Petition for Writ of Certiorari — Customer Co. v. City of Sacramento

CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

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THE CUSTOMER COMPANY,

Petitioner,

VS.

THE CITY OF SACRAMENTO AND

THE COUNTY OF SACRAMENTO,

Respondents,

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Petition for Certiorari To The California Supreme Court

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PETITION FOR A WRIT OF CERTIORARI

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Matthew F. Graham *

AIKEN, KRAMER & CUMMINGS,

INCORPORATED

One Kaiser Plaza, Suite 550

Oakland, California 94612-3629

Telephone: (510) 834-6800

Attorney for Petitioner

* Counsel of Record

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Er Oe-_rerrrerere

uestion Presented for Revi

Whether the holding of the California Supreme Court

that the destruction of private property by the police in order to

apprehend a criminal suspect is not “taking” and does not require

compensation under Article I, Section 19 of the California

Constitution violates petitioner’s Sth Amendment right of

compensation for such a taking.

LIST OF PARTIES

The caption of the case contains the names of all parties.

Petitioner The C'stomer Company has no parent

company or wholly owned subsidiaries.

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TABLE OF CONTENTS

Page

Official and Unofficial Reports ...................... l

Basis of Jurisdiction ..............................

1. CONSTITUTIONAL PROVISION IN ISSUE .... |

2. STATEMENT OF THECASE ................ 2

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TABLE OF AUTHORITIES

CASES

Armstrong v. United States

eid Sd

Customer Co. v. City of Sacramento

10 Cal. 4th 368; [41 Cal.Rptr.2d 658;

895 P.2d 900(June 1995) ...........

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles

(482 U.S. 304, 312-19 (1987) _......

Hawaii Housing Authority v. Midkiff

467 U.S. 229(1984) .............

Steele v. City of Houston

(Tex. 1980) 603 S.W.2d786......__.

Wegner v. Milwaukee Mut. Ins. Co.

(Minn. 1991) 479N.W.2d38

U.S. CONSTITUTION

Fifth Amendment

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U. S. STATUTES

PRE OE 56 6 scx sae’, eck inncd peas eee l

Supreme Court Rule 10........................... I

| CALIFORNIA CONSTITUTION

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PETITION FOR A WRIT OF CERTIORARI

Official and Unofficial R

Customer Co. v. City of Sacramento

10 Cal. 4th 368; 41 Cal. Rptr. 2d 658; 895 P.2d 900 (June 1995)

Basis of Jurisdict

Petitioner claims this court has jurisdiction pursuant to

28 U.S.C. §1257 and Supreme Court Rule 10.1 in that the ruling

of the California Supreme Court violates petitioner's Sth

Amendment rights raising an important issue of federal law

which has not been, but which should be, settled by the U. S.

Supreme Court.

The California Supreme Court filed its opinion on

June 12, 1995. Rehearing was denied on July 13, 1995 and the

matter remitted to the Court of Appeal that same day.

|. CONSTITUTIONAL PROVISION IN ISSUE.

AMENDMENT V -- GRAND JURY INDICTMENT FOR

CAPITAL CRIMES; DOUBLE JEOPARDY: SELF-

INCRIMINATION,; DUE PROCESS OF LAW: JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital,

Or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

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or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any crminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

Sacramento police investigating robberies determined to

question a person named Nash. (C.T. 1783:1-225.) On a Friday

they broadcast a look-out bulletin for a white Camaro which

Nash was reportedly driving, then took off for the weekend.

(C.T. 1781:1-24; 1782:1-24; 1796:3-9.) About 8:00 a.m. on

Monday a plain-clothes deputy drove his unmarked car by one

location where Nash was supposedly staying and saw a man and

a woman get into the Camaro. (C.T. 1796:8-25; 1784:1-7.)

The deputy radioed his partner and followed the Camaro,

intending to make a vehicle stop when he had back-up. (C.T.

1777, 1797:13-18.) The Camaro stopped at petitioner's store

“Roger's Food & Liquor" and the occupants entered the store.

The deputy waited out of sight for his partner to arrive so they

could arrest the Camaro occupants when they came out of the

store. (C.T. 1784:8-9; 1799:5-23.) The deputy’s partner and

additional Sacramento police responded to his call in two

unmarked cars and a black and white car. (CT. 1805-22-

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1806:20.) Before they reached the store, the cars pulled to the

curb and waited, the black and white apparently some distance

behind the unmarked cars. (C.T. 1810:2-13; 1816:24-1817:14.)

A covert surveillance was planned until Nash left the store.

