Appendix — Customer Co. v. City of Sacramento

Supreme Court brief1996

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‘ OFFICE OF HE CLERK

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

THE CUSTOMER COMPANY,

Petitioner,

VS.

THE CITY OF SACRAMENTO AND

THE COUNTY OF SACRAMENTO,

Respondents,

On Petition for Certiorari To The California Supreme Court

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

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

TABLE OF CONTENTS

Page

California Supreme Court Opinion ................... l

Concurring Opinion........................ 47

a eee eee 68

Order Denying Rehearing ........................ 106

re 107

COPY SUPREME COURT

FILED

JUN 12 1995

Robert Wandruff Clerk

IN THE SUPREME COURT OF CALIFORNIA

CUSTOMER COMPANY,

Plaintiff and Appellant, $035410

v. Ct. App. 3 C008668

CITY OF SACRAMENTO et. al, | Sacramento Super

Ct. No. 355131

Defendants and Respondents.

A felony suspect, reputed to be armed and dangerous,

took refuge in a store and refused to surrender. In the course of

apprehending the suspect, the police fired tear gas into the store,

causing extensive property damage. The issue we address is

whether the owner of the store may bring an action for inverse

condemnation against the public entities that employed the law

enforcement officers, on the theory that the damage caused by

the officers constituted a taking or damaging of private property

for public use within the meaning of the “just compensation"

clause of the California Constitution. (Cal. Const., art. I, § 19.)

For the reasons that follow, we hold that an action for

inverse condemnation does not lie in the present case to recover

damages caused by the efforts of law enforcement officers to

enforce the criminal laws. As we shall explain, uncer the

circumstances presented here the public entities involved may be

held liable, if at all, only in a tort action filed pursuant to the Tort

Claims Act. (Gov. Code, § 810, et seq.)

SEE CONCURRING AND DISSENTING OPINIONS

In October 1987, Customer Company (Customer) sued

the City of Sacramento (City) and Sacramento County (County),

alleging numerous causes of action, including inverse

condemnation and negligence. Customer alleged that on

June 22, 1987, police officers and deputy sheriffs “caused a

criminal suspect to hide" in Rogers Food and Liquor Store,

which is owned and operated by Customer, and caused extensive

damage to the store and its contents in their efforts to capture

the suspect.

In a series of rulings, the superior court granted judgment

on the pleadings in favor of City and County. As to the

negligence cause of action, the superior court ruled that City and

County were immune from liability pursuant to Government

Code section 820.2, which provides immunity to public entities

for their employees’ acts and omissions resulting from “the

exercise of ... discretion" by the employee. As to the inverse

nn ene

condemnation cause of action, the court ruled that, as a matter

of law, “the action{] of the police ... was a Proper exercise of the

police power to protect the public health, safety and welfare."

Customer appealed, and the Court of Appeal affirmed the

judgment. Customer sought, and was granted, review in this

court solely on the inverse condemnation issue.

Following oral argument, we requested supplemental

briefs addressing the issue whether Customer would be entitled

to relief under the Tort Claims Act (Gov. Code, § 810 et seq.).

In its supplemental brief, Customer expressly "waived the right

to relief under the Tort Claims Act."

As acknowledged by Customer in its Opening brief, the

facts of the present case are undisputed. Christopher Nash was

wanted for a series of armed robberies. On June 19, 1987, police

officers spotted Nash, who was reputed to be armed and

“extremely dangerous,” driving a stolen automobile with

"switched" license plates. Confidential informants had related

that Nash “always” carried a .380-caliber semiautomatic pistol

and had said "he wouldn't be taken alive, and he would shoot it

out with police officers." Nash apparently became aware of the

Officers’ presence, accelerated and began making numerous lane

changes, eventually eluding the officers.

At approximately 8 am. on June 22, 1987, Deputy

Sheriff Larry Chapman, dressed in plain clothes and driving an

unmarked vehicle, was conducting a surveillance of Nash's home

when Nash and his girlfriend, Violet Nelson, emerged from the

residence, entered the stolen automobile, and drove off. Deputy

Chapman followed and requested assistance, intending to stop

the vehicle once other officers arrived to assist him. He did not

inform the dispatcher that this was a covert operation. Before

such assistance arrived, Nash drove into the parking lot of

Rogers Food and Liquor Store, parked the vehicle, and entered

the store with Nelson. Deputy Chapman radioed a message that

Nash had entered the store. The deputy then parked on the

street and waited for assistance to arrive, intending to arrest

Nash when he left the store

Shortly after 8:30 a.m., four Sacramento police officers

in plain clothes and driving unmarked vehicles joined the

surveillance of Nash's vehicle in the parking lot of Customer's

store. But when a marked police vehicle and a marked sheriff's

vehicle with its emergency lights flashing drove into the parking

lot in response to the call for assistance, the officers concluded

Nash must have become aware of their presence and, fearing he

might escape through a rear exit, surrounded the building. Nash

did attempt to flee through a rear exit but, upon seeing law

enforcement officers, reentered the store.

Using the public address system in one of the police

vehicles, the officers ordered everyone to vacate the store. The

store clerk, Felipe Valverde, and Nash's girlfriend, Nelson, left

the store, but Nash did not. Valverde stated that no one except

Nash was inside the store and provided information about the

premises, including the number and locations of the exits to the

building and the telephone number inside the store. Nelson was

arrested and confirmed that Nash was inside the store. She

stated there were two firearms in his vehicle but asserted he was

unarmed. A .380-caliber automatic handgun and a shotgun with

the stock sawed off later were seized from the stolen vehicle

Nash had been driving. The police remained concerned that

Nash might be armed, despite Nelson's statement to the contrary

As one officer stated:

“You can't believe the [veracity] or the

truthfulness of any person under those

conditions, especially if it's the girlfriend talking

to her boy friend. Of course she's going to say

he's unarmed.”

Additional law enforcement personnel were called to the

scene. The police stopped traffic and evacuated the area around

the store so that, if there were gunfire, no bystanders would be

injured. Ambulances and fire department units were summoned

and asked to stand by.

Several more requests for Nash to surrender were made.

using the police vehicle's public address system. Nash made no

response and was not visible inside the store. The police

department's special weapons and tactics (SWAT) team was

summoned |

Police officers continued their efforts to convince Nash

to surrender. A trained negotiator attempted to telephone Nash

and used a loud hailer, or megaphone, to direct Nash to answer

the telephone. But Nash did not do so, and the telephone inside

the store later ceased operating. The negotiator then attempted

for an hour or two to communicate with Nash using a loud

hailer, but Nash did not respond.

The store clerk stated there was a listening device inside

the store, which revealed sounds of movement inside the

premises. Gas masks were distributed to the officers

surrounding the building, and the store's utilities were shut off.

Shortly after 11 am, Lieutenant George Mijares

determined that further efforts at negotiation were futile and

instructed the SWAT team to employ tear gas. Lieutenant

Mijares explained:

"I saw no need to wait any longer at that point.

We had about thirty or forty police personnel

tied up in this operation. Major traffic jam in the

area. We had the people out of the store, and I

saw absolutely no benefit in waiting any longer

because every effort we had made had no

beneficial result. There was no response

whatsoever from the store.... It was plain to me

that he was not going to communicate with us

" Po Oe way eS —— —

os a i a

voyerng

Lieutenant Mijares estimated that "maybe 70 percent of the day

shift" was present at the scene. He explained as follows his

reasons for ordering the use of tear gas:

“What we wanted to do was deploy tear gas,

which would force Nash to come out. He would

come out, be confused, his senses would be

impaired. The information [we had was that]

he's armed and dangerous, so if he was going to

be involved in a fire fight, he would be most

inaccurate and generally the suspect(s] come out

even without their weapons after being [a]ffected

by tear gas. So it was the safest way to do it for

everybody concerned."

Assistant Chief of Police for the City of Sacramento, Jerry

Finney, further noted:

"Even if tear gas should not induce voluntary

Surrender of an armed Suspect, then it reduces

the suspect's ability to offer armed resistance to

SWAT officers as they enter the building or

premises."

Lieutenant Matthew Powers, who at the time of the

present incident was a Sergeant and one of the City's two SWAT

team leaders, described as follows the reasons for the decision to

employ tear gas:

“a) Nash was believed to be armed and alsc

using ‘crank’, which is a street name for

amphetamines. Suspects using crank often

exhibit paranoid, erratic behavior. [{] b) Waiting

Nash out did not appear a viable alternative,

because he was barricaded in a convenience store

containing extensive provisions. In short, he

would not be soon starved out. And, attempts to

negotiate had proved futile. [§] c) I would not

want my officers entering the store without first

introducing tear gas, because the suspect had an

excellent field of fire at any approaching officer

due tc the physical characteristics of the store.

He could easily see out without disclosing his

location, and we could not see clearly the interior

of the store. If he were behind the coolers, then

the coolers would offer him excellent

concealment and, at the same time, afford him an

excellent field of fire over the interior of the store

and the outside approach to the store. [{] d)

There was no cover to utilize while rushing or

approaching the store front. [{]] e¢) We ruled out

entries through the roof because the store had a

drop ceiling. Any officer making entry through

the roof would probably disctose his location,

inviting fire, and yet, until fired upon, have no

idea of suspect Nash's location."

The SWAT team fired three rounds of tear gas into the

store and ordered Nash to surrender, but he failed to emerge

from the building. After a few minutes, more tear gas was fired

into the store and Nash again was ordered to leave the building.

When Nash did not appear, additional tear gas was fired into the

store and, approximately 30 minutes after the first tear gas

canister was fired, members of the SWAT team entered and

searched for Nash, without success.

Having determined that Nash was not on the ground

level of the store, the SWAT team fired several rounds of tear

gas into the attic. Shortly after noon, a SWAT team member

Saw a vent move on the roof of the store. A short time later,

mace was sprayed into some attic vents.

Ai 1:15 p.m, nearly five hours after Nash first was

ordered to leave the building, members of the SWAT team

reentered the store and located Nash hiding in the attic,

"burrowed under insulation." Apparently the gas had “rendered

him unable to offer resistance," and he was arrested and placed

into a patrol vehicle, where he collapsed. He was transferred to

an ambulance and taken to a medical center for treatment.

Damage to the store included numerous broken

windows, wall mirrors, and acoustical ceiling panels. The store's

entire inventory of food and other merchandise had been

contaminated with tear gas. An environmental consulting firm

hired by Customer determined the tear gas that had been used

constituted an “extremely hazardous" toxic substance as defined

by title 22 of the California Administrative Code, requiring "very

specific disposal techniques" for all contaminated items. With

the exception of liquids in sealed containers, which were

discharged into the sewer system upon governmental approval

being obtained and applicable fees being paid, the contaminated

items were shipped to, and deposited in, the Class I hazardous

waste dump located in Casmalia, California. The total property

damage exceeded $275,000, which (among other components)

included nearly $90,000 in contaminated inventory,

approximately $150,000 to dispose of this hazardous waste, and

over $18,000 to repair the building and fixtures.

An expert witness opined that an excessive amount of

tear gas had been employed. This expert estimated that 4 to 6

canisters "would probably [have been] adequate,” rather than the

12 or 13 canisters used. There was no evidence, however, that

the damage to the store and its merchandise would have been

less had only 4 to 6 canisters of tear gas had been used. To the

contrary, several witnesses stated that, in order to be effective,

sufficient tear gas must be employed to permeate the entire area

that is accessible to the suspect. The evidence indicates that the

store's merchandise was contaminated, requiring its disposal as

toxic waste , as soon as the first round of tear gas canisters

suffused the store with gas.

Ill

The context of the present case is familiar: Customer is

seeking to recover from City and County for property damage

caused to its store by the actions of public employees in the

performance of their public duties. What is unusual is the means

chosen by Customer to obtain such relief Customer has

abandoned its cause of action for negligence under the Tort

Claims Act (Gov. Code, § 810, et seq.), now contending solely

that it has a constitutional right to obtain recovery from the

public entities under an inverse condemnation theory.’ As we

shall explain, we conclude that the facts of this case do not

Although uncommon, such attempts to bring an action for inverse

condemnation--rather than for negligence--are hardly unprecedented. In a 1948

annotation discussing such efforts, it was observed: “When private property is

damaged by negligence of governmental agents ..., the primary obstacle with

which a litigant and counsel may be confronted, in attempting to secure redress,

is the traditional immunity of certain governmental bodies from liability for tort.

