Customer Co. v. City of Sacramento

BAXTER, J., Dissenting.

Plaintiff’s sound and valuable store premises were physically damaged, and its entire stock of lawful and wholesome merchandise was effectively destroyed, when the police, having trapped a suspected armed and dangerous felon inside, fired tear gas into the store to force his surrender. Plaintiff concedes that the authorities may have acted reasonably, and that their conduct may be immune by statute from a lawsuit sounding in tort. Nonetheless, plaintiff contends that reimbursement is due under article I, section 19, of the California Constitution (hereafter sometimes article I, section 19), which provides that “[p]rivate property may be taken or damaged for public use only when just compensation . . . has . . . been paid to . . . the owner.” (Italics added.)

Plaintiff’s constitutional claim was rejected by the lower courts, and the majority here affirm that result. They hold that the requirements of article I, section 19, apply only to the government’s exercise of its eminent domain power. Hence, they reason, the clause never requires compensation for physical damage inflicted by legitimate exercises of the police power, never when the government’s action was compelled by “emergency” or “necessity,” and never where the mere negligence of public employees may be at issue.

Neither the majority’s premise nor its conclusions can be sustained. Both the specific language of article I, section 19, and the modem history of the just compensation requirement imply that when the government deliberately chooses the physical sacrifice of unoffending private property in order to achieve a public purpose, its obligation to pay compensation does not depend upon whether its conduct was tortious, or upon arbitrary distinctions between the eminent domain and police powers. Moreover, any legitimate basis for an “emergency exception” is not established where, as here, the government itself was a substantial cause of the emergency. I therefore dissent.

*405 I.

As the majority acknowledge, the physical and chronological facts are not in substantial dispute. The majority recite in detail the sequence of events during the standoff with the suspect, apparently to demonstrate why a tear gas barrage was necessary to end the confrontation. However, the majority give shorter shrift to the events which caused the suspect to barricade himself inside the store. These events, I submit, show the degree to which acts and decisions by the law enforcement agents themselves helped precipitate the crisis.

For some considerable period of time, officers of the Sacramento County Sheriff’s Department (County) and the Sacramento Police Department (City) had suspected Christopher Nash of participation in a series of armed robberies. An informant had advised that Nash might be driving a stolen vehicle, that he was constantly armed, that “he would shoot it out with law enforcement if he had to,” and that he was committing bizarre and violent acts while at large.

On Friday, June 19, 1987, three days before the incident at plaintiff’s store, the authorities learned that the 1986 Camaro Nash was driving had license plates registered to another auto. On that day, an unmarked City police car followed Nash in the Camaro, intending to stop him on suspicion of vehicle theft, but Nash apparently eluded the pursuing officer.

No further action was taken until the following Monday. As Deputy Sheriff Chapman stated in his deposition, this was “probably” because the officers assigned to the case had the weekend off. On Monday morning, June 22, 1987, Chapman took up surveillance of the house where Nash was believed to be staying. The Camaro was parked in the driveway. Nash and his girlfriend, Violet Nelson, emerged from the house and entered the Camaro. Nash backed out of the driveway and sped away. Chapman followed in his unmarked car and called his dispatcher for backup. He intended to stop Nash for vehicle theft once joined by his partner, Deputy Powell, who was assigned to another unmarked vehicle in the vicinity.

However, Chapman’s radio call apparently received a wider broadcast than he intended. As a result, several marked and unmarked units, from both City and County, proceeded toward Chapman’s location. Meanwhile, before Chapman himself could overtake the Camaro, Nash pulled into the parking lot of plaintiff’s store, Rogers Food & Liquor. Nash and Nelson went inside to make purchases. Chapman parked on the street nearby, radioed his location, and asked again for backup. He intended to arrest Nash, with Powell’s assistance, after Nash had left the store.

*406 The several units now involved in the chase converged at the scene. The unmarked cars, and at least one of the marked vehicles, parked on the street and waited. However, two marked police cars, one from City and one from County, sped forward and into the store parking lot. At least one of these vehicles had its police lights flashing. The store clerk noticed the activity and thought he saw police officers pointing their weapons into the Camaro. He advised Nelson to duck behind the counter with him in order to avoid possible gunfire.

Thus alerted to the police presence, Nash attempted to leave by the rear door, but retreated when he saw that the building was surrounded. Nash then allowed Nelson and the clerk to leave the store, but refused to surrender himself. Thus the standoff began.

II.

The majority and I agree on one point: the issue before us is of first impression in this state and unsettled elsewhere. California courts have never been called upon to determine whether the constitutional requirement of just compensation applies to the government’s purposeful physical destruction of private property in furtherance of law enforcement activities. The few applicable decisions from other jurisdictions contain no consistent reasoning or result.

The majority suggest, however, that because California courts have never applied the just compensation clause to crime-fighting damage, it does not so apply. Hence, they reason, nonconstitutional remedies, which the Legislature may grant or withhold at will, are the damaged owner’s sole recourse. But neither the language of the constitutional provision, nor its jurisprudential history, supports these illogical conclusions.

The majority assert at length that article I, section 19, applies only in the traditional realm of eminent domain—that is, where the government physically takes or damages property in the construction, operation, or maintenance of a “public improvement”—or to regulations which are the “functional equivalent” of condemnation. Their analysis is unpersuasive.

At the outset, the straightforward language of article I, section 19, calls for “just compensation” whenever the government “take[s] or damage[s]” private property “for public use.” By their plain meaning, the broad terms “take,” damage,” and “public use” appear to apply regardless of the powers under which government purports to act, the goals it seeks to achieve, or the circumstances in which injury is inflicted.

