Is There a "Police Power" Exception to the Fifth Amendment's Just Compensation Clause?

Listen & Download

Police in Greenwood Village, CO, chased a shoplifting suspect into a home belonging to Leo Lech and his family. When the suspect took a shot at the police, they responded by using an armored vehicle to tear gaping holes in the side of the house and launching "gas munitions" into the interior, effectively destroying the home. The Lech family sought compensation, but the Tenth Circuit rejected their claim on the grounds that the Fifth Amendment's just compensation requirement contains a categorical exception for law enforcement. Was that decision correct, and either way, should the Supreme Court grant cert and reconsider whether owners are entitled to compensation when their property is damaged or destroyed in police operations?

Featuring: 

Clark Neily, Vice President for Criminal Justice, Cato Institute

Moderator: Jeffrey Redfern, Attorney, Institute for Justice

 

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

 

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled, “Is There a ‘Police Power’ Exception to the Fifth Amendment’s Just Compensation Clause?” My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Clark Neily, who is Vice President for Criminal Justice at the Cato Institute. We also have Jeff Redfern, who is an Attorney at the Institute for Justice and Counsel of Record in this case we will be discussing today. After our speakers give their opening remarks, we will then have a portion for audience Q&A. Thank you both for sharing with us today. Clark, the floor is yours.

 

Clark Neily:  Thanks so much. Thanks for having us on, and thanks to Jeff for being able to join at the last minute. So I’m going just provide a very broad brushstroke description of the case and how I think it fits in contextually, and then Jeff will talk about the fascinating details of it and the error that the Tenth Circuit committed, really, against the homeowners.

 

      This is a case involving a police pursuit of a suspect who holed up in a family’s home, seemingly chosen at random, in Greenwood Village, Colorado. He fired some shots at the police officers from within the home. And in the course of attempting to apprehend the suspect, they basically took the house apart with a BearCat — it’s one of these armored vehicles — also shot a number of munitions into the home, causing considerable fire damage.

 

      The question in this case is whether that action constitutes a taking for which just compensation is required under the Fifth Amendment. The Tenth Circuit said categorically no. The Institute for Justice and Jeff have taken the position in their cert petition, correctly, I believe, that that decision was wrong and that just compensation should be required.

 

      The context here is quite fascinating, I think, because this involves the intersection of law enforcement on the one hand and property rights on the other. But from a larger standpoint, I also think it’s about accountability. I think it’s about the ongoing dialogue we’re having in this country about what we expect from police, the amount of care we expect them to exercise when interacting with citizens, and specifically when it comes to harming individual citizens and/or their property. An increasingly large number of people, including, I think, many libertarians, take the position the police are insufficiently concerned about those harms and do not sufficiently account for people’s interests when deciding whether to use force against individuals or property.

 

      In cases like this which afford the courts with an opportunity to focus the law enforcement community’s attention on the harm that they can do, sometimes deliberately, but sometimes just as a byproduct of routine police operations, I think they are all for the good, and the Supreme Court will answer in this case and ensure not only that the property owner in this case is compensated but that also the police are required to internalize the costs of their own operational decisions. I think that’s what’s at stake in this case, and it’s an important one. But Jeff can tell us more about the fascinating details of the case itself and the procedural history.

 

Jeffrey Redfern:  Sure. Thanks, Clark. So in this case, it’s not just extensive damage. The house was totaled, and the Lech family was told they were not allowed to return to the house. They had to tear it down and rebuild from scratch. The standoff here went on for about 19 hours. There’s no dispute here that this criminal who was holed up inside had no relation to the Lechs. He was just fleeing. He was actually a shoplifter and looked for a convenient house where he could hide. When he was initially being pursued by the police, they had no particular reason to think he was dangerous. It was only after he holed up in the house that he fired some shots.

 

      Now, one thing that I think is really important to keep in mind about this case is that this is not a case about tort liability for individual officers. Obviously, there’s something of a fiction here that individual officers are ever held liable. Even when you can get over the barriers of qualified immunity, they’re almost always indemnified. So the idea that the particular officers are going to be financially ruined doesn’t hold out in reality.

