Here’s the latest in a case we’ve been following with keen interest

Yesterday, the Supreme Court denied certiorari in Baker v. City of McKinney, the case where municipal police severely damaged a home in the course of extracting a criminal suspect, after which the owner successfully sought just compensation for a taking. All good, until the Court of Appeals got it. Here’s the district court’s opinion finding a taking. (As we noted in this brief in an earlier similar case, homeowner’s insurance generally does not provide coverage for damages caused by government.)

And here’s the Fifth Circuit’s opinion reversing, concluding (correctly) that there is not a categorical “police power” exception to takings liability, but also that just compensation is not required when the government action and the resulting damage is “objectively necessary” for public safety.

Teed up that way, we thought this one had a chance. But alas, the Cert Fairy left a lump of coal under the pillow.

Perhaps a silver lining to the denial, however: two Justices (Sotomayor joined by Gorsuch – kind of an odd combination) issued a statement noting that the issues in the case, if refined and presented in a different case, could be of interest to the Court.

The very interesting part of the Statement starts on page 3, where Justice Sotomayor writes:

I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual.

….

This Court has yet to squarely address whether the government can, pursuant to its police power,require some individuals to bear such a public burden. This Court’s precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable.

Statement at 3-4.

Note the two cases cited by Justice Sotomayor next: Bowditch v. Boston, 101 U.S. 16 (1879), and United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952), which “do not resolve Baker’s claim …  because the destruction of her property was necessary, but not inevitable.” Statement at 5. In both Bowditch and Caltex, the destruction of the plaintiff’s property was pretty certainly going to happen anyway (in Bowditch by fire, by Caltex by the advancing Imperial Japanese Army — the “fortunes of war,” as the Court put it). The government blowing up the properties in these cases only hastened the inevitable. For more on these cases and the “inevitable” vibe, see the amicus brief our outfit (Pacific Legal Foundation) submitted.

Also worth checking out is Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), where the Court held that commandeering property to prevent it from falling into the hands of the enemy in war was not a taking as long as the danger is “immediate and impending,” and waiting around for civil authority would be too late.

We wrote about these cases and the notion that even a compelling police power reason isn’t alone enough to avoid takings liability and the Armstrong redistribution principle, and similar in our article, “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).

Justice Sotomayor continued, “Whether the inevitable-destruction cases should extend to this distinct context remains an open question.” Statement at 5. The Statement also points out the lower court split in reasoning (but not outcome), and concludes:

All those decisions, save the Sixth Circuit’s, however, predate the Fifth Circuit’s determination that there is an “objectively necessary” exception to the Takings Clause. Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.

Statement at 6.

Count is intrigued.  

Statement of Justice Sotomayor, with whom Justice Gorsuch joins, respecting denial of certiorari, Baker v….