*407 The majority observe that the language of article I, section 19, read in full, particularly prohibits a taking or damaging before the “condemnor” has begun “eminent domain proceedings” and has paid or deposited in court at least the “probable amount” of just compensation. Thus, the majority assert, the words of the clause actually demonstrate that it is “most directly” concerned with the state’s exercise of its traditional condemnation power. 1

However, this cited language merely proves a truism. The clause does obviously apply to “traditional” exercises of eminent domain, and in such cases the government must pay, or formally condemn and deposit, before a physical taking or damaging occurs. But nothing in the section states or implies the converse, i.e., that just compensation is due only where traditional eminent domain proceedings are possible or appropriate. 2

The majority admit that by adding the critical words “or damaged” to article I, section 19 (cf. Cal. Const, of 1849, art. I, § 8; U.S. Const., Amend. V), the drafters of the 1879 Constitution intended to broaden the scope of constitutional relief even beyond strict physical invasion or injury. (See, e.g., Reardon v. San Francisco (1885) 66 Cal. 492, 501 [ 6 P. 317 ].) The majority nonetheless suggest that the sole purpose of the added language was to require compensation for certain kinds of consequential damage arising from a public improvement project. They quote from the debates of the 1878 Constitutional Convention to show that the drafters were particularly concerned about the effects of railroad and street improvements upon physical access to adjacent land in private ownership.

Again, however, the language of the 1879 Constitution discloses no such limitation. That the convention’s delegates used contemporaneous examples to illustrate why the additional protective language was needed does not demonstrate that the protection applies only to injuries of that kind. (See Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 364, fn. 20 [ 27 Cal.Rptr.2d 613 , 867 P.2d 724 ].)

Finally, the majority assert that the California cases “uniformly [refute]” the expansive interpretation of article I, section 19, for which plaintiff *408 argues. In support of this proposition, the majority cite some of the many decisions which discuss how the just compensation clause applies to damage caused by the construction, operation, or maintenance of public improvements. Not surprisingly, the analyses and holdings of these cases are expressed in that context. (See, e.g., Holtz v. Superior Court (1970) 3 Cal.3d 296 [ 90 Cal.Rptr. 345 , 475 P.2d 441 ]; Albers v. County of Los Angeles (1965) 62 Cal.2d 250 [ 42 Cal.Rptr. 89 , 398 P.2d 129 ]; Bauer v. County of Ventura (1955) 45 Cal.2d 276 [ 289 P.2d 1 ]; Bacich v. Board of Control (1943) 23 Cal.2d 343 [ 144 P.2d 818 ]; Brown v. Board of Supervisors (1899) 124 Cal. 274 [ 57 P. 82 ]; Tyler v. Tehama County (1895) 109 Cal. 618 [ 42 P. 240 ]; Reardon v. San Francisco, supra, 66 Cal. 492.)

However, these decisions neither state nor imply that the just compensation clause applies only to public improvements, or to eminent domain as traditionally understood. Nor do the authoritative modem cases, California or federal, support the outmoded view that government is exempt from payment for any and all physical damage inflicted by a valid exercise of the police power.

Indeed, persuasive current authority makes clear that the reach of the just compensation clause is determined by its fundamental purposes and policies, not by arbitrary categories and labels. When those purposes and policies are examined, they disclose no sound basis for excluding all deliberate physical property damage inflicted by public crime-fighting activities from the constitutional requirement of just compensation.

It is now well settled that the government’s constitutional liabilities are not limited by the common law rights and duties of private parties, and they do not depend upon whether the government acted negligently, unreasonably, or ultra vires. (E.g., Holtz v. Superior Court, supra, 3 Cal.3d 296, 303 ; Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 257 ; Reardon v. San Francisco, supra, 66 Cal. 492, 505.) Nor are they affected by statutory immunities, such as those for discretionary government acts (e.g., Gov. Code, § 820.2) and for law enforcement actions taken with due care (id., § 820.4). (See Baldwin v. State of California (1972) 6 Cal.3d 424, 438 [ 99 Cal.Rptr. 145 , 491 P.2d 1121 ]; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575, fn. 3 [ 136 Cal.Rptr. 751 ].)

Instead, the just compensation clause ensures that when government exercises its valid and necessary power to take or damage private property for public benefit, the adversely affected owner will not absorb alone a cost which the benefitted community should share. As the United States Supreme Court recently reaffirmed, the provision “is designed not to limit . . . *409 governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. . . .” (First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 315 [ 96 L.Ed.2d 250, 264 , 107 S.Ct. 2378 ], italics in original.) Its function is “ ‘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.’ ” (Id. at pp. 318-319 [ 96 L.Ed.2d at p. 266 ], quoting Armstrong v. United States (1960) 364 U.S. 40, 49 [ 4 L.Ed.2d 1554, 1561-1562 , 80 S.Ct. 1563 ]; accord, Dolan v. City of Tigard (1994) 512 U.S. _ , _ [ 129 L.Ed.2d 304, 315-316 , 114 S.Ct. 2309 ].)

Our own cases agree. We have stressed that the limits of inverse condemnation liability in California do not derive from common law principles, but from “the construction, ‘as a matter of interpretation and policy’ ([Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 262 ]), of our constitutional provision. The relevant ‘policy’ basis of article I, section [19], was succinctly defined in Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 [ 220 P.2d 897 ]: ‘The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.' In other words, the underlying purpose of our constitutional provision in inverse—as well as ordinary—condemnation is ‘to distribute throughout the community the loss inflicted upon the individual by [the public enterprise as deliberately conceived]’ (Bacich v. Board of Control (1943) 23 Cal.2d 343 , 350 . . .): ‘to socialize the burden . . . —to afford relief to the landowner in cases in which it is unfair to ask him to bear a burden that should be assumed by society’ (Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis.L.Rev. 3, 8).” (Holtz v. Superior Court, supra, 3 Cal.3d 296, 303 , italics added; see also Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 296 [ 142 Cal.Rptr. 429 , 572 P.2d 43 ].)

