Baker v. City of McKinney

1 Cite as: 604 U. S. ____ (2024)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
VICKI BAKER v. CITY OF MCKINNEY, TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 23–1363. Decided November 25, 2024
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR, with whom JUSTICE
GORSUCH joins, respecting the denial of certiorari.
The Takings Clause of the Fifth Amendment provides
that private property shall not “be taken for public use,
without just compensation.” This case raises an important
question that has divided the courts of appeals: whether the
Takings Clause requires compensation when the govern-
ment damages private property pursuant to its police
power.
On July 25, 2020, in McKinney, Texas, a fugitive named
Wesley Little kidnapped a 15-year-old girl. After evading
the police in a high-speed car chase, Little found his way to
petitioner Vicki Baker’s home with his victim in tow. Little
was familiar with the home because he had previously
worked there as a handyman. Baker had recently retired
and moved to Montana, so her daughter Deanna Cook was
at the house that day, preparing to put it up for sale. When
Cook answered the door, she recognized Little and the child
with him: Earlier that day, Cook saw on Facebook that Lit-
tle was on the run with a teenage girl. Cook feigned igno-
rance and let them into the house, but told Little, falsely,
that she had to go to the supermarket. Once outside, Cook
called Baker, who called the police.
McKinney police arrived soon after and set up a perime-
ter around Baker’s home. Eventually, Little released the
girl and she exited the house. The girl told the police that
Little was hiding in the attic, that he was armed, and that

2 BAKER v. CITY OF M
CKINNEY
Statement of S
OTOMAYOR, J.
he was high on methamphetamine. Later, while still in the
attic, Little told the police that he was not going back to
prison, that he knew he was going to die, and that he
planned to shoot it out with the police. To resolve the stand-
off and protect the surrounding community, the police tried
to draw Little out by launching dozens of tear gas grenades
into the home. When that did not work, the officers deto-
nated explosives to break down the front and garage doors
and used a tank-like vehicle to bulldoze the home’s back-
yard fence. By the time the officers gained entry, Little had
taken his own life. All agree that the McKinney police acted
properly that day and that their actions were necessary to
prevent harm to themselves and the public.
The actions of the police also caused extensive damage to
Baker’s home and personal belongings, however. As the
District Court explained:
“‘The explosions left Baker’s dog permanently blind
and deaf. The toxic gas that permeated the House re-
quired 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 win-
dows, blinds, fence, front door, and garage door. Essen-
tially all of the personal property in the House was de-
stroyed, including an antique doll collection left to
Baker by her mother.’”
84 F. 4th 378, 380–381 (CA5 2023). In total, the damage
amounted to approximately $50,000. Id., at 381. Baker’s
insurance refused to cover any damage caused by the
McKinney police.* Baker, who bore no responsibility for
——————
*Homeowners’ insurance policies generally do not provide coverage for
damage caused by the government. See 10A., J. Plitt, D. Maldonado, &
J. Rogers, Couch on Insurance §152:22 (3d ed. Supp. 2024) (explaining
that “losses [that] occur because of the actions of a civil authority func-
tioning in its ordinary governing capacity” are “typically excluded from

3 Cite as: 604 U. S. ____ (2024)
Statement of S
OTOMAYOR, J.
what had occurred at her home, then filed a claim for prop-
erty damage with the city. The city denied the claim in its
entirety. Baker thereafter sued the city, alleging a violation
of the Takings Clause. At the summary judgment stage,
the District Court held that the City’s destruction of Baker’s
property was a compensable taking under the Fifth Amend-
ment. Baker v. McKinney, 601 F. Supp. 3d 124, 144 (E. D.
Tex. 2022). Following trial, a jury awarded Baker nearly
$60,000 in damages.
On appeal, the Fifth Circuit reversed. The court declined
to adopt the city’s broad assertion that the Takings Clause
never requires compensation when a government agent de-
stroys property pursuant to its police power. Such a broad
categorical rule, the Fifth Circuit reasoned, was at odds
with its own precedent and this Court’s Takings Clause ju-
risprudence. Baker, 84 F. 4th, at 383–384. Instead, the
Fifth Circuit adopted a narrower rule that it understood to
be compelled by history and precedent: The Takings Clause
does not require compensation for damaged property when
it was “objectively necessary” for officers to damage the
property in an active emergency to prevent imminent harm
to persons. Id., at 385–388. Because the parties agreed
that the McKinney police’s actions were objectively neces-
sary, the Fifth Circuit concluded that Baker was not enti-
tled to compensation. Id., at 388. Baker now petitions for
certiorari and asks this Court to reverse the Fifth Circuit’s
judgment.
The Court’s denial of certiorari expresses no view on the
merits of the decision below. I write separately to empha-
size that petitioner raises a serious question: whether the
Takings Clause permits the government to destroy private
property without paying just compensation, as long as the
government had no choice but to do so. Had McKinney
——————
most property insurance policies”).

