Baker v. City of McKinney

Case: 22-40644 Document: 00516928161 Page: 1 Date Filed: 10/11/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

October 11, 2023

No. 22-40644 Lyle W. Cayce

____________ Clerk

Vicki Baker,

Plaintiff—Appellee,

versus

City of McKinney, Texas,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:21-CV-176

______________________________

Before Smith, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

When an armed fugitive held a 15-year-old girl hostage inside plaintiff-

appellee Vicki Baker’s home, City of McKinney (the “City”) police officers

employed armored vehicles, explosives, and toxic-gas grenades to resolve the

situation. The parties agree the officers only did what was necessary in an

active emergency. However, Baker’s home suffered severe damage, much of

her personal property was destroyed, and the City refused to provide com-

pensation.

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Baker brought suit in federal court alleging a violation of the Takings

Clause of the Fifth Amendment to the United States Constitution, which

states that private property shall not “be taken for public use, without just

compensation.” The district court held that as a matter of law, the City vio-

lated the Takings Clause when it refused to compensate Baker for the damage

and destruction of her property. The City timely appeals.

We conclude that, as a matter of history and precedent, the Takings

Clause does not require compensation for damaged or destroyed property

when it was objectively necessary for officers to damage or destroy that prop-

erty in an active emergency to prevent imminent harm to persons. 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 com-

munity. Accordingly, and despite our sympathy for Ms. Baker, on whom mis-

fortune fell at no fault of her own, we REVERSE.

I.

Baker was a long-time resident of McKinney, Texas when she made

plans to sell her house and retire. She had already moved to Montana at the

time of the events in question, July 25, 2020, and her adult daughter, Deanna

Cook, was staying in Baker’s McKinney home to prepare it for final sale.

Baker’s dog was also present at the home.

On the morning of July 25, Cook saw a Facebook post that Wesley

Little was on the run with a 15-year-old female “runaway.” Cook recognized

Little because he “did some work inside of [Baker’s] home more than a year

before the incident occurred.” Baker had fired him at that time because of

comments that made Cook uncomfortable.

That same morning, McKinney police spotted Little driving a

Corvette with the 15-year-old girl. Officers began pursuit, but “[i]t was a very

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fast Corvette,” and Little evaded police. He arrived at the Baker residence

shortly thereafter with the 15-year-old girl and knocked on the door. Cook

answered, and Little asked to come in and to 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.

City police arrived soon after and, in the words of one of the officers,

“set up perimeter on the home and essentially tr[ied] to secure it. And what

we[] [were] doing [was] for the well-being of not only the 15-year-old girl, but

the community as a whole.” Officers employed a BearCat, which is an

“armored personnel carrier,” and engaged in “loud hailing” using an

intercom system. Soon after, Little released the girl and she exited the house.

The girl told police that “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 somehow “communicated to” police that 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.” Police proceeded to use explosive devices, the

BearCat, a T-Rex (similar to the BearCat), toxic gas grenades, and a drone to

try to resolve the situation. After some time, the drone was able to reach a

vantage point to see that Little had taken his own life.

It is undisputed that police acted unimpeachably that day, and no

party in this case has ever suggested otherwise. At trial, Baker’s attorney

made it a point on direct examination to underline that “there was some

really good police work here,” it “was a successful operation,” “[e]veryone

followed procedure,” and “[e]veryone did what they were supposed to do,”

along with other affirmations that the officers acted irreproachably. Her

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attorney reiterated that the severe damage done to Baker’s home “was

necessary. No issue there.” And in briefing, Baker makes clear she does not

dispute that “it was necessary to destroy her house.” In light of the way

Baker has argued this case, we do not ourselves evaluate whether the damage

to her home was “necessary”; we grant the parties’ shared contention that

it was.

Nevertheless, the damage to Baker’s home was severe. As the district

court explained, quoting Baker’s motion for summary judgment, “[m]uch of

the damage went beyond what could be captured visually.” Specifically,

The explosions left Baker’s dog permanently blind and deaf.