 

      But here, it’s not even a fiction. All the good case law makes clear that when you’re talking about police damage, there’s never a question of individual officers being held liable because the allegation, the real nub of our claim here is that it’s not about whether the police did something wrong. It’s about who should pay for actions that might well be justified? There’s no question that apprehending dangerous criminals is a public good. The question is whether that’s a cost that should be borne by one hapless homeowner or by the public at large that benefits from having this person off the streets.

 

      Now, the Tenth Circuit here sidestepped a lot of potentially interesting questions about police damage or about government damage causing a taking in general. There are a lot of interesting doctrinal hooks that could get you to one direction or another when it comes to compensation. For example, there are cases going back to the 19th century that talk about the certainty that the damage is going to occur. So if the government does something and the damage that happens is unforeseeable and entirely accidental, well, maybe that’s not something that’s going to cause a taking. And courts have come to different answers in all of these questions, but what they haven’t done until recently, and what the Tenth Circuit did in this case, was say if they’re acting pursuant to the police power rather than the power of eminent domain, then the Fifth Amendment simply doesn’t apply.

 

      And the problem is that the police power is essentially everything that the government does except file a formal condemnation action. So that would encompass regulatory takings. It would encompass intermittent flooding or permanent flooding, things that we’ve known for a long time can constitute takings. So it’s clearly not a doctrinally correct result, but a number of courts now have adopted this rule. It’s certainly not the Supreme Court’s rule. And it’s just sitting around there waiting for a further pernicious application in cases like this and in cases that we can’t even predict yet.

 

      And so our cert petition is not asking the Supreme Court to take a firm position about when damage constitutes a taking. We modeled it on a recent case that some of you may remember, the Arkansas Game and Fish Commission case from a few years back where essentially what happened was the Army Corps of Engineers was periodically opening this dam in a way that was causing intermittent but predictable and very damaging flooding downriver. And if they had operated the dam the way they had historically done it, it wouldn’t have caused this damage. There was no dispute about that. The federal circuit said that there were no damages claims for all the damage done to this land because the flooding was intermittent. Only permanent flooding, the court says, can constitute a taking.

 

      The Supreme Court reversed unanimously. It was a decision that said essentially there is no categorical exception. It didn’t express any opinion as to whether this kind of flooding would rise to the level of a taking. It just said, “You can’t invent these categorical exceptions. You have to look at all the facts and circumstances.” And I think most people agreed that the writing was on the wall for the petitioners there having won on that question.

 

      But that narrow question is all we’re asking the Court to take on in this case, to say, look, there is no categorical exception for the police power. You have to look at circumstances. It could be things like -- unclean hands is another example that comes up a lot. If you’re barricading yourself inside your own home, obviously you don’t have a claim if the police damage the home to get you out. So there are lots of things that courts will have to consider looking at these cases going forward. But we’re arguing, and we think the Court will agree, that you can’t simply have this categorial exception, say, is it the police power, and we’re done.

 

Clark Neily:  An interesting question that often comes up is won’t the homeowners insurance just pay for it, and all this will come out in the wash because then the costs of the insurance will be borne among homeowners. And it’s kind of functionally akin to just compensation, but two responses to that. First, it turns out that most homeowners policies actually have an exclusion for damage caused by government action. And so even though in this particular case, as I understand it to refer to, albeit a stretch, there was some fire damage in this case, and so the policy was held to cover that. But in most cases, there will not be coverage for the homeowner.

 

      But it points to an important point which is that this is — and when I say this, I mean damage caused by police operations — that’s an insurable risk. And the party that ought to be insuring for that risk is the police. And they’re in a much better position, obviously, because they know that they will from time to time engage in potentially property-destroying operations. And that’s a risk that’s known to them. That’s a risk that they should be able to go out and get coverage for. But where the homeowner doesn’t expect to be -- most people are not in the business, for example, of harboring fugitives. They don’t expect it to happen. They don’t expect on any given day to have police kicking in their door looking for a fugitive and so forth.

 

      So if we’re going to talk about insurance, we’re going to talk about the way that plays out in this setting. I think it’s clear from an economic standpoint that it makes much more sense to have the party in this case that is actually potentially in the business of -- well, definitely in the business of apprehending suspects, and potentially in a way that causes damages to private property, everything from a law of economics efficiency standpoint points in the direction of police internalizing those costs and being the party that bears the cost of insuring against that risk because they know that they’re engaged in activities that present that risk. So I think there’s any number of reasons why it makes a lot more sense to have law enforcement internalize these costs as opposed to trying to offload them onto the shoulders of the blameless, and in this case, just random property owner.