If recovery is to be had, this barrier must somehow be skirted, and the ‘eminent

domain’ theory is one way of attempting to go around it.” (Annot., Taking for

Public Purpose (1948) 2 A.L.R.2d 677, 678, fn. omitted.)

In a supplemental brief, Customer Suggested it may have had

additional reasons for abandoning its negligence cause of action: “Appellant's

attomeys fees and costs to date in this matter total $360,000.00. It... is not

willing to incur the additional expense of a trial of the issue {] whether the

police acted negligently, a trial in which even if Appellant prevails it will be

required to pay its attorney's fees." As discussed below, if Customer were to

prevail on its inverse condemnation cause of action, it would be entitled to

recover its costs, including attorney fees (Code Civ. Proc., § 1036), and the

judgment would include prejudgment interest of at least $] 85,784

(Redevelopment Agency v. Gilmore (1985) 38 Cal 3d 790, 797)

support an inverse condemnation claim under the applicable

provision of the California Constitution.’

Article I, section 19, of the California Constitution

(section 19) provides:

“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."

As is made clear by the text of this constitutional

provision, read as a whole, the "just compensation" clause is

concerned, most directly, with the state's exercise of its

traditional eminent domain power, guaranteeing that when the

state proposes to take private property for public use, the owner

? Customer does not base its claim upon the takings clause of the Fifth

Amendment to the federal constitution, which is applicable to the states through

the Fourteenth Amendment (Dolan v. City of Tigard (1994) ___—sU'S._

[129 L.Ed.2d 304, 114 S.Ct. 2309, 2316] and provides: "{NJor shall private

property be taken for public use, without just compensation.”

of the property promptly will receive just compensation.’ And,

as the words suggest, an “inverse condemnation" action may be

pursued when the state or other public entity improperly has

taken private property for public use without following the

requisite condemnation procedures--as when the state, in

constructing a public project, occupies land that it has not taken

by eminent domain, or when the state takes other action that

effectively circumvents the constitutional requirement that just

compensation be paid before private property is taken for public

use.‘

Although the requirement of "just compensation" has

been extended, in limited circumstance--beyond its traditional

context involving the taking or damaging of private property in

connection with public improvement projects--to encompass

government regulations that constitute the functional equivalent

> "Eminent domain is the right of the people or government to take

private property for public use." (8 Witkin, Summary of Cal. Law (9th ed.

1988) Constitutional Law, § 918, p. 467; see Code Civ. Proc., § 1240.010.)

"An inverse condemnation action is an eminent domain proceeding

initiated by the property owner rather than the condemner. The principles

which affect the parties’ rights in an inverse condemnation suit are the same as

those in an eminent domain action. [Citations.]" (Breiderti v. Southern Pac.

Co. (1964) 61 Cal.2d 659, 663, fn. 1; Bacich v. Board of Control (1943) 23

Cal.2d 343, 347; Mandelker, Inverse Condemnation: The Constitutional

Limits of Public Responsibility (1966) Wis.L.Rev. 3,4, fn.2.)

of an exercise of eminent domain,’ section 19, contrary to

Customer's suggestion, never has been applied to require a

public entity to compensate a property owner for property

damage resulting from the efforts of law enforcement officers to

enforce the criminal laws.

For example, in Dolan v. City of Tigard, supra, US, ___

[129 L.Ed.2d 304, 316, 114 S.Ct. 2309], the high court held that the just-

compensation clause limits the authority of a city to require that a property

owner, in order to obtain a building permit, dedicate a portion of his or her

property to the city for flood control and traffic improvements: “Without

question, had the city sumply required petitioner to dedicate a strip of land along

Fanno Creek for public use, rather than conditioning the grant of her permit to

redevelop her property on such a dedication, a taking would have occurred.

[Citation.}" In Lucas v. So. Carolina Coastal Council (1992) 505US.__,

___ [120 L.Ed. 2d 798, 813-814, 112 S.Ct. 2886], the high court considered the

rationale for the rule that a regulation that “denies all economically beneficial

or productive use of land” will be considered a taking: “Perhaps it is simply, as

Justice Brennan suggested, the total deprivation of beneficial use is, from the

landowner's point of view, the equivalent of a physical appropriation.

(Citation. ]" The opinion later notes “the practical equivalence in this setting of

negative regulation and appropriation.” (/d. at p. 815.) In Nollan v. California

Coastal Comm'n (1987) 483 U.S. 825, 831, the high court held that property

owners could not be required to allow a public easement over a portion of their

beachfront property in order to obtain a permit to demolish an existing structure

and replace it with a new residence: “Had California simply required the

Nollans to make an easement across their beachfront available to the public on

a permanent basis in order to increase public access to the beach, rather than

conditioning their permit to rebuild their house on their agreeing to do so, we

have no doubt there would have been a taking.” Terming such conditions

“extortion” (id. at p. 837), the opinion ends by stating that if California “wants

an easement across the Nollans' property, it must pay for it." (/d. at p. 842.)

Customer's argument that it may bring an action for

inverse condemnation is based upon a literal (and overly

simplistic) interpretation of section 19--an assertion that its

property was "damaged for public use" within the meaning of

that constitutional provision. But section 19 never has been

applied in a literal manner, without regard to the history or intent

of the provision. As Justice Oliver Wendell Holmes observed

regarding the analogous provision of the Fifth Amendment to the

federal Constitution: “[{T]he constitutional requirement of

compensation when property is taken cannot be pressed to its

grammatical extreme ...." (7yson & Brother v. Banton (1927)

273 U.S. 418, 445-446 (dis. opn. of Holmes, J.).)

As is demonstrated by both the history and the consistent

judicial interpretation of section 19, that provision never was

intended, and never has been interpreted, to impose a

constitutional obligation upon the government to pay "just

compensation" whenever a governmental employee commits an

act that causes loss of private property. Instead, as we shall see,

the addition of the “or damaged" language in the California "just

compensation" provision simply was designed to expand the

circumstances in which a private property owner may recover

when the state takes property for a public use, or when the

state's construction of a public work causes damage to adjacent

or nearby property owners. Neither the "taken" nor the “or

damaged" language ever has been extended to apply outside the

realm of eminent domain or public works to impose a

constitutionally based liability, unamenable to legislative

regulation, for property damage incidentally caused by the

actions of public employees in the pursuit of their public duties.

On the contrary, such property damage, like any personal injury

caused by the same type of public employee activity, has--

throughout the entire history of section 19--been recoverable, if

at all, under general tort principles, principles that always have

been understood to be subject to the control and regulation of

the Legislature.

The original version of our state's just compensation

provision, contained in the California Constitution of 1849,

applied only to private property that had been "taken for public

use." (Cal. Const. of 1849, art. I, § 8.) The federal constitution

contains identical language. As one commentator has observed

regarding the federal constitutional provision:

“The most historically settled application of the

Just Compensation Clause -- indeed perhaps the

only historically settled application -- is the

requirement that government must pay for

property it seizes through an exercise of eminent

domain.... Most of the original American state

constitutions contained no compensation clause,

and uncompensated seizures of property for

public roads and other uses were not unusual in

eighteenth-century America. While the legislative

history of the Compensation Clause is sparse, on

one point there is no historical doubt: from the

beginning of the republic to the present, the

‘sacred principle of compensation’ has always

been understood paradigmatically to express the

State's obligation to indemnify owners of

property taken through an assertion of eminent.

domain." (Rubenfeld, Usings (1993) 102 Yale

L.J. 1077, 1081-1082, italics in Original, fns.

omitted.)

The California Constitution of 1879 added the phrase “or

damaged" to the just compensation provision (Cal. Const., art.

I, former § 14), but this change was not intended to expand the

scope of the constitutional compensation provision beyond the

ambit of eminent domain and public improvements. It appears,

instead, that the words “or damaged" were added to clarify that

the government was obligated to pay just compensation for

property damaged in connection with the construction of public

improvements, even if the government had not physically

invaded the damaged property. (See generally 2 & 2A Nichols

on Eminent Domain (3d ed. 1990) §§ 6.22-6.26, pp. 6-157 to

6-190 [reviewing origin of “or damaged" clauses in various state

constitutional provisions]. )

Under the California Constitution of 1849, as at common

law, the owner of property taken for a public use was entitled to

compensation only if the government physically had invaded the

property. (Reardon v. San Francisco (1885) 66 Cal. 492, 498-

500) A review of the debates at the Constitutional Convention

of 1878-1879 reveals that the discussion of this aspect of the just

compensation provision centered upon whether a physical

invasion of the property would be a necessary predicate to the

compensation required in this context. A proponent of adding

the words “or damaged” to tne just competetion pruvisemn

explained his reasons as follows:

"In some instances a railroad company cuts a

trench close up to a man's house, and while they

do not take any of his property, it deprives him

of the use of it to a certain extent. This was

brought to my notice in the case of the Second

street cut in San Francisco. There the Legislature

authorized a street to be cut through, which left

the houses on either side high in the air, and

wholly inaccessible. It was destroyed, although

none of it was taken or moved away. There are

many such cases, where a man's property may be

materially damaged, where none of it is actually

taken.” (3 Debates & Proceedings, Cal. Const.

Convention 1878-1879, p. 1190.)

It seems apparent that the addition of the words “or

damaged" to the 1879 Constitution was intended to clarify that

application of the just compensation provision is not limited to

physical invasions of property taken for “public use” in eminent

domain, but also encompasses special and direct damage to

adjacent property resulting from the construction of public

improvements. There is nothing that indicates the provision was

intended to expand compensation outside the traditional realm

of eminent domain, or to require the payment of just

compensation for damage caused by the government's efforts to

enforce the criminal laws.

Furthermore, the expansive interpretation of section 19

proposed by Customer is uniformly refuted by governing

California authorities. In Reardon v. San Francisco, supra, 66

Cal. 492, the construction of a sewer in the street fronting the

plaintiffs’ property had compacted the soil, causing

“displacement and destruction of the foundation" that had

supported the plaintiffs’ houses. This court, examining for the

first time the addition of the words “or damaged" to the just

compensation provision, concluded that the former requirement

of a physical invasion of the property thereby had been

eliminated: “If the word ‘damaged only embraced physical

invasions of property, the right secured by this word would add

nothing to the guaranty as it formerly stood." (/d. at p.501.)

Accordingly, the government was required to compensate the

property owners for the consequential damage caused by the

public improvement, despite the circumstance that there had

been no physical invasion of the plaintiffs' property. (/d. at

p.506; Tyler v. Tehama County (1895) 109 Cal. 618, 625.)

In Brown v. Board of Supervisors (1899) 124 Cal. 274,

compensation was denied to the owners of property abutting a

public street that had been substantially narrowed, allegedly

resulting in a diminution in the value of the plaintiffs’ property.

This court made clear that the addition of the words “or

damaged" in the just compensation provision had not expanded

that guarantee to include compensation for any and all damage

to property:

“The provision in the constitution [guaranteeing

compensation for property ‘damaged’ for public

use] invoked by the [plaintiffs] was inserted

therein to provide for instances in which property

was not taken from the possession of the owner,

or into physical occupancy by the public, and

applies only to such damages as may be

recoverable under established rules of law. The

damage which the [plaintiffs] may sustain by

reason of a diminution in value of their lands is

not damage for which they are entitled to

compensation. [Citations.]” (/d. at p.281, italics

added.)