The toxic gas that permeated the House required the services

of a HAZMAT remediation team. Appliances and fabrics were

irreparable. Ceiling fans, plumbing, floors (hard surfaces as

well as carpet), and bricks needed to be replaced—in addition

to the windows, blinds, fence, front door, and garage door.

Essentially all of the personal property in the House was

destroyed, including an antique doll collection left to Baker by

her mother. In total, the damage . . . was approximately

$50,000.

Baker filed a claim for property damage with the City, but the City

replied in a letter that it was denying the claim in its entirety because “there

is no liability on the part of the City or any of its employees.” Baker’s

insurance “would not cover any damage caused by the City’s police,

including the structural damage.” Baker received numerous donations from

businesses and others who had heard of her plight. She has maintained that if

she should ever receive compensation from the City, she would pay back

everyone who volunteered to help her.

On March 3, 2021, Baker filed suit against the City in federal court in

the Eastern District of Texas for violations of the takings clauses of the

United States and Texas Constitutions. She alleged liability under the Fifth

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Amendment directly because it “is self-executing” under Knick v. Township

of Scott, 139 S. Ct. 2162, 2171 (2019), and she also alleged liability under the

Fifth Amendment via the vehicle of 42 U.S.C. § 1983. She contended the

district court has jurisdiction over her federal constitutional claims under the

federal-question statute, 28 U.S.C. § 1331, and supplemental jurisdiction

over the state takings claim under 28 U.S.C. § 1367.

The City filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). It argued that Baker has no cause of action

under the Fifth and Fourteenth Amendments and that the City did not take

Baker’s property under the Fifth Amendment; that Baker’s complaint failed

to sufficiently allege Monell liability under § 1983; 1 that the district court lacks

supplemental jurisdiction over the Texas Constitution claim; and that the

Texas Constitution claim fails because “it is a sheer attempt to allege tort

recovery in a claim wearing takings claim clothing.” The district court denied

the City’s motion in full.

Baker filed a motion for partial summary judgment on her claims that

the City is liable under the Fifth Amendment and the Texas Constitution.

The district court granted it, holding that the City is liable directly under the

Fifth Amendment and the Takings Clause of the Texas Constitution. The

district court also held that “because the Fifth Amendment is self-executing,

Baker’s claim under the Fifth Amendment Takings Clause is not dependent

upon the § 1983 vessel. Accordingly, the Court need not determine whether

Baker established an official policy under Monell.” (footnote omitted). But

the district court explained in a subsequent order,

because Baker also brought a claim under §1983, the Court

considered this claim as well, ultimately finding an issue of fact

_____________________

1

See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

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that the Court declined to resolve at summary judgment.

Further, the Court did not determine the amount of just

compensation to which Baker is entitled. Accordingly,

damages and the City’s liability under § 1983 are issues that

have been reserved for jury determination at trial.

At a pre-trial conference, the City “lodge[d] an objection on the

Monell issues,” claiming they have not “been adequately pled or presented

in this case” and that the only thing left to try is the question of damages. The

district court rejected this argument, stating that § 1983 “most certainly was

pled. Without question, it’s pled in the alternative.”

At that same conference, the district court also noted that the City

made an offer to Baker for “the full amount of damages” to settle the case.

Baker refused because, her attorney said, “she wanted a change in policy or

some assurance that people in her position in the future wouldn’t be

subjected to similar denial of compensation, and the City wasn’t willing to

offer that so that was why she proceeded.”

Two weeks before trial, Baker filed a motion in limine to exclude

evidence of donations or insurance proceeds she received to help repair her

home. She cited the collateral source rule, which is a fixture of tort law, and

equitable considerations. The district court agreed with Baker and granted

the motion in full.

Trial was held from June 20 to 22, 2022. On June 21, the City

submitted a motion for judgment as a matter of law along with a supplemental

brief arguing that (1) Baker did not adequately plead a plausible § 1983 claim

against the City and (2) Baker failed to show that her alleged constitutional

injury was caused by an official city policy or custom, or by a city policymaker.