 

Jeffrey Redfern:  Yeah, I think that’s right. And in this case, you’re right. Our client was fairly lucky to get an insurance settlement. It wasn’t a settlement that covered the loss of use in the interim or that fully covered the cost of rebuilding it. But he was much better off than some people are. And my understanding is it was because there was some fire damage.

 

      Essentially, he called his insurance company, and they were not at all sure that this was going to be covered. And they were fairly pessimistic and said, “Don’t get your hopes up.” And they sent an inspector out there, and he found the residue of these incendiary grenades that had been fired through the windows. He said, “Okay, well, because it’s fire, I guess that’s covered.” It might also have been just because this was a particularly high profile case in the Denver area, and the insurance company might have just thought it would be bad press not to cover it in this case.

 

      But when our client rebuilt the house and was getting a new homeowners policy, he spoke to his agent and said specifically, “What do I have to do to get coverage for -- well, let’s say police tear down my front door?” And the agent said, “Well, that stuff’s never covered. I don't even know how we even get you a rider for that.” So it’s certainly not standard practice in the industry for homeowners even to be able to protect themselves against this kind of loss.

 

Clark Neily:  I think another interesting point in the case, Jeff, that maybe you could elaborate on a bit, and it certainly struck me in reading the various papers. It seems incredibly clear to me that the Supreme Court has both tacitly and explicitly rejected the idea of a categorical exception to the Takings Clause when the government acts according to the police power.

 

      So there’s an example that you get in the cert petition. Some people are probably familiar with this case, the Horne v. Department of Agriculture case from five years ago where the question was whether when raisin growers are forced to divest a portion of their crop, very clearly under the police power, if they’re trying to maintain certain market prices, that was held to be compensable. And there’s the Loretto case involving a physical invasion of an apartment building in order to put cable boxes on it. And that was also done according to the police power.

 

      So what it quite curious to me is why those cases seem like they didn’t make a bigger impression with the Tenth Circuit because they seem directly in opposition, directly in contradiction to the Tenth Circuit’s conclusion that, in fact, there is a categorical and uniform exception to takings law, by which I mean that when property is damaged or taken pursuant to government exercise of police power, it’s just not even a taking within the Fifth Amendment, and so we never even get to the question of just compensation.

 

      As I said, it seems to me, and I think IJ makes an extremely powerful case for that interpretation, that that’s just flat wrong. Would you agree with that?

 

Jeffrey Redfern:  I do agree with that. I was a little surprised that they didn’t take it up en banc, actually. I think there are a couple explanations for it. One, I think these are probably judges who are starting from the position that, well, at least this kind of action doesn’t seem to them like it should constitute a taking. And I think there’s a little bit of backing into it because there is some language in some cases from other courts saying that there’s a police power exception. Again, that’s wrong. But once you get a little bit of that precedent out there, it gives courts a foothold. And that’s why we think it’s so urgent that the Court take this case so that that doesn’t turn into a real doctrine in the lower courts.

 

      I also think that a real problem with this case has been courts — or really, these issues in general — is that courts are conflating the purpose of the Takings Clause and tort liability. And they have this sense that, well, if the police were acting reasonably, then it wouldn’t be fair to hold them liable as though Takings Clause compensation is about punishing wrongdoers, about the government having made a mistake and having to pay damages. And it’s not about that at all. The police can be doing absolutely the right thing, and that doesn’t answer the question whether the state or the government entity should have to pay compensation. And I think that keeping those two concepts of tort liability for wrongdoing and compensation for actions that benefit the public separate is really key to understanding why there shouldn’t be this kind of an exception.

 

      So as you pointed out earlier, it is certainly the case that this fits into a larger pattern of government agencies not having to be responsible for their actions. It’s just that there are some actions where it’s wrongdoing and damages are the only kind of compensation you can get because the wrongdoing is completed. There are also other actions where you would never be able to enjoin it because it’s absolutely within the government’s power to do, and it might even be a very good idea for the government to do it. But it’s just not something that the individual should have to pay for.