This court again narrowly interpreted the words “or

damaged" in Gray v. Reclamation District No. 1500 (1917) 174

Cal. 622. After repeating the general rule that damages resulting

from a valid exercise of the state's police power are damnum

absque injuria (i.e., a loss not giving rise to a cause of action),”

this court observed:

¢ — *[T he injury inflicted is without damage, and the damage without

injury, curtly expressed in the maxim ‘damnum absque injuria.' The nght of

the owner of the property, who has sustained such damage, must yield to the

promotion and advancement of the public good." (Reardon v. San Francisco,

supra, 66 Cal. at p. 504.)

"[W)hile it is unquestionably true that the

addition of the word ‘damaged’ to our

constitutional law governing the exercise of the

right of eminent domain gives in many instances

a right to compensation which did not formerly

exist, it did not, touching the exercise of the

police power, give a right of action for damages

which theretofore were damnum absque

injuria." (Id. at pp.640-641.)

In the 115 years since the words “or damaged" were

inserted into the just compensation provision, that guarantee

never has been expanded in the manner proposed by Customer.

In Miller v. City of Palo Alto (1929) 208 Cal. 74, the plaintiff's

property was destroyed as a result of fire caused by the city's

allegedly careless disposal of incinerated garbage. The plaintiff

sought damages from the city on two theories, negligence and

inverse condemnation. Our court rejected the negligence action

on the basis of the then-existing doctrine of sovereign immunity,

which barred such a tort action against the city. We then turned

to the inverse condemnation claim, which rested upon a theory

similar to Customer's contention in the present case -- namely

that the plaintiff's property had been "damaged" by an activity of

the public entity conducted for the public benefit. The court in

Miiler unanimously rejected this contention in no uncertain

terms:

“There is no merit in appellants’ contention that

the injury of which they complain constitutes a

taking of private property for public use. A

public use is ‘a use which concerns the whole

community as distinguished from a particular

individual or a particular number of individuals:

public usefulness, utility or advantage; or what is

productive of general benefit; a use by or for the

government, the general public or some portion

of it.' [Citation.]" (/d. at p.77.)

The holding in Miller -- that damage caused by the

negligent conduct of public employees or a public entity does not

fall within the aegis of section 19 -- has been followed repeatedly

and uniformly in the more than 60 years that have elapsed since

that decision was rendered. (Yee v. City of Sausalito (1983) 141

Cal.App.3d 917,920; Eli v. State of California (1975) 46

Cal.App.3d 233,235-236; Hayashi v. Alameda County Flood

Control (1959) 167 Cal.App.2d 584,591-592; Neff v. Imperial

Irrigation Dist. (1956) 142 Cal.App.2d 755,757-758.) In House

v. L.A. County Flood Control Dist. (1944) 25 Cal.2d 384, which

held that damage caused by the design of a public project gave

rise to an inverse condemnation action, then-Justice Traynor was

careful to explain that

"[t]he destruction or damaging of property is

sufficiently connected with ‘public use’ as

required by the Constitution, if the injury is a

result of dangers inherent in the construction of

the public improvement as distinguished from

dangers arising from the negligent operation of

Mt et

the improvement." (25 Cal.2d at p. 396 (conc.

opn. of Traynor, J.), italics added.)

Similarly, in Bauer v. County of Ventura (1955) 45

Cal.2d 276,286, this court, after concluding that property

owners could recover for the damage caused by flood waters

diverted onto their property by a public watercourse and

drainage system, took pains to explain that application of the

predecessor of section 19 did not

"subject the state to general tort liability under

the theory of eminent domain. The defendants

contend that the imposition of a duty to

compensate for improper maintenance of a public

improvement would impose liability for the act of

negligently forgetting to close a sluice gate or

other negligent acts committed during the

routine day to day operation of the public

improvement. But the raising of a ditch bank

appears on its face to be a deliberate act carrying

with it the purpose of fulfilling one or another of

the public objects of the project as a whole. . . .

The damage to property in this instance resulted

not from immediate carelessness but from a

failure to appreciate the probability that,

functioning as deliberately conceived, the public

improvement as altered and maintained would

result in some damage to private property.

Damage resulting from negligence in the routie

operations having no relation to the function of

the project as conceived is not within the scope

of the rule applied in the present case. (See

Miller v. City of Palo Alto, 208 Cal. 74. . .;

McNeil v. City of Montague, 124 Cal.App.2d

326... .; Western Assurance Co. v. Sacramento

& S.J. Drainage Dist., 72 Cal.App. 68 . . .; anno.

2 A.L.R.2d 677.)" (Italics added.)

In Albers v. County of Los Angeles (1965) 62 Cal.2d

250, this court, again considering the effect of the words “or

damaged" in section 19, held that the owner of property abutting

a public improvement was entitled to compensation where the

property was damaged as a result of the construction of that

public improvement. In Holtz v. Superior Court (1970) 3 Cal.3d

296, we referred to our decision in Albers as follows:

"In announcing our holding in Albers . . ., we did

not overlook the competing considerations which

caution against an open-ended, ‘absolute liability’

rule of inverse condemnation. Recognizing that

‘fears have been expressed that compensation,

allowed too liberally, will seriously impede, if not

stop, beneficial public improvements because of

the greatly increased cost' [citation], we deemed

it prudent to focus our policy inquiry on

situations which shared a general factual

similarity with that present in Albers. Thus we

limited our holdings of inverse condemnation

liability, absent fault, to ‘physical injuries of real

property’ that were ‘proximately caused' by the

improvement as deliberately constructed and

planned." (/d. at pp.303-304, italics added, fn.

omitted.)

In the present case, of course, the property damage for

which Customer seeks to recover bears no relation to a “public

improvement" or “public work" of any kind. Instead, the

damage was caused by actions of public employees having “no

relation to the function" of a public improvement whatsoever.

As the foregoing cases demonstrate, property damage caused in

such a manner never had been understood to give rise to an

action for inverse condemnation in California, but rather has

been treated as subject to the general tort principals applicable

to governmental entities.’

Any doubt that an action for inverse condemnation will

not lie in the present case is dispelled by consideration of those

cases applying the so-called emergency exception to the just

compensation requirement. The emergency exception has had

a long and consistent history in both state and federal courts. It

The foregoing discussion should make it clear that we do not agree

with the dissent's assertion that the issue presented by this case is one of first

impression in California. (Dis. opn., post, at p.____ [typed dis. opn., p. 4].) On

the contrary, the cited authorities make it clear that section 19 has been

interpreted, consistently and repeatedly over the past century, not to apply to

property damage caused by the type of governmental activity here at issue

is a specific application of the general rule that damage to, or

even destruction of, property pursuant to a valid exercise of the

police power often requires no compensation under the just

compensation clause.

“[I]n its legitimate exercise the police power

often works not only damage to property but

destruction of property. Injury to property can

and often does result from the demolition of

buildings to prevent the spread of conflagration,

from the abandonment of an existing highway,

from the enforced necessity of improving

property in particular ways to conform to police

regulations and requirements. . . . And equally

well settled and understood is the law that in the

exercise of this same power property may in

some, and indeed many, instances be utterly

destroyed. The destruction of buildings, of

diseased animals, of rotten fruit, of infected trees,

are cases that at once come to mind as applicable

to both personalty and realty. Always the

question in each case is whether the particular

act complained of is without the legitimate

purview and scope of the police power. If it be,

then the complainant is entitled to injunctive

relief or to compensation. If it be not, then it

matters not what may be his loss, it is damnum

absque injuria (damage without injury]." (Gray

v. Reclamation District No. 1500, supra, 174

Hs iaiiaiiiasiile

Cal. 622,638-639; Archer v. City of Los A ngeles

(1941) 19 Cal.2d 19, 24.)

In Holtz v. Superior Court, supra, 3 Cal.3d 296, 303, we

noted the limits of the rule that compensation is not required for

property damage resulting from a valid exercise of the police

power. The plaintiffs in Holtz owned property abutting

construction of a public transportation system -- property that

was damaged when extensive excavation deprived the plaintiffs’

buildings of lateral support. In holding that the plaintiffs were

entitled to compensation, we noted:

"(T]he ‘police power’ doctrine ‘[g]enerally . . .

operates in the field of regulation’. . . [T]his

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.‘

(Citation. ]" (/d. at p.305.)

In United States v. Caltex, Inc. (1952) 344 US. 149,

compensation was denied for an oil terminal facility in Manila

that the United States Army destroyed immediately prior to the

Japanese invasion of the Philippine Islands. The facility was

demolished in order to deprive the enemy "of a valuable logistic

weapon." (/d. at p.151.) Similarly, in United States v. Pacific

Railroad (1887) 120 U.S. 227, compensation was denied for

bridges destroyed during the Civil War by Union forces as the

Confederate army advanced. As in Caltex, the bridges were

destroyed “to prevent the advance of the enemy." (/d. at p.229.)

Fifty years ago, in House v. L.A. County Flood Control Dist.,

supra, 25 Cal.2d 384, 391, we recognized:

“Unquestionably, 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.]"*

* The dissent states that the emergency exception does not apply in the

present case because, in contrast, "[mJany, if not all,” of the California and

United States Supreme Court cases applying the emergency exception involved

property that had become a nuisance and had “already lost its compensable

value.” (Dis opn., post, at p. ___ [typed dis. opn., p.19].) But this statement

is not true as to three of the cases cited by the dissent in support of its assertion.

The bridges at issue in United States v. Pacific Railroad, supra, 120 U.S. 227

were destroyed by the military to slow the advance of enemy troops, not

because the bridges had become a nuisance or had lost any of their value. As

explained by our high court: "The safety of the state in such cases overrides all

In the same manner, law enforcement officers must be

permitted to respond to emergency situations that endanger

public safety, unhampered by the specter of constitutionally

mandated liability for resulting damage to private Property and

by the ensuing potential for disciplinary action. This court never

has sanctioned an action

considerations of private loss.” (/d. at p.234.) Similarly, the cedar trees

destroyed in Miller v. Schoene (1928) 276 U.S. 272 had not lost any of their

value. Rather, they were deemed a nuisance and were destroyed simply

because they harbored a pest harmless to cedar trees but ruinous to apple trees,

which were of greater commercial value. The high court recognized that,

because the cedar trees and apple

trees could not coexist in close proximity, the state was compelled to decide

which would be sacrificed: "When forced to such a choice the state does not

exceed its constitutional powers by deciding upon the destruction of one class

of property in order to save another which, in the judgment of the legislature.

is Of greater value to the public." (/d. at p.279.) F inally, Farmers Ins.

Exchange v. State of California (1985) 175 Cal. App. 3d 494 held the state was

not required to compensate Property owners for damage to the paint on their

automobiles caused by aerial spraying intended to eradicate the Mediterranean

fruit fly. Clearly, those vehicles did not constitute nuisances and had not lost

their value prior to the spraying

The dissent would not apply the emergency exception in

the present case because, it asserts, “the government itself was

a substantial cause of the emergency." (Dis. opn., post, at es

[typed dis. opn., p.2].) We do not agree. The government did

not create the situation of an armed and dangerous felon actively

attempting to avoid capture, nor did the government cause that

suspect to enter Customer's store or to refuse to leave when

lawfully ordered to do so by the police.

It is true that the unplanned entrance of marked patrol

vehicles into the store's parking lot altered Deputy Chapman's

plan to wait until the suspect emerged from the store before

attempting to arrest him. But, as the dissent appears to

acknowledge, this action by the authorities did not constitute a

taking of Customer's property within the meaning of section 19,

because it constituted, at most, an act of "routine negligence."

(Dis. opn., post, at pp. __,__ [typed dis. opn., pp.23, 25].)°

® Although the entry of the marked vehicles into the parking lot was

unplanned, as events unfolded it did not necessarily tum out to be a poor

strategy. Unknown to the officers at the time, the suspect had left his weapons

in the stolen automobile and was unarmed while inside the store. Had the

Suspect been permitted to return to the automobile, he might have resisted arrest

by firing his weapons, attempting to escape in the vehicle, or reentering the

store while armed and taking the store clerk hostage. Deputy Chapman, noting

that the suspect had vowed to “shoot it out" rather than be arrested, observed

that any attempt to arrest the suspect after he left the store posed its own

dangers and was not necessarily preferable to confronting the suspect while he

was inside the store: “So, knowing that, I am assuming he would run from us in

the car, and we'd have a vehicle pursuit, maybe shots fired, maybe collisions.