The district court denied the motion.

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The jury found that the City was acting under color of state law when

it refused to compensate Baker for her lost property and that the City’s

refusal proximately caused Baker’s damages of $44,555.76 for her home and

$15,100.83 for her personal property. Because the district court had already

found that the Fifth Amendment is self-executing, that the City’s refusal to

compensate Baker was a violation of the Fifth Amendment, and that the

City’s refusal was a violation of the Texas Constitution, Baker was given the

option to elect whether to pursue the judgment under the Fifth Amendment

directly, under § 1983, or under the Texas Constitution. Baker chose § 1983.

The City submitted a motion for a new trial on July 20, 2022. The

court denied it on August 26, 2022. The City timely filed a notice of appeal

on September 23, 2022, challenging all the district court’s unfavorable

decisions and orders stretching back to its denial of the City’s 12(b)(1) and

12(b)(6) motions.

II.

We begin with jurisdiction. The City contends that under our court’s

decision in Devillier v. State, 53 F.4th 904 (5th Cir. 2023), cert. granted, 92

U.S.L.W. 3063 (U.S. Sept. 29, 2023) (No. 22-913), federal courts lack

jurisdiction over Baker’s Fifth Amendment takings claim. This contention

fails foremost because Devillier made no jurisdictional holding. See id. at 904.

The district court was therefore correct to hold that it had federal-question

jurisdiction in this case pursuant to 28 U.S.C. § 1331. 2

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

_____________________

2

The City also contends that the district court lacked supplemental jurisdiction

over Baker’s Texas Constitution claim pursuant to 28 U.S.C. § 1367. This contention fails

because it is explicitly predicated on the claim that the district court lacked federal-question

jurisdiction.

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III.

We turn now to the merits of Baker’s Fifth Amendment claim.

a.

The City invites our court to adopt a broad rule: because Baker’s

property was damaged or destroyed pursuant to “the exercise of the City’s

police powers,” there has been no compensable taking under the Fifth

Amendment. We decline.

First, the City’s broad rule runs afoul of our precedent. As we

explained in John Corp. v. City of Houston:

Appellants argue strenuously that their claims do not include a

takings claim because they nowhere allege that the City used its

power of eminent domain to take property for public use.

Instead, Appellants assert that the city relied on its police

powers to destroy their property. Such a distinction between

the use of police powers and of eminent domain power,

however, cannot carry the day. The Supreme Court’s entire

“regulatory takings” law is premised on the notion that a city’s

exercise of its police powers can go too far, and if it does, there has

been a taking.

214 F.3d 573, 578 (5th Cir. 2000) (emphasis added). Indeed, the mere fact

that Baker’s property has been damaged or destroyed pursuant to the City’s

police power cannot decide this case.

Second, twentieth-century Supreme Court precedents cast doubt on

the City’s proposed rule. As the Court said in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1014 (1992), if “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.’” (quoting Pa. Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922) (“But that cannot be accomplished in

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this way under the Constitution of the United States.”)). Similarly, in Loretto

v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425 (1982), the Court

noted that a given regulation might be “within the State’s police power. . . .

It is a separate question, however, whether an otherwise valid regulation so

frustrates property rights that compensation must be paid.”

Third, the Court has noted that takings cases “should be assessed

with reference to the ‘particular circumstances of each case,’ and not by

resorting to blanket exclusionary rules.” Ark. Game & Fish Comm’n v. United

States, 568 U.S. 23, 37 (2012) (quoting United States v. Cent. Eureka Mining

Co., 357 U.S. 155, 168 (1958)). The City’s proposed rule is an exceptionally

broad exclusionary rule. And it is broader than any rule necessary to decide

this case.