 

Clark Neily:  Let me step into the unusual role of devil’s advocate here a little bit. I’m not pushing back, but I want to explore the limits of this just compensation requirement. Presumably, a police officer is engaged in a foot pursuit that takes him across, let’s say, a number of back yards. Technically, that is a physical invasion of property. And you could even imagine that a police officer has to jump up on the roof of your car to get over a fence and maybe leaves a dent in the car.

 

      What are the limits of this theory in terms of the translation between -- and the domain law where, really, any physical invasion represents a potentially compensable taking? It seems inconceivable that you would have a -- that you would either have or want a doctrinal rule that mirrors the standard eminent domain rule that any physical invasion constitutes a taking. Would you agree with that, or can you really conceive of a rule that says if a police officer runs across your back yard, he might have to compensate you?

 

Jeffrey Redfern:  No, no. You’re right. And I think it’s important to keep in mind that the categorical rule of Loretto, that if you place just one wire on the outside of someone’s apartment building, that’s a physical invasion, you have to pay compensation, that’s a rule that applies to permanent physical invasions. Temporary physical invasions are subject to a more complex, all the relevant circumstances kind of analysis. So that’s where you get the rule that a permanent flooding -- if the government turns your land into a reservoir, you get full compensation right away. If the government is periodically opening the locks on the dam or something and that causes intermittent flooding, you might get compensation, you might not.

 

      There are a lot of issues that the court might consider. And in the case of a police officer who technically commits a trespass because he’s running across your back yard, no damage whatsoever occurring from that, I think there’s no question that that wouldn’t be a compensable taking. I think you get into harder questions where you’re talking about incidental damage, the kinds of things that don’t at all interfere with use and enjoyment and damage that is not necessarily intentionally caused. So the police officer who dents the car when he’s running probably didn’t intend to do that. And under the prevailing approach, that wouldn’t be compensable either.

 

      But I do think that if you’re talking about battering down a door, I think that probably would be compensable. It’s not going to be an incredibly expensive issue for them to fix. It’s not like rebuilding an entire house. But battering down doors is something that they know for certainty is going to cause damage. Frequently, the owners of these houses that are being searched have no relation to the people that they’re searching for.

 

      And as you said earlier, who’s the least cost avoider, who knows how many doors they’re likely to bash down, and who can decide when it’s really worth paying the $1,000 or how much ever it costs to repair it? Well, that’s the police. And I don’t really think there’s a principled reason that they shouldn’t have to pay, or the city or whatever government entity is in charge should have to pay for that kind of damage.

 

Clark Neily:  Let’s take another challenging sort of -- I don't know if it’s a line drawing question or not, but it’s another category of case with a slight variation. Imagine that this had been a home invasion. I mean, it was in a sense a home invasion, but it was a fleeing suspect. But imagine that the Lechs were sitting in their home and someone broke into their home in a nighttime burglary, and then they call the police to report a home invader. And in the course of responding to that call and apprehending the home invader, which, let’s say hypothetically they do successfully, they cause some damage to the home. Maybe they kick the door off the hinges or there’s some damage to the interior caused during the apprehension. Is that the same case or different case?

 

Jeffrey Redfern:  Definitely different case. The Supreme Court actually addressed an issue like that in the YMCA case, middle of the 20th century. I forget the exact date. But essentially, the Court held that when the military occupied this YMCA building in the Panama Canal zone during a riot, and the building got damaged, the Court ruled that there was no compensable taking because the military had occupied that building for the purpose of protecting it. So because the property owner was the particular intended beneficiary of the government action, there wasn’t a taking. It wasn’t really for the public good in general. It was mostly to protect this one person’s property.

 

      And I think the same rule would likely apply. If you are being held inside your own house by a criminal or something, I think you’d probably be thrilled to have the police break down the door and rescue you, regardless of the damage that it causes. And that’s also a pretty well established rule.

 

Clark Neily:  It seems like I guess we are now confronted with very obviously a line drawing problem. And it’s sort of an interesting metaphysical problem. So the Lechs in this case fled the house as I understand, but if they had remained or if they had been taken hostage, then perhaps we get a different result. I don't know. Or you could imagine an argument being made, well, they certainly have an interest in having this particular criminal removed from their house at some point, so even though it may not have started our for their benefit, it inured to their benefit that this person was eventually removed.

