Intriguing statement from two Justices after cert denial concerning Takings Clause and police destruction of private property

The Supreme Court this morning issued this order list that concludes with an interesting Statement by Justice Sotomayor joined by Justice Gorsuch respecting the denial of certiorari in a case from the Fifth Circuit, Baker v. City of McKinney.  Though not a sentencing case, it raises a common question relating to whether and how civil provisions in the Constitution might have application to crminal matters.  The facts of the case involve local police causing signifant property damage (over $50k) to Ms. Bakers while reasonably seeking to apprehend a violent and dangerous fugitive holed up therein. Here are portions of how Justice Sotomayor discusses the legal question raised:

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 government damages private property pursuant to its police power....

All agree that the McKinney police acted properly that day and that their actions were necessary to prevent harm to themselves and the public. [But] actions of the police also caused extensive damage to Baker’s home and personal belongings....

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 Amendment. 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 destroys 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 jurisprudence. 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....

The Court’s denial of certiorari expresses no view on the merits of the decision below. I write separately to emphasize 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 razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney 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 benefit.

The full story leading to the property damage, as well as the limited caselaw on these issues, are well covered in Justice Sotomayor's statement. Anyone intrigued should make sure to read the full six-page statement.