Fourth, the Court has increasingly intimated that history and

tradition, including historical precedents, are of central importance when

determining the meaning of the Takings Clause. See Tyler v. Hennepin

County, 598 U.S. 631, 637-44 (2023) (determining the applicability of the

Takings Clause from “[h]istory and precedent” reaching back to the Magna

Carta); Horne v. Department of Agriculture, 576 U.S. 350, 357-61 (2015); see

also Murr v. Wisconsin, 582 U.S. 383, 419 (2017) (Thomas, J., dissenting) (“In

my view, it would be desirable for us to take a fresh look at our regulatory

takings jurisprudence, to see whether it can be grounded in the original public

meaning of the Takings Clause . . . .”).

The City’s arguments for its broad rule are ahistorical. It relies

primarily on recent precedents from our sister circuits, especially Lech v.

Jackson, 791 F. App’x 711 (10th Cir. 2019) (unpublished). See also Johnson v.

Manitowoc Cnty., 635 F.3d 331 (7th Cir. 2011); AmeriSource Corp. v. United

States, 525 F.3d 1149 (Fed Cir. 2008). The City is correct that these

precedents have endorsed the rule the City now invites our court to adopt.

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But with respect to our sister circuits, their opinions do not rely on history,

tradition, or historical precedent, and moreover, the rule they adopt is

inconsistent with our court’s precedent. Compare Lech, 791 F. App’x at 717

(“[We] hold that when the state acts pursuant to its police power, rather than

the power of eminent domain, its actions do not constitute a taking for

purposes of the Takings Clause.”) with John Corp., 214 F.3d at 578 (“[A]

city’s exercise of its police powers can go too far, and if it does, there has been

a taking.”).

Our own analysis of history and precedent, undertaken below, further

explains why we decline to adopt the City’s broad rule. But first, we turn to

Baker’s arguments.

b.

Much of Baker’s briefing is devoted to explaining why we should

reject any categorical “police power” exclusion from Takings Clause

liability. In the absence of such an exclusion, she claims, “like every other

time the government’s agents destroy property, a Takings analysis applies.”

And “[i]n this case, that analysis is straightforward: The damage was

intentional and foreseeable, it was for the public use, and no recognized

exception to liability applies.”

Baker attends more closely to historical precedent than does the City.

She specifically relies on Pumpelly v. Green Bay & Mississippi Canal Co., 80

U.S. (11 Wall.) 166, 181 (1871), for the proposition that “where real estate is

actually invaded . . . so as to effectually destroy or impair its usefulness, it is

a taking, within the meaning of the Constitution.” Pumpelly was an inverse

condemnation case in the context of a dam, which Wisconsin had legislated

to be built, that flooded the plaintiff’s property. In that case, the Supreme

Court said,

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It would be a very curious and unsatisfactory result, if in

construing a provision of constitutional law, always understood

to have been adopted for protection and security to the rights

of the individual as against the government, and which has

received the commendation of jurists, statesmen, and

commentators as placing the just principles of the common law

on that subject beyond the power of ordinary legislation to

change or control them, it shall be held that if the government

refrains from the absolute conversion of real property to the

uses of the public it can destroy its value entirely, can inflict

irreparable and permanent injury to any extent, can, in effect,

subject it to total destruction without making any

compensation, because, in the narrowest sense of that word, it

is not taken for the public use. Such a construction would

pervert the constitutional provision into a restriction upon the

rights of the citizen, as those rights stood at the common law,

instead of the government, and make it an authority for

invasion of private right under the pretext of the public good,

which had no warrant in the laws or practices of our ancestors.

Id. at 177–78.

But while we agree with Baker that Pumpelly further undercuts the

City’s proposed rule, it provides only limited help for Baker herself. To

repeat, Pumpelly was a flooding case that dealt with a dam constructed

pursuant to Wisconsin legislation. The facts of Pumpelly are facially distinct

from those at bar, where officers damaged or destroyed Baker’s property by

necessity during an active emergency—an emergency that began as a hostage

situation involving a child and evolved into a potential shootout in a

residential neighborhood with a heavily armed fugitive.

What Baker needs, in other words, is historical or contemporary

authority that involves facts closer to those at bar and where the petitioner

succeeded under the Takings Clause. But Baker provides no such authority.

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c.