 

      So how do you think courts should deal with those kinds of line drawing problems? Let’s take the harder case. What if they had been taken hostage and this damage had been done in the course of a legitimate hostage rescue operation?

 

Jeffrey Redfern:  Well, in that case, the if property owner or property owner’s family are being rescued, I think that under the YMCA case, that’s probably not a compensable taking. But I do think -- I agree there are absolutely going to be hard line drawing questions going forward. And I think that is behind a lot of the impulse these courts have to come up with these categorical exceptions.

 

      But what the Supreme Court has said again and again is that there are few invariable, firm lines in the realm of eminent domain or in the realm of takings. And I think basically, this just means that courts are going to have to look at all of these facts and circumstances. And there might be a lot more nuanced rules like this particular intended beneficiary rule that emerge over time. But at least if we can get rid of this police power exception, then we can allow those doctrines to develop in a thoughtful and organic way, which they are not really -- it’s not really happening now because of these recent decisions that have created the exception.

 

Micah Wallen:  Wonderful. All right, we’ll go ahead and open up the floor for audience questions. We’ll now go to our first question.

 

Bill Severson:  Hi. This is Bill Severson in Seattle. The question I have is isn’t one of the concerns here that you don’t want the police in these situations worrying about, “Oh god, do we have enough money in the budget to cover the loss of whatever damage we have to do to preform this action?” And so the reason to give them essentially immunity for that is to not have that consideration in the back of their minds. And how do you -- if that’s a legitimate concern, how do you address that doctrinally?

 

Jeffrey Redfern:  I think that’s probably a good question for Clark.

 

Clark Neily:  Well, I’m skeptical whether that plays a significant role in police decision making. As you probably know, there’s been significant studies of where money comes from in civil rights payouts. 99.98 percent of the time, police are indemnified, which means that ultimately, tax payers pay for damages caused by police in the civil rights context. I disagree with that policy, by the way, but it is, empirically speaking, the case that that’s how civil rights damages are handled.

 

      I don’t see why this would be any different. I think the idea that an individual police officer would stop and think, “Before we decide whether or not to apprehend the suspect, we better calculate the amount of damage that’s likely to happen to this house.” I’m not saying that it’s inconceivable that it could happen, but it seems quite unlikely that the police decision making process would be radically different in this context than it seems to be in the context where police, for example, are considering whether to use force against an individual. It does not appear -- I’m not aware of any strong empirical evidence that indicates that police spend a lot of time thinking about liability exposure when deciding, for example, how much force to use in any given situation.

 

      And of course, the other point we addressed earlier is that police departments would be in a position to insure for this risk, and so that would be the rational policy response, I think. And  don’t see any reason why they would be unable to insure for the risk. And that would be sort of a further insulating factor.

 

      And frankly, I think we probably want them to exert a little bit of discipline. You don’t want the police engaging in wildly disproportionate enforcement activities, disproportionate meaning they’re causing hundreds of thousands of dollars’ worth of damage to, let’s say, apprehend a completely nonviolent person who has fled when they attempted to arrest them for low-level drug possession or something. I don’t think that’s a social benefit, and I think in that context, it would be great if police would consider the tradeoff. So I recognize the concern, but I think we need to be mindful about how things work in the real world. And I think it’s probably overblown.

 

Jeffrey Redfern:  Clark is much more the expert than I am when it comes to deterrents and police liability, but his instinct is the same as mine. It seems to me that it’s only going to be in the more marginal situations where you’re looking at a huge amount of likely damage and a pretty small benefit that you might get people second guessing whether it’s really worth doing this.

 

      And of course, there’s no question of the officers themselves being held liable. It’s going to be the government entity that employs them. And I think that the only worry there is, okay, maybe I’m going to get disciplined or something if I made the wrong choice. But they have policies in place about how to make these decisions even now. So I think that the question is going to be does this effect their policies at all? Well, yeah, it might a little bit. But people will likely just continue to follow whatever the written policy is. And if it causes them to be slightly more careful about tearing down an entire house to get a nonviolent criminal, then that’s probably a good thing.