Of course, competing considerations limit the literal reach of the constitutional provision. It is well settled that not every governmental interference with private property is either compensable or void. “Government could hardly go on” if the Constitution prohibited it from taking any uncompensated action at the expense of private property. (Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 413 [ 67 L.Ed. 322, 325 , 43 S.Ct. 158 , 28 A.L.R. 1321 ].) We ourselves have acknowledged the concern that the costs imposed by “ ‘compensation allowed too liberally will seriously impede, if not stop,’ ” beneficial public undertakings. (Varjabedian v. City of Madera, supra, 20 Cal.3d 285, 296 , quoting Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 263 , and Bacich v. Board of Control, supra, 23 Cal.2d 343, 350 .)

*410 Each claim must be examined with these competing concerns in mind. The task is to determine whether, under the particular circumstances, the constitutional purpose would be violated by allowing the community at large to escape the cost of damage its government, acting for the public benefit, has inflicted upon an individual property owner. (Varjabedian v. City of Madera, supra, 20 Cal.3d 285, 296-297 .)

The requirement of compensation is not eliminated simply because the government purports to act under the police power. On the contrary, as the United States Supreme Court has pointed out, the power of government to take with compensation for a “public use” is “coterminous with the scope of a sovereign’s police powers.” (Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229, 240 [ 81 L.Ed.2d 186, 197 , 104 S.Ct. 2321 ], italics added.) Regulatory exercises of that power have long been examined under the just compensation clause, and may accordingly be invalid if they go too far in damaging the value, use, or physical integrity of individual property without offering its owner payment for the loss. The high court recently reemphasized that “[i]f ... the uses of private property were subject to unbridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared].’ ” (Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003 , _ [ 120 L.Ed.2d 798, 812 , 112 S.Ct. 2886 ], quoting Penna. Coal Co. v. Mahon, supra, 260 U.S. 393, 415 [ 67 L.Ed. 322, 325-326 ].)

Given the infinite ways in which the operations of modem government can affect private property, recent high court decisions have not depended upon whether a particular regulatory measure was the “functional equivalent” of eminent domain. They have “generally eschewed any ‘ “set formula”’ for determining” when a regulatory measure goes too far without compensation, preferring instead “ ‘essentially ad hoc, factual inquiries.’ ” (Lucas v. So. Carolina Coastal Council, supra, 505 U.S. at p. _ [ 120 L.Ed.2d at p. 812 ], quoting Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [ 57 L.Ed.2d 631, 648 , 98 S.Ct. 2646 ].) They make clear, however, that regardless of the context, subject, purpose, or design of the regulation, it is void if, without providing compensation, it compels any physical invasion of private property, denies the owner all economically viable use, or imposes substantial restrictions which have no “essential nexus” to a legitimate state interest. (Dolan v. City of Tigard, supra, 512 U.S. _ , _ [ 129 L.Ed.2d 304, 317-323 ]; Lucas v. So. Carolina Coastal Council, supra, 505 U.S. at p. _ [120 L.Ed.2d at pp. 812-813]; see also Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 426, 435-440 [ 73 *411 L.Ed.2d 868, 876, 882-885 , 102 S.Ct. 3164 ].) 3 Again, California law is in substantial accord. (See, e.g., Agins v. City of Tiburon (1979) 24 Cal.3d 266, 272-277 [ 157 Cal.Rptr. 372 , 598 P.2d 25 ] [zoning ordinance which deprives landowner of “substantially all reasonable use of his property”].) 4

The majority imply, however, that in California, “legitimate” exercises of the police power which cause direct physical invasion, damage, or destruction are never compensable. While an older case from this court and some lower court decisions have advanced that premise, either expressly or implicitly (see, e.g., Gray v. Reclamation Dist. No. 1500 (1917) 174 Cal. 622, 639-642 [ 163 P. 1024 ]; Brown v. State of California (1993) 21 Cal.App.4th 1500, 1504-1505 [ 26 Cal.Rptr.2d 687 ]; Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 501 [ 221 Cal.Rptr. 225 ]; see Freeman v. Contra Costa County Water Dist. (1971) 18 Cal.App.3d 404, 408 [ 95 Cal.Rptr. 852 ]), precisely the opposite is true. In modem times, this court, like the United States Supreme Court, has made clear that the government’s physical invasion of property strikes at the heart of the just compensation clause, and that the police power to commit an uncompensated physical invasion is particularly narrow.

Thus, in House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384 , we explained that “ ‘[t]he state or its subdivisions may take or damage private property without compensation if such action is essential to safeguard public health, safety, or morals. [[C]iting authorities.] In certain circumstances, however, the taking or damaging of private property for such a *412 purpose is not prompted by so great a necessity as to be justified without proper compensation to the owner. [[C]iting authorities.] ’ Thus ... the exercise of the police power, though an essential attribute of sovereignty for the public welfare . . . cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property.” (Id. at pp. 388-389, quoting Archer v. City of Los Angeles, supra, 19 Cal.2d 19, 23-24 , italics added by House.)

In a later decision, we admonished that any direct physical damage which might be rendered noncompensable by the police power was limited to certain kinds of true emergency. “As we explained fully in Rose v. State of California (1942) 19 Cal.2d 713, 730-731 [ 123 P.2d 505 ], the ‘police power’ doctrine ‘[g]enerally . . . operates in the field of regulation,’ rendering ‘damages’ occasioned by the adoption of administrative or legislative provisions noncompensable [citations]; this doctrine of noncompensable loss comes into play in connection with more direct ‘taking’ or ‘damaging’ of property only under ‘emergency’ conditions; i.e., when damage to private property is inflicted by government ‘under the pressure of public necessity and to avert impending peril.’ ([House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 391 ].) Recognizing that a broad interpretation of this doctrine of noncompensable loss would completely vitiate the constitutional requirement of just compensation [citation], the courts have narrowly circumscribed the types of emergency that will exempt the public entity from liability. [Fn. omitted.]” (Holtz v. Superior Court, supra, 3 Cal.3d 296, 305 , italics added; see also Varjabedian v. City of Madera, supra, 20 Cal.3d 285, 297 [noting “those core cases of direct physical invasion which indisputably require compensation”].)