It didn't really make much difference . . . [4] It was just whatever fell in place

The dissent states:

"[T]he ‘emergency’ claimed by defendants, and

the involvement of plaintiffs 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." (Dis. opn., post, at p.__, [typed

dis. opn., pp.24-25].)

In other words, the government must be deemed to have “taken"

Customer's property within the meaning of section 19 because

the efforts of law enforcement officers to locate and capture a

felony suspect resulted in the suspect's taking refuge in

Customer's store. But the dissent would hold that section 19

does not apply where law enforcement officers attempt to

apprehend a suspect caught in the act of committing a crime,

because such action by the government would confer “a

significant private benefit" upon the owner of the “damaged

property." (Dis. opn., post, at p. _, fn. 7,p.___ [typed dis.

at the time, you go with it.”

Obviously, there is no easy or safe method for apprehending an armed

and dangerous suspect. Only a few days earlier, this suspect had detected the

presence of an undercover officer in an unmarked vehicle and eluded the police

by driving evasively. Although in the present case the suspect's refusal to

surrender resulted in considerable and regrettable damage to Customer's

property, it must be remembered that the law enforcement officers succeeded

in apprehending an armed and dangerous suspect without anyone being killed

or injured.

opn., p.17, fn. 7,p.23], italics omitted.)'® The dissent's rationale

Suggests that had the police followed Nash until he attempted to

commit another robbery, the government would be shielded from

liability under section 19, but that acting to prevent such a future

attempt on his part rendered the government liable. Not only is

such a distinction untenable, but an effort to apprehend the

suspect while he is engaged in the commission of a dangerous

felony would pose no less a threat of damage to private property

and a far greater one to the safety of innocent persons.

Customer relies upon decisions from two states that have

construed constitutional provisions (similar to our section 19) to

require public entities to compensate the owners of property

damaged by law enforcement officers in the course of enforcing

the criminal law. As explained below, we find these decisions

unpersuasive.

Wegner v. Milwaukee Mut. Ins. Co. (Minn. 1991) 479

N.W.2d 38 involved a situation quite similar to that in the

present case. A fleeing suspect took refuge in the plaintiffs

residence. Police surrounded the house and, when the suspect

It certainly could be argued that the government conferred a significant

private benefit upon Customer by removing the barricaded suspect from its

premises. Because Customer could not have operated the store while the

suspect was hiding inside, allowed him to remain indefinitely (he had ample

supplies of food and drink) eventually would have caused Customer to suffer

an equal or greater economic loss, as well as posing an intolerable threat to

public safety, both from the presence of the suspect inside the store and the

diversion of a large portion of the of the police force from its other duties.

ignored orders to surrender, fired tear gas canisters and “flash-

bang" grenades into the residence -- action resulting in the

capture of the suspect, but causing damage to the plaintiff's

home in the amount of $71,000. The plaintiff sought

compensation under a provision of the Minnesota Constitution

that closely resembles our section 19.'' The Minnesota Supreme

Court recognized “that this is not an eminent domain action and

should not be analyzed as such" (479 N.W.2d at p.40), but

nonetheless appeared to apply eminent domain principles,

concluding that just compensation was required because the city

had “taken” the plaintiff's property for a public use. Rather than

analyze and apply the law governing actions for inverse

condemnation, however, the Minnesota court relied upon “policy

considerations" to conclude that

"the better rule, in situations where an innocent

third party's property is taken, damaged or

destroyed by the police in the course of

apprehending a suspect, is for the municipality to

compensate the innocent party for the resulting

damages." (/d. at p.42.)

In reaching this conclusion, the court in Wegner placed primary

reliance upon the decision of the Texas Supreme Court in Steele

v. City of Houston (Tex. 1980) 603 S.W.2d 786.

'! Article I, section 13, of the Minnesota Constitution provides: "Private

property shall not be taken, destroyed or damaged for public use without just

compensation, first paid or secured.”

In Steele, escaped prisoners took refuge in a house

owned by the plaintiff. In order to capture the escapees, police

set fire to the residence, destroying the home and its contents.

Although observing that the case was not “one of eminent

domain or inverse condemnation" (Steele v. City of Houston,

supra, 602 S.W.2d at 789), the Texas Supreme Court relied

upon a literal interpretation of that state's just compensation

clause’? and concluded, without citation to additional authority

or supporting analysis, that the residence was taken

"for the public use . . . by proof that the City

ordered the destruction of the property because

of real or supposed public emergency to

apprehend armed and dangerous men who had

taken refuge in the house.” (Steele v. City of

Houston, supra, 603 $.W. 2d at 792.)

But the court then appeared to recognize the traditional

emergency exception to claims for just compensation by stating:

"The defendant City of Houston may defend its actions by proof

of a great public necessity. Mere convenience will not suffice.”

(/bid.) In the next paragraph, however, the decision appears to

contradict itself, suggesting without explanation or citation of

authority that the property owner was entitled to compensation

~ _ Article |, section 17 of the Texas Constitution provides: “No person's

property shall be taken, damaged or destroyed for or applied to public use

without adequate compensation being made... ."

without a determination whether the police were responding to

an emergency:

"We do not hold that the police officers

wrongfully ordered the destruction of the

dwelling; we hold that the innocent third parties

are entitled by the Constitution to compensation

for their property.” (/d. at p. 793.)

The opinion in Steele is poorly reasoned and internally

inconsistent. The opinion in Wegner relies primarily upon the

faulty reasoning in Steele. Neither decision gives serious

consideration to the body of authority governing actions for

inverse condemnation. Accordingly, we decline to follow these

decisions.

Moreover, the opinions in Wegner and Steele relied upon

by Customer do not represent a consensus on the issue before

us. To the contrary, nearly every other court to consider this

question has held that constitutional just compensation principles

do not apply to damages caused by law enforcement officers in

the course of performing their duties. Courts have held that an

action for inverse condemnation did not lie when police officers

executing a search warrant and arrest warrant fired smoke

grenades, tear gas canisters, and percussion and flash grenades

into a rented residence, causing a fire that destroyed the

residence (Patel v. U.S. (N.D.Cal. 1993) 823 F.Supp. 696, 699),

when a police officer entered the plaintiffs automobile and

ordered him to pursue another vehicle containing a fleeing

suspect, and the plaintiffs vehicle was damaged during the chase

when it collided with a parked truck (Blackman v. City of

Cincinnati (Ohio 1942) 42 N.E.2d 158, 160), when police fired

tear gas into the plaintiff's home to capture a felony suspect who

had taken refuge there (/ndiana State Police v. May

(Ind.Ct. App. 1984)469 N.E.2d 1183,1184, disapproved on other

grounds in Tittle v. Mahan (Ind. 1991) 582 N.E.2d 796,800),

when a volunteer's motor vehicle was damaged while he assisted

law enforcement officers in searching for a weapon involved in

a crime (Bray v. Houston County (Ga.Ct.App. 1986) 348 S.E.2d

709, 710-711), and when the police drained a pond on the

plaintiff's property in search of a body killing the plaintiff's fish

and damaging the pond (McCoy v. Sanders (Ga.Ct.App. 1966)

148 S.E.2d 902, 905). Although the reasoning of these cases

varies widely, each concludes that an action for inverse

condemnation does not lie to recover damages to property

caused by law enforcement officers in the course of performing

their duties.

In the present case an action for inverse condemnation

does not lie, because the efforts of the law enforcement officers

to apprehend a felony suspect cannot be likened to an exercise

of the power of eminent domain. This is not a case in which law

enforcement officers commandeered a citizen's automobile to

chase a fleeing suspect, or appropriated ammunition from a

private gun shop to replenish an inadequate supply.

Conceivably, such unusual actions might constitute an exercise

of eminent domain, because private property would be taken for

public use. (But cf. Blackman v. City of Cincinnati, supra, 42

N.E.2d 158, 160). Nothing of this sort occurred in the present

case, however. Application of the just compensation clause in

the present case would mean, for example, that every time a

police officer fires a weapon in the line of duty, that officer

exercises the power of eminent domain over any property that

the officer reasonably could foresee might be damaged as a

result. (See YMCA v. United States (1969) 395 U.S. 85, 92.)

To adopt Customer's position would be equivalent to

holding that by adopting the “or damaged" clause in 1879, the

voters abolished the then-existing doctrine of sovereign

immunity, at least as applied to damage to property. There is

absolutely nothing in the history of the constitutional provision

to support such a conclusion, fowever, and -- from 1879

through the adoption of the Tort Claims Act in 1963 -- the

Legislature and the courts of California uniformly interpreted the

“or damaged" clause as not effecting such a general repeal of the

governmental immunity doctrine. (See, e.g., Miller v. Palo Alto,

supra, 208 Cal. 74, 75-77; Muskopf v. Corning Hospital Dist.

(1961) 55 Cal.2d 211; see generally, 5 Witkin, Summary of

Cal.Law (9th ed. 1988) Torts, § 115 et seq. [discussing the

history of California's governmental immunity doctrine].)

Although in many circumstances it may appear "fair" to

require the government to compensate innocent persons for

damage resulting, for example, from routine efforts to enforce

the criminal laws, inverse condemnation is an inappropriate

vehicle for achieving this goal because it was not designed for

such a purpose. Thus, for example, inverse condemnation is

38 -

limited to damage to property and does not apply to damage

involving personal injury. In the present case, for example,

counsel for Customer acknowledged at oral argument that,

under its proposed theory, although Customer would have a

constitutional right to recover for damage to its store and its

merchandise caused by the tear gas, had a store employee been

on the premises, he or she could not recover, under the just

compensation clause, for any personal injuries suffered as a

result of the police use of tear gas. As explained below, this

anomalous result -- under which individuals would be afforded

protection against property damage caused by tortious

governmental conduct but not against personal injury caused by

the same act -- is avoided if governmental liability is evaluated,

as it should be, under the provisions of the Tort Claims Act.

(Gov. Code, § 810, et seq.)””

'3 The dissent, acknowledging that its interpretation of section 19 would

impose liability only for property damage and not for personal injury arising

from the same act, asserts: “[T]here is no doubt that for profound historical

reasons, the California Constitution, like its federal counterpart, is peculiarly

concemed with the power and temptation of unchecked government to decree

the uncompensated sacrifice of private property for the common benefit." (Dis.

opn., post, at p. __ [typed dis. opn., pp.17-18].) No authority is cited in

support of the dissent's theory that the respective drafters of our state and

federal Constitutions, with regard to the risk of harm posed by the type of

governmental actions here at issue, for “profound historical reasons" afforded

greater protection to private property than to the welfare of individuals.

a: ~~ a

The anomaly of elevating claims for property darsage

above claims for personal injuries arising from the same type of

governmental conduct is exacerbated by the special provisions

applicable to inverse condemnation actions, Because such Suits

originated as an adjunct to the law of condemnation (affording

real property owners a remedy when the government takes or

damages their property in the construction of a public works

project without first condemning the property and compensating

the owner), the remedies available in inverse. condemnation

actions are unusually generous to plaintiffs in several respects.

A prevailing plaintiff is entitled by statute to recover attorney

fees. (Code Civ. Proc., § 1036.)'* Even if the case is settled, the

attomey representing the public entity that effects the settlement

is required to include in the settlement a reasonable amount for

attomey fees and other costs. In addition, the costs to which a

prevailing plaintiff is entitled, whether the action is settled or

proceeds to judgment, also are quite generous in encompassing

all costs incurred from the time of the damage, including such

items as appraisal and engineering fees. (8 Witkin, Summary of

Cal.Law, supra, Constitutional Law, § 1062, p. 633.)

Code v Civil Procedure section 1036 provides: “In any inverse

condemnation proceeding brought for the taking of any interest in real property,

the court rendering judgment for the plaintiff by awarding compensation for

such taking, or the attorney representing the public entity who effects a

settlement of such proceeding, shall determine and award or allow to such

plaintiff, as a part of such judgment or settlement, such sum as will, in the

opinion of the court or such atlomey, reimburse such plaintiff for his reasonable

costs, disbursements, and expenses, including reasonable attorney, appraisal,

and engineering fees, actually incurred because of such proceeding.”