 

Micah Wallen:  One question in the meantime I wanted to throw to both of you is how do you respond to an issue some have raised in response to this topic of why should we worry about just compensation in these cases when insurance coverage is going to cover some or most of the time?

 

Clark Neily:  Yeah, that’s sort of reflects an impulse that people have, and that explains a misunderstanding of how homeowners insurance actually works. We touched on it just briefly a little bit earlier, but the short version is that most homeowners policies contain an exclusion for damage caused by government action. And so even though the damage in this case was largely covered, that was really more of a quirk that was limited to the facts of this particular case. And in general, most homeowners are not going to be compensated by their homeowners policy for this kind of loss.

 

Micah Wallen:  All right, we do have two question coming in now, so we’ll move to our next caller.

 

Caller 2:  I was wondering if you would talk a little bit about legislative police power because you have cases in the old days maybe involving alcohol or gambling, more recently bump stocks, where the legislature took an article that was once lawful, made it unlawful without any sort of grandfathering provision and either seized or required the owners to destroy their property. And you’re getting Fifth Amendment claims on these. And you see, for example, in the bump stock case, the federal government’s justifying the regulation by saying that it has the police power under the Commerce Clause. And so I was wondering what you think of these types of cases of how the police power intersects with the Just Compensation Clause.

 

Jeffrey Redfern:  I think that actually a lot of the confusion that we have now stems from some of these 19th century cases where courts were for a time drawing a pretty firm line between the police power and eminent domain. But the conception of the police power at the time was much narrower. Now it’s come to mean essentially everything that state governments do that promote health, safety, general welfare, etc.

 

      At the time, it was considered to be essentially prohibiting nuisances, and one of the big early questions is whether under the police power the government could prohibit nuisance uses of property that were not common law nuisances like banning the distilling of alcohol. That was obviously a big issue in the late 19th century. And the courts generally said that you aren’t limited to just common law nuisances. But there’s a lot of language in these old cases that suggests that whatever the government is doing or whatever it’s prohibiting, it still has to be in some way harmful, and that the police power maybe encompasses prohibiting of harmful things that were not illegal at common law but is not sort of a general catch-all rule that the government gets to regulate your property as though it’s the owner without actually paying to own the property.

 

      So I do think that there’s some room there in cases to explore what those limits are. I do think that probably it’s all going to be at present analyzed under a Penn Central regulatory takings balancing framework, which unfortunately doesn’t usually turn out very well for the property owners, though it’s not clear to me that at least just looking at what that test is supposed to be balancing, it seems like it should be a little more robust than it is in practice. I’m not super sanguine about regulatory takings cases at present.

 

Clark Neily:  There’s another interesting twist here, of course. The caller mentioned the recent bump stock, and of course that’s a federal policy. And this is fascinating because the whole theory here is that there is a police power exception to the Takings Clause, or that when the government acts pursuant to its police power, then it’s not a taking. The damage to the property is not a taking. But of course, the federal government has no police power to exercise.

 

      And so the question then becomes, well, how can the federal government -- and by the way, there have been a number of cases in which the federal government has, in fact, invoked this supposed police power exception to the Takings Clause in the Fifth Amendment, including one called AmeriSource where there was some destruction of pharmaceuticals by some U.S. Marshals. And the courts in some cases -- the federal circuit, for example, has held, I think rather inconsistently, that the federal government is permitted, is authorized to invoke the supposed police power protection to the Takings Clause and the Just Compensation Clause, the one that we’ve been discussing during this call.

 

      And that leaves one wondering, well, how exactly can the federal government do that when they don’t have a police power? And the answer, presumably, is that the police power sort of resides within the larger end of what I sometimes call the federal -- the sham commerce power. This is the commerce power that has been invented by the Supreme Court to rationalize kind of whatever the federal government wants to do. So perhaps there is a police power that resides in the sham commerce power that the Supreme Court has posited.

