existence of a necessity exception to the takings clause,” the panel wrote. “Today, we make no attempt to define the bounds of this exception. We hold only that in this case, the takings clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself claims, it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons.”
Judges Stephen A. Higginson, Don R. Willett and Jerry E. Smith sat on the panel.
Baker is represented by Jeffrey H. Redfern, William R. Aronin, Robert McNamara and Suranjan Sen of Institute for Justice.
McKinney is represented by Edwin Voss Jr. of Brown & Hofmeister.
The case number is 22-40644.