In a footnote, Holtz v. Superior Court, supra, quoted a well-known passage containing examples of government acts that might satisfy an “emergency” exception: “ ‘Instances of this character are the demolition of all or parts of buildings to prevent the spread of conflagration, or the destruction of diseased animals, or rotten fruit, or infected trees where life or health is jeopardized.’ ” ( 3 Cal.3d at p. 305, fn. 10 , quoting House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 391.) Both the limited nature of these illustrative exceptions, and their irrelevance to the subject of public works and improvements, demonstrate the breadth of the general rule of compensation.

Several modem Court of Appeal decisions are to similar effect. For example, in Rose v. City of Coalinga (1987) 190 Cal.App.3d 1627 [ 236 Cal.Rptr. 124 ], the court upheld an inverse condemnation action seeking compensation for the summary demolition of a building which city officials *413 deemed unsafe after an earthquake. The court reasoned that an action for inverse condemnation will lie when “a governmental body, in the exercise of its police power to protect the public health, safety and welfare, intentionally destroys an owner’s property in the absence of an emergency and compelling necessity and without according to the owner due process. . . .” (Id. at p. 1634.) Conversely, emergency, not mere exercise of the police power, provided the grounds for denial of compensation for physical damage to crops and other property caused by state efforts to eradicate an invasion of the Mediterranean fruit fly (Medfly). (Teresi v. State of California (1986) 180 Cal.App.3d 239, 243-244 [ 225 Cal.Rptr. 517 ]; Farmers Ins. Exchange v. State of California, supra, 175 Cal.App.3d 494, 501-503 .) 5

The majority invoke the principle that injury to property caused by the mere negligence of public employees is not a taking or damaging for “public use,” and is thus not subject to the constitutional requirement of just compensation. (E.g., Yee v. City of Sausalito (1983) 141 Cal.App.3d 917, 920 [ 190 Cal.Rptr. 595 ]; Eli v. State of California (1975) 46 Cal.App.3d 233, 235 [ 120 Cal.Rptr. 63 ]; Neff v. Imperial Irrigation Dist. (1956) 142 Cal.App.2d 755, 757-758 [ 299 P.2d 359 ]; see Miller v. City of Palo Alto (1929) 208 Cal. 74, 76-77 [ 280 P. 108 ].) They stress our declarations, in cases dealing with public works or improvements, that the damage must stem from the improvement itself, as deliberately planned and constructed, not from negligence in the routine operation of the improvement. (See, e.g., Holtz v. Superior Court, supra, 3 Cal.3d 296, 304 ; Bauer v. County of Ventura, supra, 45 Cal.2d 276, 286 ; House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 396 (conc. opn. of Traynor, J.).)

In particular, the majority note a recent United States District Court decision, Patel v. U.S. (N.D.Cal. 1993) 823 F.Supp. 696 , which addressed facts somewhat analogous to those now before us. Patel concluded as a *414 matter of law that when police severely damaged a residence in order to serve a search and arrest warrant on the occupants, they committed, at most, mere routine negligence in day-to-day operations, for which compensation was not due under article I, section 19. (823 F.Supp. at pp. 697-699.)

But Patel's premise, like the majority’s here, is simply wrong. Neither Patel nor this case is about routine government carelessness. On the contrary, in both instances, the government chose its damaging course of action, with full understanding of the probable injurious consequences, because it concluded that such action was necessary to achieve a public purpose—the surrender of persons wanted by the police. To paraphrase Justice Traynor, the damage to private property was “inherent,” indeed expected, in the public undertaking as deliberately designed and executed. (See House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 396 (conc. opn. of Traynor, J.).) 6

Finally, there is no other basis for a conclusion that the facts of this case fail to establish a taking or damaging for “public use.” We have said that a use is “public” insofar as it “concerns the whole community or promotes the general interest in its relation to any legitimate object of government. [Citation.]” Bauer v. County of Ventura, supra, 45 Cal.2d 276, 284 , italics added; see also City of Oakland v. Oakland Raiders, supra, 32 Cal.3d 60, 69 .) “ ‘It is not essential that the entire community, or even any considerable portion thereof,’ ” enjoy a direct benefit from the taking. (City of Oakland v. Oakland Raiders, supra, at p. 69 , quoting Fallbrook Irrigation District v. Bradley (1896) 164 U.S. 112, 161-162 [ 41 L.Ed. 369, 389-390 , 17 S.Ct. 56 ].) Indeed, “ ‘[i]t is irrelevant whether or not the injury to the property is accompanied by a corresponding benefit to the public purpose . . . , since the measure of liability is not the benefit derived from the property but the loss to the owner.’” (Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 263 , quoting House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 397 (conc. opn. of Traynor, J.).)

When a deliberate law enforcement action physically invades, destroys, or damages unoffending property, a “public use” has arisen by every logical measure. The authorities may be wholly entitled to act, and the owner has no *415 right to prevent them from doing so. The damage is inflicted on behalf of the “whole community,” by its representatives, for a public purpose. The public thereby “use[s]” and “enjoys” the damaged property just as in every case where deliberate government conduct undertaken for public benefit physically invades, destroys, or damages private property. Failure to compensate the owner under these circumstances may thus single it out for a burden which, under the Constitution, should be distributed throughout the benefit-ted society at large. 7

*416 As the majority concede, two of the three most recent analogous authorities from other states support these views. (Wegner v. Milwaukee Mut. Ins. Co. (Minn. 1991) 479 N.W.2d 38 [ 23 A.L.R.5th 954 ]; Steele v. City of Houston (Tex. 1980) 603 S.W.2d 786 .) In both cases, the homes of innocent persons were seriously damaged when the police used tear gas or explosive devices to flush out fugitives who had fortuituously taken shelter there. Though these decisions did not contain extensive reasoning, they deemed it manifest, under state constitutional language similar to California’s, that an individual owner may suffer an unfair and disproportionate burden if not compensated when the government inflicts physical damage upon his unoffending private property as the chosen means of accomplishing a public objective under the police power. 8

The majority find it “anomalous” that the government’s deliberate infliction of damage upon private property in service of a public goal might give rise to legal protections which would not apply to personal injury caused by the same action. But there is no doubt that for profound historical reasons, the California Constitution, like its federal counterpart, is peculiarly concerned with the power and temptation of unchecked government to decree the uncompensated sacrifice of private property for the common benefit. The availability of professional fees and prejudgment interest in inverse condemnation actions merely confirms that when the sovereign, having imposed such a sacrifice, declines to satisfy its constitutional obligation of compensation, the expense of exacting the payment due should not fall upon the hapless owner. I see nothing anomalous in the application of those principles to the facts of this case.