 

      I’ll give a quick plug to Josh Blackman, a familiar name to presumably many listeners. He’s just put up a post on The Volokh Conspiracy on this precise issue involving whether there’s a police power to ban bump stocks. And I commend it to everyone’s attention. It’s on The Volokh Conspiracy. It just went up today, and it’s going to be part of a longer series. But it really is a fascinating question when the federal government takes or destroys property and then turns around an invokes a police power exemption to the Takings Clause highlights the fact that the federal government was specifically denied a police power by the Founders, but of course has been functionally granted that power by the Supreme Court, erroneously, in my view.

 

Jeffrey Redfern:  Yeah, I think that’s right. And it’s really quite surprising that the federal circuit hasn’t engaged with the issue more because it is the leading federal source of takings precedent. Obviously, it’s not an issue that’s going to get raised in our case because we’re dealing with state government. But I think it is ripe for further consideration when we’re talking about the federal government.

 

Micah Wallen:  All right, we’ll move to our next caller.

 

Russell Kirshy:  Good afternoon. This is Russell Kirshy from Punta Gorda, Florida. I was curious. Over the years, there’s been a lot of liability in the area of police pursuits, and that’s sort of a foregone conclusion. You get in a pursuit, and the person you’re chasing ends up killing somebody, or a police officer ends up killing or hurting somebody, there’s automatic -- well, not automatic, but there certainly is liability. Can you just compare and contrast why this issue is not as clear in this particular case as in those types of cases? Thank you.

 

Clark Neily:  Let me just quickly say -- Jeff, I actually just want to check the premise. I’m not sure that it is a foregone conclusion that there is liability any time there is an injury caused by a police pursuit. And in fact, I think that you’d only be able to recover against a police officer under those circumstances if you can show that something that police officer did in either provoking or continuing that pursuit violated a clearly established right of yours. Otherwise, I think it’s going to be a real uphill battle. But Jeff, if you have a different perspective or additional perspective, I’d be interested to hear it.

 

Jeff Redfern:  No, that’s my understanding as well. And my understanding is that there are varied regimes in the states in terms of what degree of negligence can get you recovery. But I’m not aware of any jurisdiction where there would be strict liability under those circumstances, which is essentially what we’re talking about in the takings context. It would definitely be based on tort principles.

 

      In our case anyway, I do think it’s actually more straightforward than the pursuit cases because we’re dealing with -- there’s no question of negligence here. It’s clearly an intentional decision made by people with government authority to destroy property, whereas in the pursuit cases, if you’re trying to get over negligence, whatever the Tort Claims Act that you might be using says it might actually be gross negligence or something like that which could be very difficult to show. Or of course if it’s a constitutional claim, then you have to get through qualified immunity.

 

      And I certainly don’t doubt that settlements get paid out at some level in cases like that because there is probably not any sort of clean categorical exception that you can rely on. But once we get rid of this one at the Supreme Court, there won’t be in the takings context either.

 

Micah Wallen:  All right, we’ll now move to our next caller.

 

Bill Severson:  This is Bill Severson again. If nobody else has questions, I’ve got a couple more. One is  -- and this is with judges, and the argument is do you run into analytic problems with them with sort of this problem of there being maybe two conceptions of the police power, kind of the big police power and the little police power where the police power is used as a word to describe everything the government can do, in a sense. And so if you’re thinking about police power in those terms, you run into serious problems here because, gee, everything they do is within the police power. So there’s got to be some defined police power that’s smaller in nature to allow a Fifth Amendment taking claim to be made. And do judges get confused trying to make that distinction? That’s my first question.

 

      Second question is it seems to me that this issue here also relates pretty closely to the discretionary function exception sort of problems under the Federal Tort Claims Act. And there, the courts have been pretty broad in terms of protecting discretionary functions. And does that case law pretty much carry over here in ways that are either helpful or more likely harmful? Those are my questions. Thanks.

 

Jeffrey Redfern:  I do think that judges are getting confused about what exactly the police power means. Either that or they’re not really thinking through the implications of the police power exception because in a lot of these cases, the courts will say the police power is the power of government to advance health, welfare, etc., which is obviously an incredibly broad description. And it just strikes me that in those cases, they can’t really be thinking about the implications of that because that would mean we don’t have regulatory takings cases, that we don’t have intermittent or permanent flooding cases, etc. I also think that there are a lot of cases where the court just haven’t thought at all about what the scope is, and they think, well, if this is something that the police are doing, that’s the police power.