A prevailing plaintiff in an inverse condemnation action

also is entitled to prejudgment interest. Such interest accrues

not from the time the action is commenced, but from the time the

damage occurs. (Holtz v. San Francisco Bay Area Rapid

Transit Dist. (1976) 17 Cal.3d 648, 657.) Because the piaintiff

has a constitutional right to such prejudgment interest under the

just compensation clause, the Legislature cannot restrict this

right. (/bid. ["[I]nterest must be computed from the date the

taking or damaging was sustained in order to fulfill the

constitutional mandate for just compensation. (Citations. }"};

Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 759.)

The “ultimate determination of the rate of interest required for

‘just Compensation is a judicial function." (Redevelopment

Agency v. Gilmore, supra, 38 Cal.3d 790, 797.) The court must

determine “the prevailing market rate" of interest in order to

provide plaintiff the "full and perfect equivalent of the property

taken. [Citation.]" (/d. at pp. 796-797, italics in Original.)

Accordingly, Code of Civil Procedure sections 1268.311 and

1268.350, which provide that the rate of such prejudgment

interest shall be based upon "the rate of earnings by the Surplus

Money Investment Fund" for each six-month increment of the

applicable period, merely establish the minimum rate of

prejudgment interest. (People ex rel. Dept. of Transportation vy.

Diversified Properties Co. III (1993) 14 Cal.App.4th 429, 451.)

Allowing Customer to bring an action for inverse

condemnation not only would permit Customer to seek recovery

of its damages without complying with the requirements of the

Tort Claims Act, including its immunity provisions, '* but would

allow Customer as well to seek recovery of its attorney fees and

an award of prejudgment interest, neither of which would be

available in a negligence action under the Tort Claims Act.

Customer has alleged that the total property damage to its store

exceeded $275,000. Customer's attomey fees up to this point

total $360,000. Prejudgment interest for the alleged property

damage, from the date of the injury, currently would total at

least $185,784. Thus, the amount of attorney fees and

prejudgment interest far eclipse the amount of Customer's

property loss. We see no reason why a plaintiff seeking recovery

for property damage should be permitted to obtain the additional

benefit of attorney fees and prejudgment interest by bringing an

action for inverse condemnation, while a_ plaintiff seeking

recovery for personal injuries sustained by the same

governmental conduct would not be entitled to such

remuneration.

As noted at the outset of our Opinion, a conclusion that

the government's conduct in the present case does not give rise

to an inverse condemnation action under section 19 does not

necessarily mean that California law precludes a property owner,

like Customer, from recovering damages under the

'S Such an expansion of the takings clause of our state constitution

effectively would nullify all applicable governmental immunity statutes, such

as Vehicle Code section 17004.7, which governs vehicular pursuits, and

Government Code section 820.2, which immunizes discretionary governmental

acts.

circumstances involved in this case. Instead, the government's

potential liability for this type of conduct properly should be

evaluated, as it always has been in the past, under the provisions

of the Tort Claims Act. (Gov. Code, § 810 et seq.) In enacting

the elaborate and detailed provisions of that act, the Legislature

carefully considered the competing considerations that arise from

the imposition of liability upon the government in various tort

settings, and deliberately fashioned immunity provisions designed

to avoid deterring the government from proceeding with the

enforcement of important public policies. As noted above, to

allow Customer to bring an action for inverse condemnation

would “trump” all of the immunity provisions set forth in the

Tort Claims Act.

In the present case, Customer alleged a cause of action

for negligence under the Tort Claims Act in addition to its

inverse condemnation claim, but the superior court and the

Court of Appeal concluded that the defendant public entities

were immune from such tort liability, pursuant to Government

Code section 820.2, which (as noted above) provides immunity

for those acts and omissions of public employees resulting from

their "exercise of discretion." Customer did not seek review

from this portion of the Court of Appeal's ruling. Following oral

argument, we requested supplemental briefs addressing whether

Customer would be entitled to relief under the Tort Claims Act.

In its supplemental brief, however, Customer expressly "waived

the right to relief under the Tort Claims Act," offering the

following reason for this waiver: |

“[Customer]'s attorneys fees and costs to date in

this matter total $360,000. . . . [Customer] is not

willing to incur the additional expense of a trial

of the issues whether the police acted

negligently, a trial in which even if [Customer]

prevails it will be required to pay its attorney's

fees."

As noted above, were Customer to prevail in its causesof action

for inverse condemnation, it would be entitled to recover its

attorney fees.

In order to determine whether Customer could recover

under the Tort Claims Act, we would have to decide whether the

Superior court and the Court of Appeal were correct in

concluding that City and County are immune from liability

pursuant to Government Code section 820.2, which provides

that:

“a public employee is not liable for an injury

resulting from his act or omission where the act

Or Omission was the result of the exercise of the

discretion vested in him, whether or not such

discretion be abused,”

and Government Code section 815.2, subdivision (b), which

provides that:

“(e]xcept as otherwise provided by statute, a

public entity is not liable for an injury resulting

from an act or omission of an employee of the

public entity where the employee is immune from

liability."

This court has held that Government Code section 820.2

“confers immunity only with respect to those

‘basic policy decisions' which have been

committed to coordinate branches of

government, and does not immunize government

entities from liability for subsequent ministerial

actions taken in the implementation of those

basic policy decisions [citation].” (Lopez v.

Southern Cal. Rapid Transit Dist. (1985) 40

Cal.3d 780, 793.)

But we have not resolved whether the selection of the means

employed to effectuate an arrest is such a “basic policy decision"

to which the immunity applies. (See ibid. Nunn v. State of

California (1984) 35 Cal.3d 616, 622; Sanborn v. Chronicle

Pub. Co. (1976) 18 Cal.3d 406, 414-415: Tarasoff v. Regents of

University of California (1976) 17 Cal.3d 425, 445; McCorkle |

v. City of Los Angeles (1969) 70 Cal.2d 252; Johnson v. State

of California (1968) 69 Cal.2d 782, 797.) In light of Customer's

express waiver of its negligence claim, it would be inappropriate

for us to decide in the present case whether the immunity

provisions of Government Code section 820.2 apply under the

circumstances of the present case.

We observe that one remaining avenue may be open to

property owners in Customer's position. They may be able to

secure reimbursement for all or part of their loss from the public

entity under a statutorily authorized program established to aid

victims of crime. The Legislature has enacted Government Code

sections 29631 and 29632, which specifically authorize cities and

counties to establish reimbursement programs for damage of the

property of “innocent residents" caused by peace officers

engaged in detecting crime or apprehending suspects. '° Property

'© Government Code section 29361 states: "The Legislature hereby

declares that it serves a public purpose, and is of benefit to the State and to

every county and city in the state, to indemnify those innocent residents of the

State of California whose property has been injured or destroyed as a result of

the acts specified in Section 29632."

Government Code section 29632 states: "The legislative

body of a county or of a city may establish a program which provides for the

reimbursement of any innocent resident . . . whose property is or has been. . .

injured or destroyed as the consequence of: [] (a) An act of a peace officer in

the detection of a crime or the apprehension or arrest of any person for any

public offense; or [§] (b) An act of a person in resisting or avoiding arrest."

Government Code section 29636 provides that a court may

order a person convicted “of a crime which has resulted in the injury or

destruction of property for which reimbursement is provided for under a

program established pursuant to this article... . to pay a fine in an amount

sufficient to pay for the replacement or repair of the property injured or

destroyed..." A portion of such fine shall be used to pay claims pursuant to

that reimbursement program.

owners such as Customer appear to fall within the category of

innocent victims these statutorily authorized programs were

designed to benefit. It is worth noting that these Statutes, and

the reimbursement programs they authorize, would be

unnecessary if Customer were correct in its assertion that public

entities are required by section 19 to compensate property

owners for the damage they suffer as the result of efforts by law

enforcement officers to enforce the criminal laws.

For the foregoing reasons, we hold that the superior

court properly granted judgment on the pleadings, in favor of the

City and the County, on Customer's cause of action for inverse

condemnation

The judgment of the Court of Appeal is affirmed.

GEORGE, J.

WE CONCUR

LUCAS, C. J.

KENNARD, J.

WERDEGAR, J.

COPY

THE CUSTOMER COMPANY V. CITY OF

SACRAMENTO et al.

S035410

CONCURRING OPINION BY KENNARD, J.

In this case, the Customer Company (hereafter Customer

Co.) seeks compensation for damage to one of its convenience

store buildings and to food and other merchandise inside the

building. The damage was caused when police officers fired tear

gas into the store to dislodge a fugitive hidden inside. Customer

Co. bases its claim on the "just compensation" clause of the

California Constitution (article I, section 19), which gives a right

to just compensation when "“[p]rivate property [is] taken or

damaged for public use." I agree with the majority that our

precedents interpreting the just compensation clause provide no

support for the view that Customer Co. has a night to

compensation in this case, and I join in the majority opinion.

The majority's historical survey of just compensation

cases focuses on the words “taken or damaged" in the

constitutional provision for just compensation, and demonstrates

that those words have never been construed to encompass

property destroyed in the course of law enforcement activities

The cases the majority surveys, however, do not set forth a

coherent and consistent analysis of the limits of just

compensation that explains why there is no right to

compensation in this case. Nor is this surprising, for legal

commentators have long described the law of just compensation,

under both the California Constitution and the analogous federal

constitutional provision, as a field of doctrinal incoherence

littered with differing and inconsistent rationales. '

Notwithstanding the confusion that characterizes this

area of the law, in my view there is a straightforward analytic

basis for explaining why Customer Co.'s claim for compensation

falls outside the scope of our constitutional provision for just

compensation. Unlike the majority, I would focus on the word

"use" in the constitutional text. The just compensation clause of

1 See, e. g. Van Alstyne, /nverse Condemnation: Unintended Physical

Damage (1969) 20 Hastings L.J. 431, 431-32 ["[I]nverse condemnation . . . is

entangled in a complex web of doctrinal threads. . . . [Judicial opinions seldom

seek to reconcile these divergent approaches." (Fn. omitted.)]; Van Alstyne,

Statutory Modification of Inverse Condemnation: Deliberately Inflicted Injury

or Destruction (1968) 20 Stan.L-Rev. 617, 618 ["[A] disorderly and frequently

inconsistent array of judicial decisions on the compensability of claimed losses.”

(Fn. omitted. )}; Sax, Takings and the Police Power (1964) 74 Yale L.J. 36, 37

("{ T]he predominant characteristic of this area of law is a welter of confusing

and apparently incompatible results."]; Peterson, The Takings Clause: In

Search of Underlying Principles (Part 1) (i989) 77 Cal.L.Rev. 1299, 1304 ("it

is difficult to imagine a body of case law in greater doctrinal and conceptual

disarray"], Rubenfeld, Usings (1993) 102 Yale L.J. 1077, 1081 {"only the night

of privacy can compete seriously with takixgs law for the doctrine-in-most-

desperate-need-of-a-principle prize"].)

the state Constitution does not impose liability in every case in

which the government takes or damages property, buy only

when the government puts the property to some "use." (Cal.

Const., art. I, § 19.) Here, the police did not, in any meaningful

sense of the word, use the store windows that they broke or the

food and beverages that they contaminated with tear gas.

Because in this case there was no use by the government of the

property that was destroyed, there is no right to compensation

under the state Constitution's just compensation clause.

This does not mean, however, that those whose property

is destroyed by government action are left without any remedies

whatsoever. Not only the Tort Claims Act (Gov. Code, § 810,

et seq.), which the majority discusses, but also the federal civil

rights statute (42 U.S.C. § 1983; hereafter section 1983) provide

damages remedies for governmental deprivations of property.

In particular, section 1983 provides a remedy for damage or

destruction of property by law enforcement agents that violates

the Fourth Amendment or the due process clause of the federal

Constitution.