*417 I therefore conclude that article I, section 19, entitles plaintiff to reimbursement for physical damage inflicted by the deliberate police action, unless the particular facts of this case present a sound exception to the rule of compensation. I turn to that question.

III.

As the majority suggest, both state and federal law have recognized a limited number of specific situations where government, in the exercise of its police power, may take deliberate action for the public benefit without paying compensation for resulting physical damage or destruction to private property. Among the exceptions most commonly articulated are “nuisance,” and “emergency” or “necessity.” The courts have explained these exceptions, sometimes incompletely, on various theoretical and policy grounds. But in California it is now clear that unless the exceptions are narrowly circumscribed and strictly justified, the constitutional requirement of just compensation will be improperly “vitiate[d].” (Holtz v. Superior Court, supra, 3 Cal.3d 296, 305 .)

One well-settled limitation is the maxim that government may abate a nuisance without compensation. There is, of course, no constitutional right to maintain property in a dangerous or unwholesome condition. The United States Supreme Court long ago observed that “[t]he exercise of the police power by the destruction of property which is itself a public nuisance ... is very different from taking property for a public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.” (Mugler v. Kansas (1887) 123 U.S. 623, 669 [ 31 L.Ed. 205, 213 , 8 S.Ct. 273 ].)

One prominent commentary has suggested that the so-called “emergency” exception is justified solely on nuisance grounds. After reviewing the cases, this commentary deemed it “likely” that the Constitution requires compensation for deliberate physical destruction of property by the government unless the property was by then already so dangerous or endangered as the result of external events or conditions that its compensable value was lost in any event. (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 24, p. 147.)

Our own cases support that view by the examples they cite of noncompensable emergencies. “ ‘[T]he demolition of all or parts of buildings to prevent the spread of conflagration, or the destruction of diseased animals, or rotten fruit, or infected trees where life or health is jeopardized’ ” (Holtz v. Superior Court, supra, 3 Cal.3d 296, 305, fn. 10 , quoting House v. L.A. *418 County Flood Control Dist., supra, 25 Cal.2d 384, 391) all appear to involve property which has already lost its compensable value because it will likely cause, exacerbate, or fall victim to an external threat to public health, safety, or welfare.

Many, if not all, of the relatively few United States Supreme Court and California cases that actually purport to apply an “emergency” exception can comfortably be viewed in this nuisance context. (See, e.g., United States v. Caltex, Inc. (1952) 344 U.S. 149 [ 97 L.Ed. 157 , 73 S.Ct. 200 ] [wartime destruction of refinery about to fall to Japanese]; 9 Miller v. Schoene (1928) 276 U.S. 272 [ 72 L.Ed. 568 , 48 S.Ct. 246 ] [destruction of ornamental trees harboring pest ruinous to nearby commercial apple orchards]; United States v. Pacific R.R. Co. (1887) 120 U.S. 227 [ 30 L.Ed. 634 , 7 S.Ct. 490 ] [military demolition of railroad bridges in path of advancing Confederate forces]; Bowditch v. Boston (1879) 101 U.S. (11 Otto) 16 [ 25 L.Ed. 980 ] [building in path of urban conflagration]; Surrocco v. Geary (1853) 3 Cal. 69, 73 [house in path of spreading urban fire “becomes a nuisance, which it is lawful to abate”]; Rose v. City of Coalinga, supra, 190 Cal.App.3d 1627 [destruction of building rendered unsafe by earthquake]; Teresi v. State of California, supra, 180 Cal.App.3d 239 [destructive quarantine and fumigation of pepper crop which threatened to harbor and spread Medfly infestation]; cf. Farmers Ins. Exchange v. State of California, supra, 175 Cal.App.3d 494 [incidental damage from battle against Medfly invasion].) 10

However, the cases do not uniformly assert nuisance as the sole basis for an “emergency” exception, and they contain suggestions of a somewhat *419 broader reason for the existence of such a limitation. For example, in United States v. Caltex, Inc., supra, 344 U.S. 149 , the court cited “the common law[’s] . . . long recognition] that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved. [Fn. omitted.]” ( 344 U.S. at p. 154 [97 L.Ed. at p. 162].)

We ourselves have asserted that “under the pressure of public necessity and to avert impending peril, the legitimate exercise of the police power often works not only avoidable damage but destruction of property without calling for compensation. ... In such cases calling for immediate action the emergency constitutes full justification for the measures taken to control the menacing condition, and private interests must be held wholly subservient to the right of the state to proceed in such manner as it deems appropriate for the protection of the public health or safety. [Citation.]” (House v. L.A. County Flood Control Dist., supra, 25 Cal.2d 384, 391 .)

The cases imply, and the majority vigorously assert, that the exception is fueled by concerns about government’s ability to respond promptly and fully to a public health or safety threat without fear of unlimited liability for resulting property damage. This is no doubt a significant consideration; “[g]overnment could hardly go on” (Penna. Coal Co. v. Mahon, supra, 260 U.S. 393, 413 [ 67 L.Ed. 322, 325 ]) if the sovereign were strictly accountable for any and all damage caused by its emergency responses. But given the broad cost-spreading purposes of the just compensation clause, some means must be found to confine any “emergency” exception within narrow and appropriate bounds.