 

      Then there are courts who have expressed anxiety about how broad this might be and have tried to come up with some sort of creative ad hoc ways of limiting it. There have been some courts who said, well, the police power is fine, but you have to satisfy so-called emergency exception also, which is something that the courts have largely made up out of thin air that is supposed to raise the bar. So it’s not just a general public use kind of destruction, it has to be destruction of property that’s really, really important and urgent. But it’s not really clear how that is supposed to be an administrable standard, either.

 

      So there is some awareness, I think, on the part of the courts that this can’t entirely be tenable. But I think in general, once one federal court says that this is a doctrine, it becomes a pretty easy hook to hang your hat on when you’ve got a case that you don’t like or where your gut is telling you that the plaintiff shouldn’t win this one.

 

Clark Neily:  I would add one point which is to sort of try to tie this question together. The caller mentioned the discretionary function decision exemption of the Federal Tort Claims Act. And I would throw in qualified immunity as well. And what I see all of these different environments having in common is -- the point here is not that there’s somehow automatic liability on the part of the government if, for example, qualified immunity doesn’t apply, or the Federal Tort Claims Act case and discretionary immunity doesn’t apply, or the discretionary function exception doesn’t apply. What it really comes down to is should the government official be required to justify his or her conduct to a jury?

 

      And I think that one of the most interesting and troubling dynamics in judicial doctrine when it comes to government liability is what I see as an extraordinary suspicion and distrust of juries in astonishing contrast to the attitude of the Founders who felt that both in the civil and criminal context that juries were an absolute cornerstone of a well-functioning justice system, again, both civil and criminal.

 

      And of course, jury trials are now practically extinct on North American soil. 97.4 percent of all federal criminal convictions come from plea bargains instead of jury trials. Very few cases proceed to trial in the federal system anymore. And it seems to me that it would be absolutely salutary in many instances to allow the Founders’ insight to operate here, which is that whether it’s a civil or a criminal proceeding, we should involve the public in deciding -- in passing upon the reasonableness or even the criminality of the conduct in question.

 

      And I’m just puzzled by this extraordinary judicial -- it goes beyond skepticism. I’d have to call it hostility to this institution, this sort of originalist institution for making decisions, including decisions about government liability. And it seems to me that there’s a lot for federalists and libertarians and conservatives to be skeptical about in a government that is so unwilling to go in front of a jury of ordinary people and try to explain the reasonableness of its conduct. And I know that’s a larger issue, but I think that anytime we’re talking about sort of categorical exceptions to liability, sort of a “get out of responsibility free” card for the government, which qualified immunity has just about become, and of course which is at stake at elections, we ought to be very concerned.

 

Jeffrey Redfern:  I think that this skepticism is often unwarranted. And it certainly seems as though government officials and police do just fine when they go before juries, and it’s not as though a jury of their peers is going to be unusually hostile or unreasonable.

 

Micah Wallen:  I was just going to say we’ve reached the end of our queue again. So I just wanted to give both of you a chance. Did you have anything else you’d like to discuss or any final remarks for us?

 

Clark Neily:  Well, I would say -- I just want to reiterate the point that I just made, which is that this case is ultimately about requiring the government to be responsible and accountable for its actions, including actions that impose significant costs on innocent citizens. The unwillingness of the government to be accountable, to be responsible for its harmful conduct I think is one of the most important dynamics in current jurisprudence, and one of the most troubling dynamics.

 

      And so I think the courts should be extremely leery of either embracing doctrines that relieve the government of accountability, including financial accountability, and very skeptical of creating new categorical exceptions to forms of accountability, including financial accountability, which is precisely what the government is trying to achieve in this case. And I think it should be rejected.

 

Jeffrey Redfern:  I agree wholeheartedly. The last thing I just want to emphasize about this case is that accountability, particularly in the takings context, doesn’t mean that the government is always doing something wrong or that we are trying to punish anyone. A house was destroyed, and the question is who is the right person to pay for it? Is it the hapless homeowner who did absolutely nothing wrong and just got unlucky, or is it the public at large whose officers decided to destroy it and who did admittedly benefit the community at large by taking a dangerous person off the street? And respectfully, we think that the Constitution requires the latter.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I would like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.