When we turn to “[h]istory and precedent,” Tyler, 598 U.S. at 639,

we find that historically oriented legal scholarship has widely converged on

the thesis that a “necessity” or “emergency” privilege has existed in

Takings Clause jurisprudence since the Founding. 3

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3

See, e.g., William J. Novak, Common Regulation: Legal Origins of State Power in

America, 45 Hastings L.J. 1061, 1092 (1994) (“American courts and commentators

consistently referred to a line of English cases making it ‘well settled at common law’ that

in cases of calamity (e.g., fire, pestilence, or war) individual interests, rights, or injuries

would not inhibit the preservation of the common weal. Thus, private houses could be

pulled down or bulwarks raised on private property without compensation when the safety

and security of the many depended upon it.”); Shelley Ross Saxer, Necessity Exceptions to

Takings, 44 U. Haw. L. Rev. 60, 67 (2022) (“[T]he common law defense of public necessity

bars the rights of property owners to obtain recourse or compensation when government

destroys private property for the public good.”); Brian Angelo Lee, Emergency Takings, 114

Mich. L. Rev. 391, 391, 393 (2015) (“Remarkably, however, courts have repeatedly held

that if the government destroys property to address an emergency, then a ‘necessity

exception’ relieves the government of any obligation to compensate the owner of the

property that was sacrificed for the public good. . . . Indeed, courts and scholars have said

that [this] principle has been well-established law for centuries.”); Susan S. Kuo, Disaster

Tradeoffs: The Doubtful Case for Public Necessity, 54 B.C. L. Rev. 127, 127 (2013) (“When

government takes private property for a public purpose, the Fifth Amendment of the U.S.

Constitution requires just compensation. Courts, however, have long recognized an

exception to takings law for the destruction of private property when necessary to prevent

a public disaster.”); Derek T. Muller, “As Much Upon Tradition as Upon Principle”: A

Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre

Dame L. Rev. 481, 483–85 (2006) (describing the “privilege of necessity destruction”

which reaches to back to the common law and allows that “the government may destroy

property in times of necessity during law enforcement, such as burning down a home to

capture a barricaded criminal” without providing compensation); Note, Necessity Takings

in the Era of Climate Change, 136 Harv. L. Rev. 952, 953 (2023) (“Since the earliest days

of the Republic, U.S. courts have sanctioned violations of private property rights without

compensation under conditions of public necessity. The quintessential application of this

doctrine has been in the destruction of private property to create a firebreak . . . . But the

principle . . . . has expanded beyond classical paradigms . . . to include activities [such as]

law enforcement.”).

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For example, in Respublica v. Sparhawk, 1 U.S. 357 (Penn. 1788), the

Pennsylvania Supreme Court considered a claim for compensation for 227

barrels of flour that had been moved by the government to a depot and later

lost to the British. The court asked whether “by reason, by the law of nations,

and by precedents analogous to the subject before us,” compensation could

be awarded. The court answered no, on the ground that “the rights of

necessity, form a part of our law.” Id. at 362. It explained,

Of this principle, there are many striking illustrations. If a road

be out of repair, a passenger may lawfully go through a private

enclosure 2 Black. Com. 36. So, if a man is assaulted, he may

fly through another’s close. 5 Bac. Abr. 173. In time of war, bul-

warks may be built on private ground. Dyer. 8. Brook. trespass.

213. 5 Bac. Abr. 175. . . . Houses may be razed to prevent the

spreading of fire, because for the public good. Dyer. 36. Rud. L.

and E. 312. See Puff. lib. 2. c. 6. sec. 8. Hutch. Mqr. Philos. lib.

2. c. 16. We find, indeed, a memorable instance of folly rec-

orded in the 3 Vol. of Clarendon’s History, where it is men-

tioned, that the Lord Mayor of London, in 1666, when that city

was on fire, would not give directions for, or consent to, the

pulling down forty wooden houses, or to the removing the fur-

niture, &c. belonging to the Lawyers of the Temple, then on

the Circuit, for fear he should be answerable for a trespass; and

in consequence of this conduct half that great city was burnt.