What principles can reconcile the competing considerations? As we have indicated, the law of nuisance may provide one such principle. Another has been suggested by the United States Supreme Court in cases of wartime destruction by military necessity to thwart an advancing enemy. In United States v. Caltex, Inc., supra, 344 U.S. 149 , the court observed: “The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war. This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, and not to the sovereign. [Fn. omitted.]” (344 U.S. at pp. 155-156 [97 L.Ed. at p. 163], italics added.) Earlier, in United States v. Pacific R.R. Co., supra, 120 U.S. 227 , the court *420 had asserted that such wartime losses are “merely accidents,” “misfortunes which chance deals out to the proprietors on whom they happen to fall.” ( 120 U.S. at p. 234 [ 30 L.Ed. at p. 637 ].)

By parity of reasoning, it may be appropriate to conclude, in other contexts as well, that all owners incur the risk of property damage from certain external human or natural events beyond their control. Under this analysis, when such external events force the government, on behalf of the whole community, to respond in ways that are the direct cause of damage, that damage is properly “attributed” to the external event itself, and not to the government’s necessary response. 11

As indicated above (ante, at p. 415, fn. 7), compensation may perhaps also be properly denied when the owner or occupant of the damaged property already received a significant, peculiar private service or benefit from the government’s action. For example, if damage was caused by police or paramedical officers while attempting to rescue an endangered householder, or by firefighters in an effort to save the injured property itself from the greater ravages of spreading flames, it seems doubtful that the damage was for a public use, or that compensation to the benefitted owner is “just.” In such cases, within the purposes of the Constitution, one might argue that the owner is not being forced to shoulder alone the cost of a public undertaking which should be shared by the community at large.

Finally, despite the majority’s worries about “stray bullet” damage, there may be grounds for concluding that the government is not liable for every kind of minor, incidental injury to property arising from its deliberate response to an emergency. As we have seen, it is already well established that “routine negligence” in government operations is not a constitutionally compensable taking or damaging for “public use.” A similar analysis may *421 apply to insubstantial, peripheral damage which arises from emergency government action that was not focused on the property for which compensation is sought.

Whatever the merits of these rationales for denial of compensation, however, they all at least assume that the emergency or nuisance was truly external, and not of the government’s own making. It is one thing to say that owners, not government, must bear the risk of losses arising from the injurious condition of their property, or from the government’s intervention against public dangers presented by the general forces of humanity or nature. It is another to suggest that government may escape liability when its own deliberate pursuit of its nonemergency public goals is directly responsible for the emergency that required damage or destruction to private property.

In the latter case, at least, the damage is properly “attributed” to the government, it has occurred “for a public use,” and if not compensated, it will impose an unfair and disproportionate cost of the public undertaking upon the affected owner. Accordingly, I submit, the Constitution must prevail over other considerations that might counsel immunity.

Indeed, in these circumstances, the policy reasons for such immunity largely evaporate. The government is not being held unfairly accountable for its response under the pressure of a crisis imposed by outside forces. It is simply being assessed for the true cost of the public enterprise in which, by its own choice, it was originally engaged.

IV.

It seems manifest under the principles I have discussed that compensation is due in this case. The authorities deliberately inflicted substantial injury upon plaintiff’s property as the chosen means of achieving certain public purposes under the police power. But the affected property itself harbored no preexisting public nuisance or injurious condition. Nor had a paramount danger, public or private, simply arisen from external events, forcing an unwitting government to respond. Instead, the “emergency” claimed by defendants, and the involvement of plaintiff’s store in that emergency, were the sole and direct result of the time, place, and manner in which defendants themselves decided to achieve the capture of a public enemy.

The entry of the marked police cars into plaintiff’s parking lot, which was the immediate cause of the standoff between suspect Nash and the police, can perhaps be dismissed for constitutional purposes as mere “routine *422 negligence.” However, the police strategy for apprehending Nash also involved more considered actions and judgments, undertaken over the preceding hours and days in an atmosphere notably free of emergency pressure. These were the overriding reasons that Nash, originally a peaceful customer in plaintiff’s store, came to find himself a fugitive trapped on the premises.

We need not determine whether the police actions and judgments that led to the standoff were right or wrong. Either way, I am persuaded that the government cannot escape its constitutional obligation to compensate plaintiff, an innocent bystander, for the extensive damage caused by the deliberate execution of the public enterprise. 12

Nothing in the views I have expressed diminishes my support for vigorous and effective law enforcement or my profound respect for the public officers who execute that difficult, dangerous, and vital function. As I have indicated, the constitutional requirement of just compensation does not assume that the action which caused compensable damage was tortious or otherwise improper. On the contrary, the provision declares that even if the government acted properly in the public interest, the cost of its action should not fall disproportionately on an individual owner.

Sound constitutional and policy reasons may exist for excusing compensation in certain law enforcement situations. Indeed, the majority’s strained effort to avoid applying the just compensation clause in this case is primarily motivated by their understandable solicitude for the perceived practicalities of government operations. But concerns about fiscal consequences or governmental convenience cannot always prevail over the Constitution’s purpose. Here I simply conclude that where deliberate government action caused the situation in which damage became necessary, and extensive *423 physical damage was itself inflicted as a deliberate means of resolving the crisis, the well established intendments of the Constitution must be honored.

I would reverse the judgment of the Court of Appeal.

Mosk, J., and Arabian, J., concurred.

Appellant’s petition for a rehearing was denied July 13, 1995. Mosk, J., and Baxter, J., were of the opinion that the petition should be granted.

Article I, section 19, provides in full as follows: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.”

I assume the majority are not suggesting that by the addition of this procedural language, the drafters of article I, section 19, intended a narrower protection than that provided by the analogous provision of the United States Constitution, which declares simply that “private property shall [not] be taken for public use without just compensation.” (U.S. Const., Amend. V.)

