Michael M. Berger
Senior Counsel
Manatt, Phelps & Phillips LLP
2049 Century Park East
Los Angeles , CA 90067
Phone: (310) 312-4185
Fax: (310) 996-6968
Email: mmberger@manatt.com
USC Law School
Michael M. Berger is senior counsel at Manatt, Phelps & Phillips LLP, where his practice focuses on appeals with a particular interest in constitutional land use. He has argued four takings cases in the U.S. Supreme Court.
The Supreme Court had two chances recently to remedy a sort of governmental wrongdoing that lawyers in the property rights field have come to call SWAT takings. These cases involve the taking of or severe damaging of private property during local law enforcement SWAT operations.
The two cases in which certiorari was recently denied are Pena v. City of Los Angeles and Hadley v. City of South Bend. They came from the 9th and 7th Circuits, respectively. Pena involved commercial property while Hadley was residential. Neither property owner was involved in the criminal activity under investigation. The central legal issue was the same.
Pena operated a small woodworking shop. One day, a fugitive from justice barged into the shop, threw Pena out and barricaded himself inside. In hot pursuit, the local SWAT team arrived. The SWAT members proceeded to lob multiple tear gas canisters into the shop, inflicting serious damage to the facility, making it unusable. Meanwhile, the miscreant had escaped out the back door. Recognizing the hardship being inflicted on Pena, one of the officers told him not to worry because the city would pay for any damage. When presented with the bill, the city declined.
Hadley was similar, except that it involved a residence. This time, SWAT was acting pursuant to a search warrant. The first problem was that they had the wrong house. Nonetheless, they stood outside and (through a bullhorn) demanded that everyone vacate the premises. A 15-year-old boy emerged with his hands raised and said there was no one else in the house. As he exited the house, the boy left the door open. The SWAT team did not take advantage of the open door but bombarded the home with tear gas canisters. The house was a hazmat mess. No compensation here either.
No sympathy from either court. The lower courts took the position that the cities were simply acting in good faith and applying the police power (in its most literal sense) to deal with a clear and present danger for which no compensation is required. I thought they were wrong (still do) and filed amicus curiae briefs supporting both cert petitions.
The courts sought to draw a distinction between the police power and the eminent domain power, with the former apparently grounded in good faith and necessity. The courts then relied on that purported good-faith necessity to create an "exception" to the just compensation guarantee underlying the eminent domain power.
However, that creates a distinction that does not exist in our constitutional law. The central fact, which the opinions failed to recognize, is that the police power and eminent domain power cannot be so simplistically segregated. They are, in fact, merely two sides of the same coin of governmental power. The core of both the police power and the eminent domain power is identical: In either case, the government must act in furtherance of the public good and for a public purpose.
The Supreme Court put it succinctly: "The [eminent domain] 'public use' requirement is thus coterminous with the scope of a sovereign's police powers." Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 240 (1984) (emphasis added). Newer authority echoes that conclusion: "the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose." Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543 (2005) (emphasis added).
Simply put, there is no "good-faith" exception to the Fifth Amendment's just compensation guarantee. The Fifth Amendment's just compensation requirement is categorical: The sovereign's authority to take private property exists only to the extent that the taking is necessary for public use. Indeed, the Court emphasized recently that when the government takes property, it must always pay just compensation. Knick v. Twp. of Scott, 588 U.S. 180, 190 (2019) ("a property owner has a Fifth Amendment entitlement to compensation as soon as the government takes his property without paying for it"; emphasis added).
The Constitution requires no balancing or weighing of interests. "When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner." Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23, 31 (2012).
The decisions proceed as though recognition of a legitimate governmental goal validates whatever solution is chosen. Not relevant. Determination of a legitimate governmental objective is the first, not the last, step. The law distinguishes between means and ends, and the means chosen to achieve the objective must survive constitutional scrutiny the same as the ends.
Legitimate goals are constitutionally irrelevant. For the proper exercise of any governmental power, the underpinning of such a beneficent purpose must exist. That much was settled no later than 1922, when the Supreme Court examined a statute designed to stop land subsidence caused by underground coal mining and concluded that the prerequisites for exercise of both police power and eminent domain were present: "We assume, of course, that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). (emphasis added).
After determining that government action was done to achieve a legitimate goal, the means chosen must be constitutionally examined to ensure that private rights have not been violated. Government may not run roughshod over the constitutionally protected rights of individuals. That is what the Supreme Court meant when it concluded in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 321 (1987) that "many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities and the Just Compensation Clause of the Fifth Amendment is one of them."
In sum, for a taking to occur, it matters not whether government officials acted in good or bad faith, or for good or bad reasons. What matters is the impact of their acts, not the purity vel non of their motives. The Court put it succinctly when it concluded that the Takings Clause "focuses directly upon the severity of the burden that government imposes upon private property rights"--not the importance of the governmental interest advanced by the taking. Lingle, 544 U.S. at 539.
As the late Professor Gideon Kanner, a preeminent star in the takings firmament, put it, "it seems safe to say that the Constitution--or at least the Bill of Rights--was the product of the framers' fear of an overreaching government, and their desire to protect individual citizens from governmental excesses. ... [T]he purpose of the . . . Bill of Rights [] was to protect the people from the government, not vice versa." (Gideon Kanner, Just How Just is Just Compensation? 48 Notre Dame L. Rev. 786, 784 (1973).)
Thus, it is not enough to conclude that it is a good thing to protect the populace from gangsters and thugs. As a matter of constitutional policy, severe invasions of protected property rights cannot occur unless compensation is paid.
Hopefully, the next time the Supreme Court confronts a SWAT takings case (and, rest assured, there will be a next time), it will forcefully confront the constitutional guarantee afforded by the Fifth Amendment and require the government to pay for what it takes, even for actions taken for the best and purest of reasons.