Id. at 363. Given this principle of necessity, the court explained, “there is

nothing in the circumstances of the case, which, we think, entitles the Appel-

lant to a compensation . . . .” Id.

Sparhawk is a 1788 case. It is therefore directly on point to

understanding the common law rights to just compensation against which the

Fifth Amendment Takings Clause was ratified in 1791. And it 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

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of property during a public emergency, then the state may not be so quick to

damage or destroy it, and such hesitancy risks catastrophe.

The idea that public emergency allows the government to damage or

destroy property without compensation remained prominent after Sparhawk.

For example, in 1822, a committee of the 17th Congress considered a petition

for compensation from a Louisianan whose property was inundated due to

American military action during the British invasion of Louisiana in 1814. See

Property Destroyed During the Invasion of Louisiana by the British in 1814–

’15, 17th Cong., 1st Session, No. 587 (1822). 4 As the congressional committee

described, “the enemy had landed near the city of New Orleans, [and] in

order to prevent him from bringing up his cannon and other ordnance to the

city, General Morgan, commanding the Louisiana militia, caused the levee to

be cut through at or near the plantation of the petitioner.” Id. “In

consequence, the petitioner suffered great losses in the destruction of his”

property, to the tune of $19,250. Id. The congressional committee stated

that this injury done the petitioner was done in the necessary

operations of war, and that the United States are not liable for

the individual losses sustained by that inundation; and

therefore [the committee] recommend[s] the adoption of the

following resolution: Resolved, That the prayer of the petitioner

ought not to be granted.

Id.

Cases closer to the ratification of the Fourteenth Amendment

demonstrate the longevity of the necessity privilege. 5 For example, in Field v.

_____________________

4

Available at https://memory.loc.gov/cgi-bin/ampage?collId=llsp&file-

Name=036/llsp036.db&Page=835.

5

See also N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2163 (2022)

(Barrett, J., concurring) (noting the “‘ongoing scholarly debate on whether courts should

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City of Des Moines, 39 Iowa 575, 577–78 (1874), a plaintiff sought to recover

against the city of Des Moines after it razed his house to prevent further

spreading of a fire. The Iowa Supreme Court explained,

In Dillon on Municipal Corporations, Sec. 756, the learned

author states the common law doctrine as clearly and

succinctly as it is any where to be found. He says: “The rights

of private property, sacred as the law regards them, are yet

subordinate to the higher demands of the public welfare. Salus

populi suprema est lex. Upon this principle, in cases of imminent

and urgent public necessity, any individual or municipal officer may

raze or demolish houses and other combustible structures in a city

or compact town, to prevent the spreading of an extensive

conflagration. This he may do independently of statute, and

without responsibility to the owner for the damages he thereby

sustains.” The ground of exemption from liability in such cases

is that of necessity, and if property be destroyed, in such cases,

without any apparent and reasonable necessity, the doers of the

act will be held responsible.

Id. (emphases in original). Much the same analysis is found in numerous

cases from the mid-nineteenth century. See, e.g., McDonald v. City of Red

Wing, 13 Minn. 38, 40 (1868) (listing cases); The Mayor, &C. of N.Y. v. Rufus

L. Lord, 18 Wend. 126, 132–33 (N.Y. 1837).

And when this same issue reached the Supreme Court in Bowditch v.

City of Boston in 1879, only eleven years after the ratification of the

Fourteenth Amendment, the Supreme Court explained:

At the common law every one had the right to destroy real and

personal property, in cases of actual necessity, to prevent the

spreading of a fire, and there was no responsibility on the part

_____________________

primarily rely on the prevailing understanding of an individual right when the Fourteenth

Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791”).

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of such destroyer, and no remedy for the owner. In the case of

the Prerogative, 12 Rep. 13, it is said: ‘For the Commonwealth

a man shall suffer damage, as for saving a city or town a house

shall be plucked down if the next one be on fire; and a thing for

the Commonwealth every man may do without being liable to

an action.’ There are many other cases besides that of fire,—

some of them involving the destruction of life itself,—where

the same rule is applied. ‘The rights of necessity are a part of

the law.’ Respublica v. Sparhawk, 1 Dall. 357, 362. See also

Mouse’s Case, 12 Rep. 63; 15 Vin., tit. Necessity, sect. 8; 4 T.