(C.T. 1777, 1811:16-21.) Then, before Nash had come out of

the store, a marked sheriff's car with lights flashing headed

towards the store. The black and white followed it Closely into

the parking lot and stopped by the store's doors. (C.T. 1777;

1817:17-1818:9; 1829:5-26; 1830:25-1831:11.)

Inside, Nash then walked away from the checkout

counter toward the rear of the store, saying he wanted to get a

soda. The store clerk saw police outside with guns drawn.

(C.T. 1835:12-19; 1836:26-1837:19; 1838:15-1839:7.) Police

then used a loudspeaker to order everyone out of the store. The

clerk and the woman passenger in the Camaro came out of the

store, but Nash did not. (C.T. 1838:21-1839-28; 1878:21-23.)

The clerk told police that no one other than Nash was in the

store, the woman passenger said that Nash's guns were in the

Camaro and that Nash was unarmed. (C.T. 1840:16-20; 394.

451; 1082; 2350.) By 8:36 a.m., police had secured the store's

perimeter and used a car to block the store's rear doors. (C.T.

1777, 398; 453.) A SWAT team arrived at 9:17 a.m. (C.T.

1778; 1780.) A police sergeant used a loudspeaker for about 10

minutes to tell Nash to “answer the phone" but received no

response. (C.T. 1850:5-6; 1882:11-21.) Because 30-40 officers

were present and nearby major streets were blocked, police

decided to fire tear gas to expedite Nash's removal. (C.T. 1850-

1852.) Petitioner asked that tear gas not be used, as the store

or +

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and inventory would be contaminated; but the lieutenant in

charge just laughed at the request. (C.T. 1644:23-1645: l;

1646:25-1647:2.) Just before tear gas was fired, two guns were

found in the Camaro; one was the type Nash reputedly always

carried. (C.T. 1779; 1783:14-16) Between 11:10 am and

12:04 p.m. when police ran out of icar gas, at least 13 rounds of

tear gas were fired into the store. Mace was then sprayed into

attic vents, police entered the store, and at 1:13 p.m. found Nash

unarmed, unconscious or feigning sleep in the attic. (C.T. 1779:

1786:1-1789:23; 390; 395; 400.)

The tear gas concentration was so severe that for days

employees were able to stay in the store for only a few minutes

at atime. (C.T. 1648:18-22; 1649:5-28.) Exterior windows,

interior glass doors and the ceiling were damaged or broken by

the blasts and the entire store was contaminated. (C.T. 1792.)

An environmental pollution expert determined that the entire

inventory was "Extremely Hazardous" material under California

law. All inventory, except beverages which could be poured

down the sewer, was contained, sealed and dumped as

hazardous waste at a Class I dump site as required by law, and

the store was closed for 11 days for decontamination and repair.

(C.T. 1890:1-28; 1891:1-13; 369:35-370:1.) The cost to

petitioner to repair the damage caused by the tear gas attack,

including the toxic Cleanup, containment, dumping, removal,

repair and replacement of fixtures, equipment and inventory, but

not including lost profits from the store closure, exceeded

$275,000. (C.T. 481.)

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Petitioner sued in inverse condemnation and other

theories, to attempt to recover its costs. The federal

constitutional issue was raised by the City of Sacramento in its

motion for summary judgment. (C.T. 623.) The trial court

granted summary judgment, finding that an "emergency" existed

which exempted the City and County from the requirement to

compensate petitioner. The Court of Appeal affirmed, hoiding

that the actions of the officers in attempting to subdue and arrest

the "barricaded and dangerous suspect" here were taken “under

the pressure of public necessity and to avert impending peril,"

and "We find all the elements of an emergency necessitating tear

gas in the present situation." Finding an emergency, the

appellate court held that the governmental entities were

exempted from the Constitutional requirement that the property

owner be compensated.

The California Supreme Court upheld the Court of

Appeals stating that the state constitution's protection against

takings does not apply to property damage “incidentally caused

by the actions of public employees in pursuit of their public

duties." 10 Cal.4th 368 at 377-78. The federal question (Sth

Amendment) was properly placed before the California Supreme

Court in the Amicus Curiae brief of The Pacific Legal

Foundation. (Appendix, Ex. 3.) The Pacific Legal Foundation

also participated in oral argument before the California Supreme

Court and raised the Sth Amendment protection in its argument.

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3. ARGUMENT

The California Supreme Court's Decision is based on two

separate grounds:

1. That the constitutional protection against taking

without compensation does not apply to the destruction of

private property by the police in pursuit of their public duty

(arresting a criminal suspect), and

2. That such a taking would also be allowable under the

so-called emergency exception to the Just Compensation

Requirement.