As the majority point out (maj. opn., ante, p. 377, fn. 5), the high court has indeed noted in several instances how the regulatory restrictions it was considering offered analogies to physical appropriation. But these observations undermine, rather than support, the majority’s position. What they prove is the court’s understanding that however such an appropriation occurs, it generally must be compensated. Indeed, the majority’s “functional equivalency” argument proves too much, and thus collapses of its own weight. When a deliberate government action, taken for a public purpose, necessarily produces physical destruction or damage to individual private property, that is the “functional equivalent” of eminent domain —i.e., the government’s “tak[ing]” or “damaging] of private property for a public use.” We ourselves observed long ago that “when [the police power] passes beyond proper bounds in its invasion of property rights, it in effect comes within the purview of the law of eminent domain and its exercise requires compensation. [Citations.]” (House v. L.A. County Flood Control Dist., (1944) 25 Cal.2d 384, 388 [ 153 P.2d 950 ], italics added.)

Indeed, the constitutional provision applies, and a claim for inverse condemnation will lie, even against a governmental entity that has no direct “eminent domain” power at all. “ ‘ “All that is necessary to show is that the damage resulted from an exercise of governmental power while seeking to promote ‘the general interest in its relation to any legitimate object of government.’ ” ’ ” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 867 [ 218 Cal.Rptr. 293 , 705 P.2d 866 ], quoting Sutfin v. State of California (1968) 261 Cal.App.2d 50, 55 [ 67 Cal.Rptr. 665 ], italics added; see also City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 69 [ 183 Cal.Rptr. 673 , 646 P.2d 835 ]; Bauer v. County of Ventura, supra, 45 Cal.2d 276, 284 .)

In Holtz v. Superior Court, supra, 3 Cal.3d 296 , we recognized one other narrow exception to the rule that physical invasions of property are compensable. This exception, arising from the “complex and unique province of water law" (id. at p. 306), traditionally held that damage caused by the normal operation of a flood control project as designed and constructed was not compensable. The root of the exception was that the government, like a private riparian owner at common law, had the right to confine surface waters within their natural channels without liability for resulting flood damage to adjacent lands. (Id. at p. 305; see Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 262 .) But modem recognition that inverse condemnation liability is not limited by common law principles has led to further limitation of this “flood control” exception. It survives only in the vestigial principle that if the government acted “reasonably” in the design, construction, or operation of a flood control project, or of other public improvements which increase the flow of surface water into a natural watercourse, it may be immune from liability for resulting flood damage. (Locklin v. City of Lafayette, supra, 7 Cal.4th 327, 367 ; Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 565-566 [ 253 Cal.Rptr. 693 , 764 P.2d 1070 ].)

I pass no judgment on whether the result of Patel v. U.S., supra, 823 F.Supp. 696 , was right or wrong based on the particular circumstances of that case. From the sparse facts alleged in plaintiff Patel’s complaint, it appears that police fired smoke, percussion, flash, and tear gas grenades into a residence in order to force the surrender of its permanent tenants. There may be a sound basis for denying compensation when the property destroyed or damaged was being used by its owners or permanent occupants for criminal purposes, and thus had itself become a nuisance which the government was privileged to abate. (See discussion, post.) No such considerations are presented here.

The concurring opinion argues that I am mistaken in finding the requirement of a “public use” to be satisfied in this case. Though it acknowledges “incoherence” and inconsistency in the authorities, the concurrence discerns the principle that a compensable public “use” does not occur unless the government somehow conscripts the targeted property and presses it into “affirmative, productive” service. (Conc. opn. of Kennard, J., ante, at pp. 398-399.) Thus, the concurrence reasons, no right to “just compensation” arises when the government merely destroys or damages property for reasons unrelated to the property’s public usefulness.

Isolated snippets of case law support this limited view of “public use,” but the concurrence’s analysis does not withstand close scrutiny. On the contrary, it is a fundamental tenet of inverse condemnation law that with limited exceptions, compensation is due for incidental physical injury as well as for direct appropriation and use. Indeed, as noted above, the phrase “or damaged” was added to article I, section 19, in order to remove all possible doubt on the point. (See, e.g., Reardon v. San Francisco, supra, 66 Cal. 492, 501-506 .) Only by novel and tortured reasoning, not employed by the cases themselves, can the concurrence suggest that government put to “affirmative, productive use” the land flooded because of upstream public improvements in Locklin v. City of Lafayette, supra, 7 Cal.4th 327 , or the property undermined by adjacent excavation for a public transit system in Holtz v. Superior Court, supra, 3 Cal.3d 296 , or the homes that suffered landslide damage as the result of a nearby road construction project in Albers v. County of Los Angeles, supra, 62 Cal.2d 250, or the parcels inundated by the overflow of artificial drainage ditches in Bauer v. County of Ventura, supra, 45 Cal.2d 276 , or the building demolished as an earthquake hazard in Rose v. City of Coalinga, supra, 190 Cal.App.3d 1627 .

These and numerous other California cases have stated or assumed from time immemorial that when physical injury is the incidental consequence of deliberate government action in furtherance of public purposes, the damaged or destroyed property has been appropriated for “public use,” and the public has effectively exercised its entitlement to “use and enjoyment” of the property with compensation. (E.g., Bauer v. County of Ventura, supra, 45 Cal.2d at p. 284 ; see also, e.g., Albers v. County of Los Angeles, supra, 62 Cal.2d at p. 258; Clement v. State Reclamation Board, supra, 35 Cal.2d 628, 641 [construction of public improvement was “a deliberate action of the state in furtherance of public purposes,” requiring compensation for consequential damage (italics added)], citing, inter alia, Hooker v. Farmers’ Irr. Dist. (8th Cir. 1921) 272 Fed. 600, 603 [when damage to adjacent property was necessarily inflicted by permanent operation and maintenance of a canal for the “public use,” failure to compensate violated Nebraska’s constitutional proscription against taking or damaging “for public use”]; Tormey v. Anderson-Cottonwood Irr. Dist. (1921) 53 Cal.App. 559, 568 [ 200 P. 814 ] [damage inflicted by intended operation of adjacent canal constructed and operated “for public use” must be compensated].) Similar statements or assumptions suffuse federal law. (See, e.g., Yee v. Escondido (1992) 503 U.S. 519, 527 [ 118 L.Ed.2d 153, 165 , 112 S.Ct. 1522 ]; Pumpelly v. Green Bay Company (1872) 80 U.S. (13 Wall.) 166, 177-181 [ 20 L.Ed. 557, 560-561 ]; Langenegger v. United States (Fed.Cir. 1985) 756 F.2d 1565, 1570 .)

