Is a city liable for destroying a private residence in the process of releasing a hostage and preventing her captor from inflicting harm to others?  Citing case law from 1788, the United States Court of Appeals for the Fifth Circuit recently held, no.

On July 25, 2020, Deanna Cook, was staying at house of her mother, Vicki Baker, in McKinney, Texas, preparing the house for sale.  Baker’s dog was also present at the home. That morning, Cook saw a Facebook post that Wesley Little was on the run with a 15-year-old female “runaway.” Cook recognized Little because he has worked on Baker’s house more than a year before the incident occurred.

Shortly thereafter, Little arrived at Baker’s house with the 15-year-old girl and knocked on the door. Cook answered, and Little asked to come in and to put his car in the garage. Cook recognized the girl and, though frightened, formulated a plan to help: She agreed to let Little into the house, but then told him, falsely, that she had to go to the supermarket. Once away from the house, she called Baker and described the situation, and Baker called the police.

City police arrived soon after and secured the perimeter of the house.  Officers employed a BearCat, an armored personnel carrier, and engaged in loud hailing using an intercom system. Soon after, Little released the girl and she exited the house. The girl told police that Little was in the attic, heavily armed, and high on methamphetamine.

Little communicated to the police that he had terminal cancer, wasn’t going back to prison, knew he was going to die, and 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.

The explosions left Baker’s dog permanently blind and deaf. The toxic gas that permeated the house required the services of a HAZMAT remediation team. Appliances and fabrics were irreparable. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), and bricks needed to be replaced in  addition to the windows, blinds, fence, front door, and garage door. Essentially all of the personal property in the house was destroyed, including an antique doll collection left to Baker by her mother. In total, the damage was approximately $50,000.

Baker filed a claim with the City of McKinney, which disclaimed liability for the damage. She also filed a claim with her property insurer, which also denied coverage. Community members, hearing of her plight, donated money and Baker’s insurer ultimately paid some of the claim, as well.

Baker proceeded to file suit against the City, arguing that the police’s destruction of her house constituted an unconstitutional “taking” of her property. Filing suit under the Takings Clause of the 5^th Amendment and the 14^th Amendment of the United States Constitution, 42 USC §1983, and the Texas Constitution, Baker survived summary judgment at the trial court level and obtained a jury verdict of $44,555 in property damage and $15,100 in personal property damage.  Baker opted to obtain a judgement under the 5^th Amendment (through §1983) and vowed to use the proceeds to pay back all the community members who had donated money to her after her house was destroyed.

On appeal, the Fifth Circuit in Baker v. City of McKinney, was asked to determine whether the City’s destruction of Baker’s house was an unconstitutional taking, requiring reimbursement to Baker, or whether a “necessity” exception existed.  The Court delved deep into historical precedent, citing a case decided in 1788, years before the Takings Clause in the 5^th Amendment was ratified in 1791.  In Respublica v. Sparhawk, 1 U.S. 357 (Penn. 1788), the Pennsylvania Supreme Court cited even older English treatises for the proposition that, “in time of war, bulwarks may be built on private ground and houses may be razed to prevent the spreading of fire, because for the public good.”

The Baker Court, relying on Sparhawk and other precedent, found that “history, tradition, and historical precedent reaching back to the Founding supports the existence of a necessity exception to the Takings Clause.” Applying this rule and reversing the trial court’s denial of the City’s motion for summary judgment, the Court held that the Takings Clause did not require compensation for Baker’s damaged or destroyed property because it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons.

The attorneys in our Austin and Dallas office have extensive experience in handling property damage claims.  Please contact us at info@gstexlaw.com if you have any questions.

Legal Disclaimers

This blog is made available by Gerstle Snelson, LLP for educational purposes and to provide general information about the law, only.  Neither this document nor the information contained in it is intended to constitute legal advice on any specific matter or of a general nature.  Use of the blog does not create an attorney-client relationship with Gerstle Snelson, LLP where one does not already exist with the firm.  This blog should not be used a substitute for competent legal advice from a licensed attorney.

©Gerstle Snelson, LLP 2023.  All rights reserved.  Any unauthorized reprint or use of this material is prohibited.  No part of this blog may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of Gerstle Snelson, LLP.