Something is wrong here, and that something is that the

California Supreme Court has permitted an uncompensated,

calculated taking of private property for public good where no

immediate harm was threatened to anyone, in violation of

Article 1, Section 19 of California's Constitution and the Fifth

Amendment.

This court has stated,

It is axiomatic that the Fifth Amendment's

just compensation provision is "designed to bar

the 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." First English Evangelical Lutheran

h f Glendale v n les.

(482 U.S. 304, 312-19 (1987) (quoting

Armstrong v. United States 364 U.S. 40,49

(1960)).

The factual situation raised in this case is that the police

deliberately intended to, and did, use petitioner's property (a

small grocery store) for purposes of containing a criminal

suspect and then intentionally destroyed the store to effectuate

the suspect's apprehension. The California Supreme Court's

holding that this incident does not comprise a compensable

taking under the California Constitution violates petitioner's Sth

‘Amendment Rights against taking without compensation. At

least two other states (with similar state constitutional

provisions) have held that damages to private property effected

by the police in the course of their routine activity does

constitute a compensable taking (Wegner v. Milwaukee Mut.

Ins. Co. (Minn. 1991) 479 N.W.2d 38; Steele v. City of Houston

(Tex. 1980) 603 S.W.2d 786). This court has further

determined that "the ‘public use’ requirement is ... coterminous

with the scope of a sovereign's police powers." Hawaii Housing

Authority v. Midkiff 467 U.S. 229 (1984). This court even went

so far as to say that such actions need only be "rationally related

to a conceivable public purpose" to pass muster under the Public

Use Clause. Id., at 241. The intentional destruction of a private

citizen's property to effectuate a governmental objective (such as

arresting a criminal suspect) is exactly what the Sth Amendment

was designed to guarantee compensation for.

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Regarding the “emergency” exception to just

compensation, if there is to be an emergency exception, it is an

unwarranted extension of that exception to apply it where there

is no immediate danger to persons or an overwhelming necessity

to act immediately to protect property. The Sth Amendment and

the California Constitution both provide that private property

shall not be taken for public good without compensation. There

was no emergency in this instance; the immediate apprehension

of the suspect was not imperative to prevent imminent harm; the

only emergency aspect of the situation arose from the attempt to

arrest a person who was at the time threatening no one, and the

immediacy arose not from a fear of immediate harm but from a

desire to free the 30 to 40 officers who were tied up in the

attempted arrest. Under the California Supreme Court decision,

an emergency exists any time an arrest is attempted on a person

who may resist arrest (even though he is, as in the present case,

unarmed). No consideration is given to the fact that there were

alternatives which would have saved the private owner's

property but resulted in greater cost to government: wait it out

and arrest him when he comes out, or continue to try to conduct

meaningful negotiations with the suspect, or simply leave and try

to arrest him at some later time when the arrest can be

accomplished without vast destruction of property.

The California Supreme Court has determined that a

small store is worth sacrificing without compensating the owner,

to accomplish an arrest; but under the court's decision, the result

would have been the same if the suspect had been in Walmart,

Safeway, the Empire State Building or someone's home. Has

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our system of justice come to this, that the police can ignore the

effect on private property to accomplish an arrest, because

government does not have to pay for it and it is therefore

cheaper to bomb a property with tear gas than to defer the arrest

to a later time?

Through no fault of the petitioner, a suspect happens to

be on his property as a customer when the police decide to arrest

him, they blow their cover by flashing their lights to notify the

Suspect he is in trouble, and then they blow up the petitioner's

Store to effect the arrest immediately because it would be too

expensive to wait until it could be effected later. Can the police

blow up your home without compensating you, to effect an

arrest, even when the person arrested is at the time threatening

no one and his only connection to you is that he happens to be

on your property at the time? If a decision is made that the

arrest is important enough to justify the destruction of private

property, then is it fair to allocate the entire risk of loss to an

innocent property owner for the good of the public? And is it

consistent with petitioner's rights as Americans under the Sth

Amendment? We think not. The constitutional protections

requiring compensation for takings deserve more than the lip

service provided them by the California Supreme Court.

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It is a fundamental violation of the Sth Amendment to allow the

uncompensated destruction of property to achieve

governmental end.

Dated: December, 1995

Respectfully submitted,

MATTHEW F. GRAHAM

Counsel of Record

AIKEN, KRAMER & CUMMINGS,

INCORPORATED

One Kaiser Plaza, Suite 550

Oakland, California 94612-3629

(510) 834-6800

Attorneys for Petitioner

a