Plaintiff Customer Co. operates a chain of convenience

stores. A wanted fugitive entered one of Customer Co's

convenience stores in Sacramento. The store was surrounded by

police from the City of Sacramento and by sheriff's deputies from

Sacramento County. The fugitive refused to leave the store.

The police officers fired tear gas into the store, breaking plate

glass windows, damaging the store's interior, and contaminating

food and other items in the store's inventory with tear gas

residue.

Customer Co. sued the City of Sacramento and

Sacramento County (hereafter collectively referred to as

Sacramento), seeking to recover for the damage to its store and

the store's contents. Customer Co. alleged a claim for inverse

condemnation under the just compensation clause of the

California Constitution (art. I, § 19) as well as various tort

claims and a federal civil rights claim under section 1983 (42

U.S.C. § 1983). The superior court granted summary judgment

for Sacramento on all of Customer Co.'s claims. The judgment

was affirmed on appeal.

In this Court, Customer Co. seeks relief solely on the

basis of the just compensation clause of the California

Constitution. It has expressly abandoned its other theories of

relief that it raised in the trial court.

The text of the just compensation provision of the

California Constitution is found in section 19 of article |

(hereafter section 19), which provides in relevant part: "Private

hcl Maal Fata

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."

Section 19 was not intended to provide compensation for

every government-caused injury to property. As the majority

deimonstrates, our prior cases interpreting this constitutional

provision have never recognized any right to compensation for

property destroyed in the course of law enforcement activities,

as Customer Co.'s property was. Why is it, however, that the

just compensation clause does not provide compensation under

these circumstances?

In my view, a sound understanding of the just

compensation clause begins by returning to the words of the

constitutional text. In interpreting constitutional provisions, we

must give significance to every word. (City and County of San

Francisco v. Farrell (1982) 32 Cal.3d 47, 54.) As I noted at the

outset, the majority opinion focuses on the words "taken or

damaged" in section 19 and shows their historical limitation to

cases of eminent domain or consequential damages from public

improvements. There is another word of significance in section

19, however, and that is the word "use." Section 19 requires

that just compensation be paid only for “private property . . .

taken or damaged for public use." (Italics added.) Section 19

thus does not require just compensation every time property is

taken or damaged by the government, but only requires

compensation if there is some use by the government of the

property that it has taken or damaged. Customer Co.'s argument

for compensation is fundamentally defective because it ignores

the threshold requirement of section 19 that the government put

to some use the property it takes or damages.

Deciding whether a particular governmental action not

only takes or damages property but also amounts to a “use" of

that property may be a difficult question in some cases,

especially those involving the regulation of property.? Here,

however, the items of property for which Customer Co. seeks

2 Itis clear, however, that the government need not physically occupy

property or assert legal ownership of a recognized property interest in order to

put private property to use. For example, when the government enacts a

regulation that has the effect of dictating an exclusive, government-determined

use for a particular parcel of land, it "uses" that property just as much as if it had

acquired ownership of the land. The United States Supreme Court has noted

“the practical equivalence in this setting of negative regulation and

appropriation.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S.

__» __ [112 S.Ct. 2886, 2895; 120 L.Ed.2d 798].) It has observed that

“regulations that leave the owner of land without economically beneficial or

productive options for its use--typically, as here, by requiring land to be left

substantially in its natural

state--carry with them a heightened risk that private property is being pressed

into some form of public service" or, in other words, is being put to some use

by the government. (/d.atpp.__-__ [112 S.Ct. at pp. 2894-2895].) On the

other hand, there may be certain exceptional situations where even the

government's physical occupation of land does not amount to a “use” of the

land. (See Brown v. State of California (1993) 21 Cal.App.4th 1500, 1504

(holding that no compensation was due for state's occupation of a privately

owned parcel of land for 10 years in order to clean up hazardous waste on the

property, because the state's occupation was not a use of the land].)

compensation were not regulated or appropriated but were

physically destroyed by the government.

In the context of property that the government physically

destroys, the “use” requirement is, in the words of one

commentator,

“the difference between merely depriving

someone of something and putting that thing to

use by exploiting some productive capacity it

possesses. . . . [It] requires a utilization of

property going beyond mere deprivation... ."

(Rubenfeld, Usings, supra, 102 Yale L.J. 1077,

1115.)

Thus, “there is a taking for public use only when government

exploits, some productive attribute or capacity of private

property for state-mandated service... ." (/d. at p. 1113, italics

original.) Accordingly, whatever limits on the night to

compensation the use requirement may impose in other contexts,

it generally precludes compensation when property is destroyed

by the government without having been appropnated and put to

some use.

This court applied this understanding of “use" in denying

compensation for the government-caused destruction of a home

in Miller v. City of Palo Alto (1929) 208 Cal. 74, 77. In that

case, a city's disposal of smoldering incinerator ashes in a vacant

lot caused a fire which destroyed the plaintiff's house. The court

held that the plaintiffs were not entitled to compensation under

the just compensation clause of the state Constitution because

the city's destruction of their house did not put the house to a

“use by or for the government™ or put it to any “utility or

advantage." (/bid.)

The United States Supreme Court has similarly denied

compensation under the just compensation clause of the federal

Constitution in cases in which property was destroyed by the

government but not put to any use by it. For instance, in United

States v. Caltex (1952) 344 U.S. 149, the high court denied

compensation for a refinery that the government had destroyed

with "deliberation™ in advance of Japanese occupation, because

"[i]t was destroyed, of appropriated for subsequent use" (id. at

p. 155, italics added). The court distinguished other cases in

which compensation had been required for property

commandeered by the military by noting that those cases

"involved equipment which had been impressed by the Army for

subsequent use by the Army." (/d. at p. 153, italics added.)

Thus, even in the midst of war the government must pay

compensation if it takes a farmer's hay to feed its horses (no

matter how pressing its need for the hay), but not if it destroys

the hay crop by marching its soldiers through the hay field. (See

United States v. Pacific R.R. (1887) 120 U.S. 227, 239

[distinguishing

"the exemption of government from liability for

private property injured or destroyed during war,

by the operations of armies in the field, or by

measures necessary for their safety and

efficiency"

from the right to compensation

“where property of loyal citizens is taken for the

service of our armies, such as_ vessels,

steamboats, and the like, for the transport of

troops and munitions of war; or buildings to be

used as storehouses and places of deposit of war

material, or to house soldiers or take care of the

sick, or claims for supplies seized and

appropriated"].)

Likewise, in Miller v. Schoene (1928) 276 U.S. 272, the

United States Supreme Court upheld a state's action in

compelling the physical destruction without compensation of

valuable trees that the state did not put to any use. Miller's red

cedar trees were susceptible to cedar rust, a disease harmless to

Miller's cedars but injurious to nearby apply orchards. The state

required Miller to destroy her cedar trees but it did not put them

to any use; the high court held that the destruction of Miller's

cedars without compensation was constitutional. (/d. at pp.

277-278.) Thus, the question of whether the property has been

used has been a deciding factor for the high court in determining

whether the government must provide compensation for

property that it has destroyed.’

Applying the constitutional provision's "use" requirement

here makes this a straightforward case. The items of property

for which Customer Co. seeks recovery are its damaged

windows, doors, and ceiling and its tear-gas-contaminated

inventory. Although these items were damaged or destroyed,

they were not used by the government; the police officers did not

exploit any productive attribute or capacity of the property they

damaged or destroyed. The officers did not use the food and

beverages they contaminated, nor did they use the windows,

? The question of whether the government has made use of property has

also been determinative of whether compensation is required in other contexts.

(Compare United States v. Causby (1946) 328 U.S. 256, 264 [landowner had

nght to compensation for United States military overflights at height of 83 feet

during takeoffs and landings, “the flight of airplanes which skim the surface but

do not touch it, is as much an appropriation of the use of the land as a more

conventional entry upon it" (italics added)} with Hamilton v. Kentucky

Distilleries Co. (1919) 251 U.S. 146, 157 [prohibition of liquor sales that

rendered liquor valueless was not taking of liquor for public use because

"[Where was no appropriation of the liquor for public purposes” (italics

added)}; compare United States v. Pewee Coal Co. (1951) 341 U.S. 114, 117

{government seizure of coal mine to continue its operations during wartime

labor dispute was compensable taking for public use because government

thereby “engaged in the mining business”] with United States v. Central Eureka

Mining Co. (1958) 357 U.S. 155, 165-166 [no right to compensation where

government ordered gold mines closed for duration of war but “did not occupy,

use, OF in any manner take physical possession of the gold mines” (italics

added)}.)

doors, and ceilings they shattered. The damaged property did

not aid the officers in their efforts to capture the fugitive, and the

officers would have acted the same had the damaged property

not been present at all. As in Miller v. City of Palo Alto, the

destroyed property was not put to any “utility or advantage"

(Miller v. City of Palo Alto, supra, 208 Cal. at p. 77), nor was

it “affirmatively conscripted into service for a state-dictated use"

(Rubenfeld, Usings, supra, 102 Yale LJ. at pp. 1112-13).

Because in this case Sacramento did not put the property

it destroyed to any affirmative, productive use, Customer Co.

has no right to compensation under the just compensation

clause. Like the refinery in United States v. Caltex and the cedar

trees in Miller v. Schoene, Customer Co's property was

“destroyed, not appropriated for subsequent use” by the

government. (United States v. Caltex, supra, 344 US. at p.

155.)

Characterizing the capture of the fugitive here as a public

benefit does not transform the government's destruction of

Customer Co.'s property into a use of that property by the

government, as I shall explain. There was a collateral public

benefit in United States v. Caltex, supra, 344 U.S. 149, from the

government's destruction of the refinery before the Japanese

could capture it and take it over for their use, just as there was

a collateral public benefit in Miller v. Schoene, supra, 276 U.S.

272, from the destruction of Miller's cedar trees to prevent them

from serving as a host for the cedar rust that threatened the

nearby apple orchards, and just as there was a collateral public

benefit in Miller v. City of Palo Alto, supra, 208 Cal. 74, from

the municipal garbage incineration that caused the destruction of

the plaintiff's house. As in those cases, however, any collateral

benefit here to Sacramento from the law enforcement activity it

was pursuing did not arise from a use of the items of property

for which Customer Co. is seeking compensation.‘

The dissent contends that the government “use[s]' ... the damaged

property . . . in every case where deliberate government conduct undertaken for

public benefit physically . . . destroys, or damages private property. (Dis. opn.,

post, atp. ___ {typed dis. opn., p.16].) In doing so, the dissent erroneously

confuses “use” of property with “public benefit" from governmental conduct

affecting property. As this court recognized in Miller v. City of Palo Alto,

supra, 208 Cal. at page 77, and as the United States Supreme Court has

recognized in the cases cited in the text, however, the meaning of “use” is more

lumited than the dissent acknowledges. Those cases establish that, contrary to

the dissent, the government can destroy or damage property without putting it

to use. Nor do the cases cited by the dissent support its equation of use with

public benefit. Instead, the cited language addresses not whether the

government has put property to use but whether the use was public or private

(City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 69; Bauer v.

County of Ventura (1955) 45 Cal.2d 276, 284) or what the proper measure of

damages is for a compensable taking or damaging of property (Albers v. County

of Los Angeles (1965) 62 Cal.2d 250, 263).

The dissent also argues that a right to compensation arises whenever

“physical injury is the incidental consequence of deliberate government action

in furtherance of public purposes.” (Dis. opn., post,atp.__, fn. 7 [typed dis.

opn., at p.17, fn.7], italics original.) It relies, however, on cases of this court

involving public improvements in which: (1) the damaged real property was

itself put to use as a site for storing or conveying water (Locklin v. City of

Lafayette (1994) 7 Cal 4th 327; Bauer v. County of Ventura, supra, 45 Cal. 2d

276; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 637-638), or

The “use" requirement is a central part of the

constitutional text. To ignore it is to turn the just compensation

clause into a facially open-ended right to compensation for any

government action that affects the value or use of private

property. By contrast, if the word “use" in the constitutional

text is given its ordinary meaning, the just compensation clause

by its own terms no longer threatens absolute liability for any

and all government interference with private property. It

becomes a self-limiting constitutional provision.