R. 794; 1 Zab. (N. J.) 248; 3 id. 591; 25 Wend. (N. Y.) 173; 2

Den. (N. Y.) 461.

In these cases the common law adopts the principle of

the natural law, and finds the right and the justification in the

same imperative necessity. Burlem. 145, sect. 6; id. 159, c. 5,

sects. 24–29; Puffendorf, B. 2, c. 6.

101 U.S. 16, 18–19 (1879).

Bowditch was a case about Massachusetts law, but its lessons have

permeated the Federal Takings Clause context. Justice Holmes, for exam-

ple, said:

The general rule at least is that while property may be regulated

to a certain extent, if regulation goes too far it will be recog-

nized as a taking. It may be doubted how far exceptional cases,

like the blowing up of a house to stop a conflagration, go—and

if they go beyond the general rule, whether they do not stand

as much upon tradition as upon principle. Bowditch v. Boston,

101 U. S. 16, 25 L. Ed. 980.

Pa. Coal Co., 260 U.S. at 415–16 (1922).

Indeed, whatever we might think about the principle underlying the

necessity privilege, its basis in history and tradition is longstanding and long

recognized. This recognition has extended to more recent precedents, as

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well. See, e.g., United States v. Caltex, 344 U.S. 149, 154-55 (1952) (“[T]he

common law ha[s] long recognized that in times of imminent peril—such as

when fire threatened a whole community—the sovereign could, with immun-

ity, destroy the property of a few that the property of many and the lives of

many more could be saved. . . . [And the] terse language of the Fifth Amend-

ment is no comprehensive promise that the United States will make whole all

who suffer from every ravage and burden of war.”); Lucas, 505 U.S. at 1029

n.16 (“[The State may be absolved] of liability for the destruction of ‘real and

personal property, in cases of actual necessity, to prevent the spreading of a

fire’ or to forestall other grave threats to the lives and property of others.”

(citing Bowditch, 101 U.S. at 18–19 and United States v. Pac. R.R., 120 U.S.

227, 238–39 (1887))); see also Steele v. City of Houston, 603 S.W.2d 786, 792

(Tex. 1980) (“The defendant City of Houston may defend its actions by

proof of a great public necessity. . . . Uncompensated destruction of property

has been occasionally justified by reason of war, riot, pestilence or other great

public calamity.”).

d.

In sum, history, tradition, and historical precedent reaching back to

the Founding supports the existence of a necessity exception to the Takings

Clause. 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 compen-

sation 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. We

need not determine whether the necessity exception extends further than

this.

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e.

We conclude by acknowledging two considerations that favor Baker’s

position, despite all we have said.

First, while scholars have converged on the empirical, historical thesis

that a necessity exception to the Takings Clause has existed since the Found-

ing, they have also tended to converge on the view that it wrongs individuals

like Baker. 6 Second, and closely related, the Supreme Court has often stated

that “[t]he Fifth Amendment’s guarantee that private property shall not be

taken for a public use without just compensation was designed to bar Gov-

ernment from forcing some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a whole.” Armstrong v.

United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. 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. 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.

IV.

Because Baker opted to pursue relief under § 1983, we do not reach

whether she succeeds under the Texas Constitution.

_____________________

6

In particular, see Kuo, Disaster Tradeoffs: The Doubtful Case for Public Necessity,

54 B.C. L. Rev. 127 (2013), and Muller, “As Much Upon Tradition as Upon Principle”: A

Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre

Dame L. Rev. 481 (2006).

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We REVERSE the district court’s summary judgment order finding

that the City’s damaging or destroying Baker’s house and personal property

was a compensable taking under the Fifth Amendment. We therefore

VACATE the § 1983 judgment in her favor and REMAND for further

proceedings.

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