by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONSTITUTIONAL LAW; TAKINGS; PHYSICAL TAKINGS; LAW ENFORCEMENT ACTION: Divided California Supreme court holds that damages to property in the course of law enforcement apprehension of criminals (who are unrelated to the property owners) is not compensable as a taking. Customer Co. v. City of Sacramento, 41 Cal. Rptr. 2d 658 (Cal. 1995)

This is a case fraught with potential significance, especially as it arises in the thick of public discussion of alleged police excesses in the apprehension of suspects in Ruby Ridge and Waco.

Plaintiff was the owner of a grocery/liquor store damaged extensively when police "cornered" a criminal suspect in the store and shelled it with tear gas cannisters and other ordnance. There is some disagreement in the characterization of the police conduct on the part of the majority and dissenting opinions, but in general it can be said that the police had identified and were following the suspect prior to his entering the store, and that he was committing no crime in the store. Police also had reason to believe that the suspect was armed and dangerous.

The court had sought to direct the case toward the California tort claims act, but the plaintiff deliberately waived any claim under that Act in order to focus on this principle claim that the damage to the store constituted a "taking or damaging" of its property compensable under the California Constitution. (Like many state constitutions, and unlike the federal Constitution, the California Constitution provides compensation for public action resulting in both "taking" and "damaging" of property.) Plaintiff's admitted objective here was to obtain attorney's fees and prejudgment interest, which would not have been available, apparently, under California's tort claims act.

Although the court denied plaintiff's claim here, it suggested that plaintiff might have found relief that included attorney's fees if it had pursued a claim under a federal civil rights statute. It pointed out that actions which do not amount to a "taking" might nevertheless violate the Fourth Amendement or the substantive due process aspects of the Fifth Amendment.

On the merits of the issue, the court acknowledged that recent decisions in Texas and Minnesota had granted relief under similar claims, but it stressed that neither case had decided the issue foursquare on the basis of the takings clause of the respective state constitutions, and it criticized both cases for their nebulous reasoning. The court then proceeded to frame the issue as a question of whether "just compensation" ought to be paid for necessary police actions. Fundamentally, the court holds that such result is not constitutionally compelled and that to provide such relief would interfere with the necessary and desirable conduct of law enforcement officers. As to negligent activity of law enforcement, it indicates, such claims may be considered under the California governmental tort claims procedures, or, as indicated above, by a federal civil rights action. The majority would award compensation for public intereference with property rights only when property is physically occupied by the government or damaged in the course of a construction of a public work on other property. (The court acknowledges that a different approach may apply in the area of regulatory takings, but there is no argument that the case at hand involves a regulatory taking.)

A provocative concurrence embraces a theory advanced in a recent Yale Law Journal article that there is a distinction between government activity constituting a "taking" and government activity constituting a "using." "Usings," the argument runs, are more likely to be compensable, because the government has elected to benefit from a privately owned instrumentality to carry out its policies rather than to acquire its own. This is usually the case, of course, in traditional eminent domain proceedings.

On the other hand, when government damages or destroys property while pursuing activities unrelated to the existing use or function of that property, then the damage should be regarded more as an incidental consequence of necessary government activity, and measured by a different scale. The apt analogy cited by the court: the government might have to pay if it takes grain from a farmer's field to feed its cavalry hourses, but might not have to pay if the same cavalry were to charge across the same field on its way to battle and destroyed the crops in the process.

An even more provocative dissent, representing the votes of three of the nine judges, argues that compensation is due whenever the government deliberately causes direct physical injury to individual private property, even though the government conduct is not unreasonable or negligent, subject only to limited exceptions. The exceptions are : (1) emergency justifying immediate action and (2) nuisance on the property that requires abatement in the public interest. The injury, of course, must be so severe as to amount to a "taking" of the property - minor damage, even though caused by negligence of public officials, would not be compensable as a taking. Compensation is payable even when there is no negligence. Deliberate, reasonable conduct may still be a "taking."

Here, in the view of the dissent, there was no emergency because the police, in seeking and following this suspect, chose a course of conduct that created a risk that the suspect would have to be extricated from a private building. (Presumably, the dissent would find a shoot-out in a public street a preferred alternative.) There was no nuisance, because the landowner was completely innocent of any involvement with the criminal activity and the real estate itself had no relationship to the object of the police activity - the apprehension of the suspect (but didn't the suspect's hiding in the building create the relationship?).

Comment: There is enough in this case to permit commentators to write volumes, and indoubtedly some will. The editor does not find the "taking/using" distinction particularly helpful, as it leads to semantic distinctions that promise little return for the effort.

A critical element of the dissent's position is the narrow definition it gives to the term "emergency." The dissent really fails to explain what other means might have been available to apprehend this allegedly dangrous criminal within a safe time frame and under better conditions. Thus, although the dissent makes some valuable points, they do not seem particularly helpful in the instant case. Indeed, in most cases involving dangerous criminals, it would seem best to let the law enforcement officers on the scene define the "emergency" and act accordingly. If they are unreasonable or negligent in their actions, there are other remedies available to landowners, and a "takings" claim need not be one of them. But none of us would have any value in our property at all without law enforcement, and we must therefore endure some of the difficulties that ensue from it.

Consequently, if backed into a corner himself, the editor would side with the majority here.

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