Apart from the role of the word "use" in the

constitutional text, one might ask why "use" is a sensible

boundary for deciding which government takings or damagings

of property should be compensated. The answer may lie in the

function performed by the just compensation clause in preserving

(2) consequential damages resulted either from the government's use of private

land to provide lateral support for public improvements (Reardon v. San

Francisco (1885) 66 Cal. 492 [consequential damage to structure on private

land resulted when

government, by depositing fill on public roadway, caused soil on adjoining

private land to rise until it provided lateral support to roadway]; Albers v.

County of Los Angeles, supra, 62 Cal. 2d 250 [damage to hillside homes

caused by using privately owned hillside to support earth placed at top of hill

by the government]) or from the government's removal, in connection with a

use of its land, of earth that provided lateral support to adjoining private land

(Holtz v. Superior Court ( 1970) 3 Cal.3d 296). By contrast, in this case and

in the cases I cited earlier in the text, the government did not use the property

it destroyed, nor did the destruction occur as a form of consequer.itial damage

from an accompanying use of land, either in connection with a public

improvement or otherwise.

the autonomy of individuals against the government by

restraining the government's motive to take over their private

property for its own ends and uses. (See Rubenfeld, Usings,

supra, 102 Yale LJ. at pp. 1142-1146.) The role of this

function can be seen by contrasting the operation of the just

compensation clause with that of another constitutional

restriction on the government's power over private property, due

process.

The due process clauses of the state and federal

Constitutions (Cal. Const., art. I, § 7, U.S. Const., Amend. 14,

§ 1) generally require that the government provide notice and an

opportunity to be heard before it deprives a person of property;

it also prohibits arbitrary and unreasonable deprivations of

property. (/n re Marilyn H. (1993) 5 Cal.4th 295, 306-307;

Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. a

19, Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365,

395.) When the government causes a deprivation of property

but does not benefit from the deprivation by putting the property

to use for its own ends, the protections of due process generally

suffice to protect against excessive or erroneous deprivations of

property because the government has no self-interested motive

to take over the property; from that standpoint, it is indifferent

to the outcome of the decision as to whether or not deprivation

should occur.

The just compensation clause in effect recognizes that

governmental deprivations of property by which the government

thereby acquires something of value to the government--

something that it puts to use--are a special category of

deprivation in which the protections of due process are not a

sufficient safeguard. (See Rebenfeld, Usings, supra, 102 Yale

L.J. at p. 1119 [Discussing the analogous provisions of the

federal Constitution:

“Recall, moreover, what immediately precedes

the Compensation Clause: a Provision expressly

dealing with deprivations of Property--the Due

Process Clause—demanding certain protections in

the event that property is taken away [by the

government]. The Compensation Clause then

follows, making special Provisions for a specific

class of deprivations: cases in which private

property is not merely taken, but taken for public

use." (Italics original.)].)

Simply put, the government has a strong motive for taking

property it can put to some use; a motive that is lacking in the

case of property for which the government has no use. If

compensation were not mandated when the government takes

Property that it puts to use, this motive would lead the

government to acquire without limit property for its own use,

and would create an unavoidable conflict of interest between the

government's due process obligations to the property owner and

the government's interest in acquiring property for its own use

without cost.

By making compensation mandatory in cases where the

government uses the property it takes, the requirement of just

compensation acts as a check on the government's appetite for

property that it can put to use, an appetite that otherwise could

consume both the realm of private property and the political

autonomy of the individual against the government.

(See Chicago, Burl. & Quincy R.R. v. Chicago

(1897) 166 U.S. 226, 237 ["[A] government, by

whatever name it was called, under which the

property of citizens was at the absolute

disposition and unlimited control of any

depository of power, was, after all, but a

despotism... ."]; House v. L.A. County Flood

Control Dist. (1944) 25 Cal.2d 384, 391 ["It is a

principle of universal law that wherever the right

to own property is recognized in a free

government, practically all other rights become

worthless if the government possesses an

uncontrollable power over the property of the

citizen." (Lead opn.)]; Rubenfeld, Usings, supra,

102 Yale L.J. at pp. 1144-1145 ["“If the state had

unrestrained authority to direct the use of private

property, its power to dictate the shape of

society and the course of individual lives would

be almost limitless."}.)

The contours of compensation liability drawn by the "use"

requirement thus reflect the unique threat posed by the

government's incentive to take property that it can use.

Ill

In this court, Customer Co. has expressly abandoned any

possible ground for compensation other than the just

compensation clause of the California Constitution. We cannot,

however, permit Customer Co.'s concessions to limit our view

of the question before us. In approaching the problem of

government-caused destruction of private property it is a

mistake to view the just compensation clause as the sole restraint

upon governmental actions affecting private property or as the

sole remedy for losses caused by the government to private

property. Rather, it is important to recognize both that the just

compensation clause is only one of a number of constitutional

provisions, both federal and state, limiting government actions

affecting private property and that other remedies exist for

government-caused injuries to property.

The majority notes one potential avenue of relief, the

Tort Claims Act. (Gov. Code, § 810, et seq.) But there exists

another potential remedy for the type of government-caused

injury to property that occurred in this case. Section 1983, the

federal civil rights statute, provides a remedy in damages for

actions of state and local government that result in a “deprivation

of any rights, privileges, or immunities secured by the [federal]

Constitution."© (42 U.S.C. § 1983.) Depending on the

circumstances, state action that damages or destroys private

property may violate the due process clause of the Fourteenth

Amendment of the federal Constitution or the Fourth

Amendment's prohibition of unreasonable seizures. Such

unconstitutional state action can thus give rise to liability under

section 1983 as the "deprivation of [a] right[] . . . secured by the

Constitution."

Either procedural or substantive due process violations

can give rise to a section 1983 cause of action. Procedural due

process requires government officials to provide a hearing before

depriving individuals of property if “the officials know no

emergency exists, or . . . act with reckless disregard of the actual

circumstances." (Sinaloa Lake Owners Ass'n v. City of Simi

Valley (9th Cir. 1989) 882 F.2d 1398, 1406.) Substantive due

process prohibits government officials, regardless of the

procedural safeguards they employ, from taking or destroying

property when to do so is “clearly arbitrary and unreasonable,

having no substantial relation to the public health, safety, morals,

or general welfare." (/d. at p. 1407.)

* "Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any nights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress." (42 U.S.C.

§ 1983.) Attorney fees are available to a prevailing plaintiff in a section 1983

action under 42 United States Code section 1988.

The Fourth Amendment is another source of protection

against government interference with or destruction of property;

it prohibits unreasonable seizures of “houses . . . and effects" by

the government. (U.S. Const., Amend. 4.) Any meaningful

interference with an individual's possessory interests in property

is a seizure within the meaning of the Fourth Amendment.

(Sodal v. Cook County (1992) 506 U.S. __,___ [113 S.Ct.

538, 543].) The damaging or destruction of property by police

during !aw enforcement activities is therefore a seizure. If the

police act unreasonably in causing the damage or destruction

they violate the Fourth Amendment, and the property owner may

seek compensation for the destruction by means of a section

1983 action. (/d.atpp. _, - [113 S.Ct. at pp. 543, 548-

549].) In Sodal v. Cook County, sheriff's deputies participated

in a trailer park eviction during which a mobile home was

uprooted and towed to another location, damaging it in the

process. (/d. atpp. _- _ [113 S.Ct. at pp. 541-542].) The

United States Supreme Court held that the mobile home had

been seized within the meaning of the Fourth Amendment, and

that the mobil homeowner could thus bring suit under section

1983 for the damage caused to the mobile home by its forcible

relocation. (Jd. atp. _ [113 S.Ct. at p. 549].)

Thus, law enforcement activities that unreasonably

damage or destroy property, thereby seizing it within the

meaning of the Fourth Amendment, can give rise to liability

under section 1983. In Bonds v. Cox (6th Cir. 1994) 20 F.3d

697, 702, a homeowner stated a section 1983 claim by aileging

the police violated the Fourth Amendment when in the course of

executing a search warrant they caused damage to her home and

belongings, “which included broken doors, mutilated vinyl

siding, a cracked commode, holes in walls, broken dishes, and

trampled personal belongings . . ." Likewise, in Fuller v. Vines

(9th Cir. 1994) 36 F.3d 65, the police during an altercation with

the plaintiff shot and killed the plaintiffs dog. The plaintiff

stated a section 1983 claim by alleging that the destruction of his

dog by the police was an unreasonable seizure in violation of the

Fourth Amendment. (/d. at pp. 67-68.)

CONCLUSION

The just compensation clause of the state Constitution

requires compensation only when the government puts to some

"use" the property that it takes or damages. (Cal. Const., art. I,

§ 19.) The Customer Company's assertion that whenever

property is destroyed by deliberate law enforcement activities,

the government has thereby necessarily put the property to use

would read the word “use” and the limitation it imposes on the

scope of compensation liability out of the Constitution.

We are required, however, by settled principles of

constitutional interpretation to accord meaning to the word

"use." Because in this case the police did not make any use of

the property they destroyed, Customer Co. has no right to

compensation under the just compensation clause.

Finally, it bears emphasizing that the just compensation

clause is not the only constitutional provision that limits

governmental actions affecting private property, nor is it the only

potential monetary remedy available when government deprives

someone of property.

I would affirm the judgment of the Court of Appeal for

these reasons as well as for those stated in the majority.

KENNARD, J

COPY

CUSTOMER COMPANY v. CITY OF SACRAMENTO,

ET AL.

S$035410

DISSENTING OPINION BY BAXTER, J.

Plaintiffs 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 modern 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.

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

‘nformant had advised thet 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, “Roger's 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.

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.

Il.

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 determ’ne

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

crimefighting 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,

applied 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

Era RRR ERR OIE MR TREN RE ET?” *

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.

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.®

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

Article I, section 19, provides in full as follows: “Private property may

be taken or damaged for public use 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."

traditional eminent domain proceedings are possible or

appropriate.’

The majority admit that by adding the critical words “or

damaged" to article I, section 19 (compare Cal. Const. of 1849,

art. 1, § 8; U.S. Const., Amend. V, cl. 5), 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.) 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

I assume the majonty 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, cl. 5.)

protection applies only to injuries of that kind. (See Locklin v.

City of Lafayette (1994) 7 Cal.4th 327, 364, fn. 20.)

Finally, the majority assert that the California cases

“uniformly [refute]" the expansive interpretation of article |,

section 19, for which plaintiff 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; Albers v. County of Los

Angeles (1965) 62 Cal.2d 250; Bauer v. County of Ventura

(1955) 45 Cal.2d 276, Bacich v. Board of Control (1943) 23

Cal 2d 343; Brown v. Board of Supervisors (1899) 124 Cal. 274:

Tyler v. Tehama County (1895) 109 Cal. 618; 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 modern 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

6 -

and labels. When those purposes and policies are examined, they

disclose no sound basis for excluding all deliberate physical

property damage inflicted by public crimefighting 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,

Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575, fn.

3.)

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 ... 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,

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.” (/d., at pp. 318-319,

quoting Armstrong v. United States (1960) 364 U.S. 40, 49,

accord, Dolan v. City of Tigard (1994) 512 U.S. ___ [129

L.Ed.2d 304, 315-316].)

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’ ({Al/bers 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: ‘The decisive

consideration is whether the owner of the

damaged property if uncompensated would

contribute more than his proper share to the

public undertaking.’ \n 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, supra,

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.)

Of course, competing considerations limit the literal

reach of the constitutional provision. It is well settied 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.) 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, & Bacich v. Board of Control, supra, 23

Cal.2d 343, 350.)

