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Police not liable for damage from armored vehicles, explosives and gas

As long as suspects hide or circumstances warrant no-knock actions, there will be property damage

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Isabel Slepoy/New York Daily News

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Baker v. City of McKinney, 2023 WL 6619477 (5th Cir. 2023)

Police were looking for Wesley Little, who was on the run with a 15-year-old girl. Little had successfully evaded police on a wild pursuit behind the wheel of a Corvette. He drove to Vicki Baker’s home and knocked on the door. Deanna Cook, Baker’s adult daughter, recognized Little; she had seen a Facebook post alerting that Little was on the run with a “runaway” he had allegedly kidnapped. Little had done some work for Baker at the house more than a year before, but Baker fired him after some of Little’s comments made Cook uncomfortable.

Little asked to come in, put his car in the garage and hide out in the house. Cook recognized the girl and agreed to help Little, despite being afraid of him. After Cook let Little into the house, she told him she had to go to the market. Cook then called Baker and described the situation; Baker called the police.

Officers surrounded the house and called Little out. He released the girl but refused to come out himself. The girl told police, “He’s in the ceiling; she had pulled down the attic so he could get up there; they had a lot of long guns, some pistols; and that he was obviously high on methamphetamine.” Little told police he “had terminal cancer, wasn’t going back to prison, knew he was going to die, was going to shoot it out with the police.”

When negotiations failed, officers used noise-flash distraction devices, two armored vehicles, gas grenades and a drone to try to resolve the situation. Eventually, with the assistance of the drone, officers saw Little had killed himself.

The explosions left Baker’s dog permanently blind and deaf. The toxic gas residue required hazardous materials remediation specialists. Furniture and appliances were destroyed. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), bricks, windows, blinds, the fence, the front door and the garage door all needed to be replaced. The entire personal property contents of the house were destroyed. The damage was estimated at $50,000.

Baker sued, alleging the Fifth Amendment Takings Clause entitled her to compensation for property “taken” by the government. The Takings Clause of the Constitution states private property shall not “be taken for public use, without just compensation.” Baker did not fault the police. To the contrary, her attorney emphasized, “There was some really good police work here,” it “was a successful operation,” “everyone followed procedure” and “everyone did what they were supposed to do.” The attorney said the officers acted irreproachably and the severe damage “was necessary. No issue there.” Baker’s insurance refused to pay for intentional damage caused by the police and the city refused to pay for any of the damage.

Though the extent of the damage to Baker’s home might have been exceptional, it is not uncommon for tactical teams to damage or destroy private property during the course of an operation. Often, a search or arrest warrant is served at a rental property. The suspect goes to jail, defaults on the lease and the property owner is left with a bill to repair damage from breached doors or windows or damage from munitions. Though the suspect is responsible, we all know what happens when you try to get blood out of a turnip.

Just before trial, the city offered to settle with Baker for the full amount due for the damage. She refused, insisting on both payment and a police department policy change to prevent similar incidents in the future. The trial went forward and a jury found in Baker’s favor. The city appealed.

The appellate court reversed and remanded. The court held 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 had conceded “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.”

Though the Supreme Court could change its interpretation of the Takings Clause, it isn’t likely. Obviously, officers should always do their best to avoid private property damage. But as long as suspects hide or circumstances warrant no-knock actions, there will be property damage. It may be cheaper to fix a door or replace a window than to litigate. But as Baker’s situation illustrates, when it is objectively necessary for officers to damage or destroy property to ensure public safety, the Takings Clause will not require government compensation for the damage.

Read more Ken Wallentine case reviews here.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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