KALISPELL, Mont.—Vicki Baker was ready to close the sale of her house in McKinney, Texas, in July four years ago. She and her new husband were settling into a new home in Montana. Her daughter, Deanna Cook, lived in the McKinney house pending the sale closing.
She said the future seemed as bright and boundless as the view from her Montana mountaintop home.
On July 25, 2020, the sale was canceled, the house had more than $50,000 in damage courtesy of the McKinney Police Department’s Special Weapons and Tactics team, and a fugitive was lying dead in what had been Baker’s master bedroom.
Baker, and the public interest law firm, Institute for Justice, have petitioned the U.S Supreme Court to hear Baker’s claim that the damage constitutes a taking under the Fifth Amendment to the U.S. Constitution. As such, the city would be obligated to provide Baker just compensation for the damage.
The city of McKinney denies it owes Baker anything because the police were legally exercising their power while responding to an emergency. McKinney appears to have legal precedence on its side.
“Our appellate counsel will be responding in opposition to Ms. Baker’s request to the Supreme Court to hear an appeal of her case,” Denise Lessard, McKinney’s Senior Media & Public Relations Manager, wrote in an email to The Epoch Times.
However, Jeffrey Redfern of the public interest law firm Institute for Justice, who is representing Baker, says the lower courts got it wrong. He said those courts claim to have found exceptions to the Takings Clause where none are listed.
He pointed out that when the Fifth Amendment was written, the United States had no professional law enforcement agencies.
“So I think the idea that, you know, James Madison, when he was drafting this would have thought that there was an unwritten sort of secret exception for a type of government officer, that he couldn’t have even imagined yet, is pretty far out there,” he told The Epoch Times.
He said the Supreme Court has consistently ruled that the Constitution requires payment for property damage under the Fifth Amendment’s Takings Clause.
The Takings Clause states, “No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
“As a society, we pay for police salaries, training, equipment, and the cost of running a criminal justice system. We should also pay for the damage that the police must sometimes inflict on innocent property owners,” Institute for Justice’s petition said.
“The U.S. Supreme Court recognized in a pretty famous case involving the building of a dam that when the government destroys private property physically, that’s also a taking,” Redfern said.
Baker’s former part-time handyman, Wesley Little, had barricaded himself in the home with a 15-year-old girl. Cook relayed the seriousness of the situation to her mother with an ominous statement.
“She said, ‘Mom, you don’t know how bad this man is,’” Baker told The Epoch Times.
Little released the teen, who told police he was armed and in no mood to surrender. Little told police negotiators the same thing. Eventually, the SWAT team decided to go in after the fugitive.
Before it was over, windows were broken, the garage door was smashed in, and everything in the house—walls, floors, and furniture—was saturated with tear gas.
Little kept his promise not to be taken alive by shooting himself in Baker’s bedroom.
“On my beautiful, beautiful, beautiful bed,” she said.
Baker is not the only Institute for Justice client left holding the bag after a SWAT team raid, Redfern said.
Carlos Pena has owned and operated NoHo Printing and Graphic Design for more than 30 years. On Aug. 3, 2022, he was in the North Hollywood, California, shop he had leased for 13 years when he was confronted by a man running from U.S. Marshals, court records state.
The fugitive knocked him to the ground and then ran into the shop. Stunned, Pena got up as the Marshals ordered him away from the building, court records state.
“I didn’t realize exactly what was going on,” Pena told The Epoch Times. “I was out of it because you never think that this is going to happen to you.”
The Los Angeles police SWAT team was called to assist. The team raided the business using tactics similar to those used in McKinney.
Pena said when it was over his business had holes in the ceiling and walls. There were footprints on some of his equipment, and boxes of supplies were torn open, exposing the contents to tear gas that flooded the building. In court, he claimed $60,000 in damage.
“I saw all the work of my life thrown away,” Pena said.
The fugitive escaped, court records state.
Pena and Baker each contacted their respective insurance companies and city officials for help with repair and cleanup costs.
Baker’s home insurance provider, whom she says was very sympathetic, said there was little she could do other than pay for cleaning up the blood from Little’s suicide. Most homeowner policies don’t cover damage sustained through government action.
The city’s insurance carrier, the Texas Municipal League, sent an Aug. 20, 2020, letter advising that neither the city nor any of its employees were responsible for the damage.
“The officers have immunity while in the scope and course of their job duties. For this reason, we must respectfully deny this claim in its entirety,” Yvonne Cantu, a claims specialist for the Texas Municipal League Intergovernmental Risk Pool, wrote in the letter.
On March 3, 2021, Baker and Institute for Justice sued the city in the U.S. District Court for the Eastern District of Texas.
Redfern said that after Judge Amos L. Mazzant denied the city’s request to dismiss Baker’s suit, the city offered her $50,000 to settle.
“Vicki was willing to settle the case, but only if the city adopted a policy to ensure that anyone in Vicki’s situation in the future would also be compensated,” Redfern said. “The city refused.”
Ultimately, Mazzant ordered the city to pay Baker $59,656.65.
The city appealed, and the U.S. Court of Appeals for the Fifth Circuit reversed that ruling on Oct. 11, 2023.
“The city recognized the unique effects on Ms. Baker when it offered her the full amount of her damages. Regrettably, she rejected the city’s offer. However, we are pleased with the Fifth Circuit’s ruling,” Lessard wrote in her email to The Epoch Times.
Redfern agreed that police sometimes must damage property in emergency situations, as the Fifth Circuit court outlined in its ruling. However, he said violence is engaged in to protect society, not just the individual property owner.
“It’s not about wrongdoing [by police] ... but what’s the fair way to allocate that [financial] burden? Is that something that society as a whole should bear? Or is it something that we dump on one random, innocent, unlucky homeowner?” Redfern asked.
Pena said that after the raid, he lost the lease on his store, most of his big clients, and almost all of his walk-in business. He now works from his garage doing whatever jobs he can get with second-hand equipment. His wife, who had retired, has gone back to work.
“I’ve lost about 80 percent of my income,” Pena said.
Pena said he hasn’t decided whether to appeal the ruling.
Ivor Pine, deputy director of communications for the Los Angeles City Attorney’s office, declined an interview request.
“We do not comment on pending litigation,” Pine wrote in an email to The Epoch Times.
Pena, like Baker, doesn’t dispute the legitimacy of the police operation.
“The judge denied it, alleging that the SWAT team is immune because they were doing their job. So, in other words, it’s Carlos Pena’s [property], and so he has to pay. It’s ridiculous,” Pena said.
When asked if he is concerned that a victory in Baker’s case could chill police responses to situations that may result in property damage, Redfern said he expects the opposite effect.
“When we’ve talked to police officers who’ve been involved in these cases, they have generally told us that they were under the impression that the property owner was going to get compensated,” Redfern said.
“I think they would be more likely to hesitate if they knew that they were going to be visiting financial ruin on an innocent septuagenarian retiree who has no idea where she’s going to get the money to fix her house.”