The facts of the case before us conform to this long-settled understanding of “public use.” Despite the concurring opinion’s attempt to characterize the facts differently, the police did *416 put plaintiff’s property to “public use” by sacrificing it as the deliberate means of achieving their law enforcement purpose.

As authority against these two decisions, the majority cite Indiana State Police v. May (Ind.Ct.App. 1984) 469 N.E.2d 1183 , which involved somewhat similar facts. The primary issue in May was whether a deliberate police decision to end a hostage situation by firing tear gas into a residence was protected against a tort action by the “law enforcement” immunity of Indiana’s Tort Claims Act. As an afterthought, May dismissed in two terse sentences the plaintiff’s alternate “takings” claim. The court simply declared, without analysis or citation, that the conduct alleged was “in the nature of tort.” (Id. at p. 1184.) May’s failure to distinguish between tort and eminent domain principles echoes the flaw in Patel v. U.S., supra, 823 F.Supp. 696 , and in the majority’s reasoning here. In any event, given the particular facts of May , its result is not clearly incorrect under an inverse condemnation theory. As I indicate below, when public safety officers, responding to a situation they did not create, act to rescue or aid the owner or possessor of property, thus conferring a significant private benefit by their action, the Constitution may not require separate compensation for any incidental damage caused to the property in the course of rendering assistance. In May , one purpose of the police action was to rescue the occupants of the damaged residence after they were taken hostage by fleeing suspects who chose the home as a refuge. Here, though it might be said that the police action aided plaintiff in removing a dangerous trespasser from its premises, there was no need to do so until the police, acting in furtherance of a preexisting public purpose, trapped the suspect inside the store. (See discussion, post.)

The court in United States v. Caltex, Inc., supra, specifically noted that “[h]ad the Army hesitated, had the facilities only been destroyed [by the enemy] after [the Army’s] retreat, respondents would certainly have no claims to compensation.” ( 344 U.S. at p. 155 [97 L.Ed. at pp. 155-156].)

Even where nuisance is the basis for emergency destruction, the government must still justify its action after the fact, and must provide compensation for the destruction of property which was not, in fact, dangerous and worthless. A noted commentary has characterized the prevailing rule as follows: “In all such cases the owner is entitled to a hearing at some stage of the proceedings on the question whether his property was, in fact, a nuisance, and if it was not, he is entitled to compensation for its destruction. [Fn. omitted.] It may well be a reasonable method and necessary for the public health to destroy first and investigate afterward; but if sound and valuable property is destroyed as a result of such necessity, it is taken for the public use in the constitutional sense and the owner is entitled to compensation. [Fn. omitted.]” (1 Nichols, Eminent Domain (3d ed. 1992) § 1.42[15], pp. 552-553.) California law is in accord. (Rose v. City of Coalinga, supra, 190 Cal.App.3d 1627, 1635 ; Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 719 [ 97 Cal.Rptr. 840 ]; see Armistead v. City of Los Angeles (1957) 152 Cal.App.2d 319, 323-324 [ 313 P.2d 127 ]; but cf. Farmers Ins. Exchange v. State of California, supra, 175 Cal.App.3d 494 [no compensation due for auto paint incidentally damaged by nearby Medfly spraying].)

Even this justification for an “emergency” exception is not free from analytical doubt. Indeed, one commentator has suggested that “[d]estruction of private property to prevent it from falling into enemy hands in wartime or to deny its combustible elements to a raging fire —the typical instances of [so-called] ‘denial destruction’—has all the earmarks of a taking of private property for public purposes, surely a legitimate and therefore compensable public ‘use’ within constitutional standards. . . . Thus, where just compensation is denied, one would expect to find overriding reasons for disregarding the literal application of the constitutional mandate. [¶] . . . [Yet] [n]one of [the] cases [denying compensation in such situations] undertook an adequate theoretical discussion, apart from expressions of judicial reluctance to impose unforeseeable and potentially enormous liabilities upon public entities.” (Van Alstyne, Statutory Modification of Inverse Condemnation: Deliberately Inflicted Injury or Destruction (1968) 20 Stan.L.Rev. 617, 619-620.)

The majority claim I suggest unreasonably that the government was somehow “responsible” for Nash’s refusal to surrender. They find illogic in my assertion that the damage inflicted in this case requires compensation, even if other crimefighting damage might not. And they point to evidence that trapping Nash inside the store, instead of confronting him on the street or elsewhere, “did not necessarily turn out to be a poor strategy.” (Maj. opn., ante, at p. 385, fn. 9.) Of course, the issue is not whether the police are accountable for the predictable efforts of a trapped fugitive to resist capture. I merely assert that in this particular case, deliberate, voluntary choices by the government, made under nonemergency conditions, caused such resistance to take place on plaintiff’s property and thus required the sacrifice of that property to achieve public ends. Under these circumstances, at least, there is no legitimate basis for application of an “emergency” exception. And the majority’s implication that the police may have done nothing wrong by trapping Nash in the store is irrelevant for constitutional purposes. As I have explained, the just compensation clause does not target the government’s fault, poor judgment, or abuse of authority. Instead, it assumes the government’s actions and decisions were valid, but nonetheless protects against undue individual sacrifice for the public benefit.