“By any means necessary” has been determined to be the same thing as “minimal intrusion” by far too many courts. When cops are searching for suspects, they’re pretty much free to destroy anything that stands between them and their (wanted) man, even if it means a wholly innocent house gets leveled in the process.
It’s one thing when cops are seeking a fugitive or suspect at a place where they actually reside. It’s a bit different when cops pursue a suspect who then seeks refuge in a home owned by someone else — someone who clearly has no desire to harbor a fugitive.
You’d think that would factor into the force equation. But it never does. What happens is this: the inanimate objects that make a house a home — doors, walls, windows, roofs — are treated as obstructers of justice, something to be subdued or eradicated. Battering rams, flashbangs, assault vehicles, shotgun shells are all deployed to ensure the house cannot continue to harbor a fugitive.
And sure, that might mean something if it was the fugitive’s home. At that point, the responsibility most likely lies with the criminal suspect. But when it’s an innocent homeowner (and an innocent homeowner) caught in the crossfire, the calculation somehow doesn’t change.
McKinney, Texas resident Vicki Baker is one the unfortunate people who’ve seen their homes destroyed by government employees who don’t care what they destroy en route to getting the job done. Baker fired her handyman, Wesley Little, in 2018. Nothing more came of that until July 2020, when Wesley Little decided to return to this house to hide out after being wanted by law enforcement for the abduction of a 15-year-old girl.
Baker’s daughter answered the door when Wesley rang, choosing to exit the premises and call the police because she had seen news reports identifying him as a kidnapping suspect. This good deed did not go unpunished.
SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker’s fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.
Vicki Baker sued. And for good reason. In addition to her daughter informing cops about the location of their kidnapping suspect, Baker provided officers with plenty of options that didn’t involve destroying her home. The officers used none of the non-violent options and chose to decimate Baker’s home to apprehend the suspect.
The district court said this completely foreseeable outcome of these actions did not permit the city to escape Baker’s lawsuit. Inadvertent damage is one thing but damage deliberately caused despite a wealth of less-damaging options is something else. It allowed Baker’s lawsuit to continue.
Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.
The city appealed. And that case landed in the cop-friendliest appellate district in the nation: the Fifth Circuit. You can already see where this is headed, but here’s the Fifth Circuit spelling it out in the intro to its decision [PDF]:
We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.
Note that first sentence: this is both historical and precedential. This means the Fifth Circuit has created a rule that explicitly allows police officers to destroy personal property so long as they can claim there was a law enforcement reason to do so. Future litigants in Baker’s unfortunate decision will find themselves in an even more disadvantageous position, thanks to this ruling.
But the reasoning is flawed, starting with the cops’ own justification. By the time they surrounded the house, there was no possibility of “imminent harm to the hostage child.”
Soon after, Little released the girl and she exited the house.
All they had now was a fugitive, albeit one the now-released 15-year-old assured cops had access to “long guns” and was “obviously high on methamphetamine.” While this person may have been privy to the location of guns stored in Baker’s house, it’s highly unlikely she told cops (at least not in these exact words) Little was “high on methamphetamine.”
That’s neither here nor there, though. Whatever was said or unsaid, the cops chose their plan of action, and that plan involved destroying the house despite being given access and an open invitation to enter the house through a variety of entrances.
There are also obvious gaps in the officers’ testimony, even if the Fifth Circuit is unwilling to examine that issue any further.
Little somehow “communicated to” police that he “had terminal cancer, wasn’t going back to prison, knew he was going to die, was going to shoot it out with the police.” Police proceeded to use explosive devices, the BearCat, a T-Rex (similar to the BearCat), toxic gas grenades, and a drone to try to resolve the situation. After some time, the drone was able to reach a vantage point to see that Little had taken his own life.
No further information is given about this supposed death wish. Nor is there much on the record that supports the Fifth’s extremely exonerative presentation of this home invasion — that all of this destruction was necessary to “resolve the situation.” That the suspect had already committed suicide suggests the cops could have “resolved” this without destroying Baker’s home. And, while I understand courts aren’t there to second-guess law enforcement, this one could have at least taken a longer look at this unsupported “death by cop” assertion.
None of that gets attention. And the Fifth Circuit, relying on the plaintiff’s acknowledgment some level of damage may have been necessary to locate/apprehend the suspect, overlooks the side effects of this destruction, even while quoting the lower court’s assessment of this needlessly violent raid:
The explosions left Baker’s dog permanently blind and deaf. The toxic gas that permeated the House required the services of a HAZMAT remediation team. Appliances and fabrics were irreparable. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), and bricks needed to be replaced—in addition to the windows, blinds, fence, front door, and garage door. Essentially all of the personal property in the House was destroyed, including an antique doll collection left to Baker by her mother. In total, the damage . . . was approximately $50,000.
Oh well, shrugs the Fifth Circuit. That’s the price Baker has to pay for availing herself of government services, even if she was in no way culpable for this fugitive’s decision to (temporarily, it turns out) hide out in her home.
In sum, history, tradition, and historical precedent reaching back to the Founding supports the existence of a necessity exception to the Takings Clause. Today, we make no attempt to define the bounds of this exception. We hold only that in this case, the Takings Clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself claims, it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons. We need not determine whether the necessity exception extends further than this.
In other words, if you agree to be governed, render under Caesar what is Caesar’s (even if it’s your home) and unto God, God’s. But unto the rest of us, what exactly? Citizens render and/or are rendered. You can simultaneously agree cops needed to perform some destruction to arrest a criminal without ceding that they can engage in as much destruction as possible when affecting arrests. And if the government wants to tax you for the services rendered, it can. But it should also be willing to pitch in when it comes to cleaning up the messes it’s created.
None of that’s going to happen here, even if the Fifth Circuit is sympathetic to Baker, if not her actual legal arguments. It notes that the Takings Clause has been interpreted to read that no individual should be forced to bear the costs of government actions that should be borne by all. Despite that, it still arrives at the conclusion that Baker alone should pay for the damage caused by the government. And that’s the baseline affirmed and established by the Fifth Circuit in this decision, which means cops in the Fifth Circuit won’t be dissuaded from engaging in needless destruction of personal property for the foreseeable future.
Fifth Circuit: The Government Doesn’t Need To Pay You For The Home It Destroyed To Effect An Arrest
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