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, 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

disappear[ed]."" (Lucas v. So. Carolina Coastal

Council (1992) 505 U.S. __ [120 L_Ed.2d 798,

812], quoting Penna. Coal Co. v. Mahon, supra,

260 U.S. 393, 415.)

Given the infinite ways in which the operations of

modern 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, 120

L.Ed.2d at p. 812, quoting Penn Central Transp. Co. v. New

York City (1978) 438 U.S. 104, 124.) 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,

129 L.Ed.2d 304, 317-323; Lucas v. So. Carolina Coastal

Council, supra, \20 L.Ed.2d at pp. 812-813; see also Loretio v.

Teleprompter Manhattan CATV Corp. (1982) 458 US. 419,

426, 435-440.)* Again, California law is in substantial accord.

8 As the majority point out (maj. opn., ante, p. _, fn. 5 [typed maj.

opn., at p. 10]), the high court had 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 ts the court's understanding that however

(See, e.g., Agins v. City of Tiburon (1979) 24 Cal.3d 266, 272-

277 [zoning ordinance which deprives landowner of

"substantially all reasonable use of his property"].)’

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

such 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, necessanly produces physical destruction or damage to

individual private property, that is the “functional equivalent” of eminent

domain -- Le., the government's “tak[ing]" or “damag{ing]” 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 nghts, it in

effect comes within the purview of the law of eminent domain and its exercise

requires compensation. [Citations.]" (/iouse v. L.A. County Flocd Control

Dist., supra, 25 Cal.2d 384, 388, italics added )

® Indeed, the constitutional provision applies, and a claim for inverse

condemnation wiil lie, evan against a governmental entity that has no direct

“eminent domain” power at all. “ “All that is necessary to show 1s that the

damage resulted from an exercise of governmental power while secking 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, quoting Suifin v. State of California (1968) 261

Cal.App.2d 50, 5S, italics added; see also City of Oekland v. Oakland Raiders

(1982) 32 Cal.3d 60,69; Bauer v. County of Ventura, supra, 45 Cal.2d 276,

284 )

expressly or implicitly (see, e.g., Gray v. Reclamation Dist. No.

1500 (1917) 174 Cal. 622, 639-642; Brown v. State of

California (1993) 21 Cal.App.4th 1500, 1504-1505; Farmers

Ins. Exchange v. State of California (1985) 175 Cal.App.3d

494, 501; see Freeman v. Contra Costa County Water Dist.

(1971) 18 Cal.App.3d 404, 408), precisely the opposite is true.

In modern 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

(1944) 25 Cal.2d 384, we explained that

“t]he state or its subdivision 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 purpose

is not prompted by so great a necessity as to be

justified without proper compensation to the

owner. [{Cl]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

a ae Ere

private property." (/d., 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, 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 on/y 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 mnoncompensable 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 modern Court of Appeal decisions are to similar

effect. For example, in Rose v. City of Coalinga (1987) 190

Cal.App.3d 1627, the court upheld an inverse condemnation

action seeking compensation for the summary demolition of a

building which city officials 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..." (/d., 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, Farmers Ins. Exchange v. State of California, supra, \75

Cal. App.3d 494, 501-503.)'°

10 In Holez v. Superior Court, supra, 3 Cal. 3d 296, we recognized one

other narrow exception to the rule that physical invasions of property arc

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 excepuon was that the government, like a private

mpanian owner at common law, had the right to confine surface waters within

their natural channels without liability for resulting flood damage to adjacent

lands. (/d_, at p. 305, see Archer v. City of Los Angeles, supra, 62 Cal.2d 250

262.) But modern recognition that inverse condemnation liability 1s not limted

by common law principles has led to further lumitation of this “flood control”

exception. It survives only in the vestigial principle that uf the government

acted “reasonably” in the design, construction, or operation of a flood control

The majority invoke the principal 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; Eli v.

State of California (1975) 46 Cal.App.3d 233, 235; Neff v.

Imperial Irrigation Dist. (1956) 142 Cal.App.2d 755, 757-758;

see Miller v. City of Palo Alto (1929) 208 Cal. 74, 76-77.) 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. Pate/ concluded as a 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

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 Lafavetie, supra, 7 Cal.4th 327, 367, Belair

v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 565-566.)

which compensation was not due under article I, section 19,

(823 F.Supp. at pp. 697-699.)

But Patels 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,

y))"

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

om a 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

"concerns the whole community or promotes the general interest

in its relation to amy 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.) Indeed,

“Ti}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 night 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 him out for a burden

which, under the Constitution, should be distributed throughout

the benefitted society at large.”

12 The concurning Opimon argues that | am mistaken in finding the

requirements of a “public use” to be satisfied in this case. Though it

acknowledges “incoherence” and inconsistency m the authorities, the

concurrence discerns the principle that a compensable public “use” does not

occur unless the government somehow conscnpts the targeted property and

presses it into “affirmative productive” service. (Conc. opn. of Kennard, J ,

ante, at p. ___ [typed conc. opn. at p. 8].) 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 stuppets of caselaw support this limited view of “public use,”

but the concurrence's analysis does not withstand close scrutiny. On the

contrary, it 1s a fundamental tenet of inverse condemnation law that with limted

exceptions, compensation 1s due for incidental physical injury as well as for

direct appropnation 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 the

adjacent excavation for a public transit system in Holtz v. Superior Court,

supra, 3 Cal. 3d 296, or the homes tha: suffered landslide damage as the result

of a nearby road construction project in Albers v. County of Los Angeles,

supra, 62 Cai.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 ( ‘oalinga,

supra, 190 Cal App.3d 1627

These and numerous other California cases have stated or assumed

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; Steele v. City of Houston (Tex. 1980) 603 S.W.2d 786.) In

both cases, the homes of innocent persons were seriously

from ume 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 amage (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 maintaenance of a canal for the “public use,” failure to

compensate violated Nebraska's constitutional proscnption against taking or

damaging “for public use"), Tormey v. Anderson-Cottonwood Irr. Dist. (1921)

53 Cal. App. 559, 568 (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; Pumpelly v. Green Bay Company (1872) 80 U.S.

(13 Wall.) 166, 177-181, 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 concuring opinion's attempt to

characterize the facts differently, the police did put plaintiff's property to “public

use” by sacrificing it as the deliberate means of achieving their law enforcement

purpose.

damaged when the police used tear gas or explosive devices to

flush out fugitives who had fortuitously 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.”

As authonty against these two decisions, the majority cite /ndiana

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 fort action by the “law enforcement" immunity of Indiana's

Tort Claims Act. As an afterthought, May dismissed in two terse sentences the

plainuff's alternate “takings” claim. The court simply declared, without analysis

or citation, that the conduct alleged was “in the nature of tort." (/d., at p. 1184.)

May's failure to distunguish 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

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.

I therefor 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.

Ili.

As the majority suggest, both state and federal law have

recognized a limited number of specific situations where

discussion, post.)

Paiste: Se NAAT Olin Bs

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aN aici baa dda is eb ok a hint ite i et

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 mght 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.)

One prominent commentary has suggested that the so-

called “emergency” exception is justified so/ely 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 (Sth 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. County Flood 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 [wartime destruction of refinery about to

fall to Japanese];"* Miller v. Schoene (1928) 276 U.S. 272

[destruction of ornamental trees harboring pests ruinous to

nearby commercial apple orchards]; United States v. Pacific

Railroad (1887) 120 U.S. 227 [military demolition of railroad

bridges in path of advancing Confederate forces]; Bowditch v.

Boston (1879) 101 U.S. 16 [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]; Jeresi 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]. )'*

'* 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 US. at p. 155.)

1S 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 mule 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

However, the cases do not uniformly assert nuisance as

the sole basis for an "emergency" exception, and they contain

suggestions of a somewhat 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 recogni{tion] 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.)

We ourselves have asserted that

"under the pressure of public necessity and to

avert impending peril, the legitimate exercise of

if 1t was not, he is entitled to compensation for its destrution. [Fn. omitted] It

may well be a reasonable method and necessary for the public health to destroy

lirst 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 ts entitled to compensation. [Fn. omitted.]" (1 Nichols,

Emunent Domain (3d ed. 1992) § 1.42[15], pp. 552-553.) California law is in

acoord. (Rose v. City of Coalinga, supra, 190 Cal.App.3d 1627, 1635; Leppo

v. City of Petaluma (1971) 20 Cal.App.3d 711, 719; see Armistead v. City of

Los Angeles (1957) 152 Cal.App.2d 319, 323-324; 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).)

One ai ate io aiirte ee fee ss ay te a hae Se ee he ila lag, Nb dae cg fee

RO nt tao A AT CE ROSE oc. Ste Fale ERAN OS EOD : a

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 cordition, and private interests

must be held wholly subservient to the right of

the state to proceed in such manner as it deems

appropnate for the protection of the public

health or safety. [Citation.]" (House v. L.A.

County Flood Control Dist., supra 25 Ca\.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: "[glovernment could

hardly go on" (Penna. Coal Co. v. Mahon, supra, 260 U.S. 393,

413) 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, italics added.)

Earlier, in United States v. Pacific Railroad, supra, 120 U.S

227, the court 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.)

By parity of reasoning, it may be appropnate 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. '°

6 . i .

Even this justification for an “emergency” exception 1s not free from

analytical doubt. Indeed, one commentator has suggested that "[dJestruction of

private property to prevent it from falling into enemy hands in wartime or to

As indicated above (ante, at p. __, fn. 7 [typed dis.

opn., at p. 17]), 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 majonty's wornes about “stray bullet"

damage, there may be grounds for concluding that the

government ts not liable for every kind of minor, incidental injury

deny its combustible elements to a raging fire -- the typical instances of [so-

called] °demal destruction’ -- has all the earmarks of a taking of pnvate property

for public purposes, surely a legitimate and therefore compensable public ‘use’

within consututional standards... Thus, where just compensation 1s denied, one

would expect to find overnding reasons for disregarding the literal application

of the constitutional

mandate. [4] ...[Yet] [nJone 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.)

100

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 apply to insubstantial peripheral damage which

anses 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 wi// 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.

101]

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 conditions. 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 negligence."

However, the policy strategy for apprehending Nash also

involved more considered actions and judgments, undertaken

over the preceding hours and days in an atmosphere notably free

102

of emergency pressure. These were the overriding reasons that

Nash, onginally 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 nght or wrong. Either

way, | am persuaded that the government cannot escape its

constitutional obligation to compensate plaintiff, an innocent

bystander, for the extensive damaged caused by the deliberate

execution of the public enterprise."’

7 «

; The majonty claim | suggest unreasonably that the government was

somehow “responsible” for Nash's refusal to surrender They find illogic in my

asseruon that the damage inflicted in this case requires compensation, even if

other cnumefightung damage might not. And they point to evidence that trapping

Nash inside the store, instead of conlronting him on the street or elsewhere, “did

not necessanly turn out to be a poor strategy.” (Maj opn.,, anie,atp. _, in

9 [typed maj. opn. at p. 22].) Of course, the issue 1s not whether the police are

accountable for the predictable efforts of a trapped figitive to resist capture. |

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 1s no

legitimate basis for application of an “emergency” exception And the

mayonty's implication that the police may have done nothing wrong by trapping

Nash in the store 1s wrelevant for constitutional purposes. As | have explained,

the just compensation clause doe not target the government's fault, poor

judgment, or abuse of authonty. Instead, it assumes the government's actions

and decisions were valid, but nonetheless protects against undue invididual

sacrifice for the public benefit

103

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 physical damage was

itself inflicted as a deliberate means of resolving the crisis, the

well established intendments of the Constitution must be

honored

| would reverse the judgment of the Court of Appeal

BAXTER, J

104

WE CONCUR

MOSK, J

ARABIAN, J

THE CUSTOMER COMPANY V. CITY OF SACRAMENTO

$035410

Counsel Who Argued For The Parties

FOR APPELLANT Matthew Graham

Aiken, Kramer & Cummings, Inc

One Kaiser Plaza, Suite 550

Oakland, California 9461} 2

(510) 834-6800

FOR RESPONDENT CITY John M. Laplante

Edson & Laplante

2450 Venture Oaks Way, Suite 300

Sacramento, California 95833

(916) 923-9111

FOR RESPONDENT

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