4 BAKER v. CITY OF MCKINNEY
Statement of S
OTOMAYOR, J.
razed Baker’s home to build a public park, Baker undoubt-
edly would be entitled to compensation. Here, the McKin-
ney police destroyed Baker’s home for a different public
benefit: to protect local residents and themselves from an
armed and dangerous individual. Under the Fifth Circuit’s
decision, Baker alone must bear the cost of that public ben-
efit.
The text of the Takings Clause states that private prop-
erty may not “be taken for public use, without just compen-
sation.” The Takings Clause was “designed to bar Govern-
ment from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole.” Armstrong v. United States, 364 U. S.
40, 49 (1960). This Court has yet to squarely address
whether the government can, pursuant to its police power,
require some individuals to bear such a public burden.
This Court’s precedents suggest that there may be, at a
minimum, a necessity exception to the Takings Clause
when the destruction of property is inevitable. Consider
Bowditch v. Boston, 101 U. S. 16 (1879), in which the Court
held that a building owner was not entitled to compensation
after firefighters destroyed his building to stop a fire from
spreading. Id., at 18 (“At the common law every one had
the right to destroy real and personal property, in cases of
actual necessity, to prevent the spreading of a fire, and
there was no responsibility on the part of such destroyer,
and no remedy for the owner”). Bowditch interpreted Mas-
sachusetts state law, but subsequent cases have relied on
Bowditch in the Takings Clause context. Similarly, in
United States v. Caltex (Philippines), Inc., 344 U. S. 149
(1952), this Court held that the Takings Clause did not re-
quire the Government to pay compensation for its destruc-
tion of oil companies’ terminal facilities amid a military in-
vasion. The destruction of that property during wartime
was necessary, the Court explained, “to prevent the enemy
from realizing any strategic value from an area which he

5 Cite as: 604 U. S. ____ (2024)
Statement of S
OTOMAYOR, J.
was soon to capture.” Id., at 155. That holding accorded
with the common-law principle “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.” Id., at 154. These cases do not resolve
Baker’s claim, however, because the destruction of her
property was necessary, but not inevitable. Whether the
inevitable-destruction cases should extend to this distinct
context remains an open question.
Only a few Courts of Appeals have weighed in on the ex-
tent to which the Takings Clause applies to exercises of the
police power. Unlike the Fifth Circuit, the Seventh Circuit
and Federal Circuit have held that “the Takings Clause
does not apply when property is retained or damaged as the
result of the government’s exercise of its authority pursuant
to some power other than the power of eminent domain.”
Johnson v. Manitowoc County, 635 F. 3d 331, 336 (CA7
2011); AmeriSource Corp. v. United States, 525 F. 3d 1149,
1154 (CA Fed 2008). The Sixth Circuit rejected a takings
claim similar to the one here, without addressing any pur-
ported exceptions to the Takings Clause, because the plain-
tiffs “failed to identify any history or precedent establishing
that the police have ‘taken’ their ‘property’ within the
meaning of the Fifth Amendment when the police damaged
the property while conducting a lawful arrest.” Slaybaugh
v. Rutherford County, 114 F. 4th 593, 603 (2024); see also
Lech v. Jackson, 791 Fed. Appx. 711, 717 (CA10 2019)
(“[W]hen the state acts pursuant to its police power, rather
than the power of eminent domain, its actions do not con-
stitute a taking for purposes of the Takings Clause”). The
Fourth Circuit, meanwhile, has held “[t]hat Government
actions taken pursuant to the police power are not per se
exempt from the Takings Clause.” Yawn v. Dorchester
County, 1 F. 4th 191, 195 (2021). All those decisions, save

6 BAKER v. CITY OF MCKINNEY
Statement of S
OTOMAYOR, J.
the Sixth Circuit’s, however, predate the Fifth Circuit’s de-
termination that there is an “objectively necessary” excep-
tion to the Takings Clause. Whether any such exception
exists (and how the Takings Clause applies when the gov-
ernment destroys property pursuant to its police power) is
an important and complex question that would benefit from
further percolation in the lower courts prior to this Court’s
intervention.