The Texas home of Vicki Baker, inset, was destroyed in a SWAT operation, and she is fighting for the city to pay for the damages. (Photos courtesy of the Institute for Justice)
A woman who won a court battle to get a Texas city to pay her nearly $60,000 for damages to her home caused by a SWAT team hunting an armed fugitive holding a 15-year-old girl hostage has been dealt a legal setback as a federal appeals court reversed the ruling.
In a decision on Wednesday, the 5th U.S. Circuit Court of Appeals said police did what was necessary to resolve the emergency in July 2020 when officers leveled a fence with an armored vehicle, busted down doors, used explosives and threw tear-gas grenades through windows of Vicki Baker’s home that was up for sale in McKinney, a Dallas suburb.
The raid left her home in shambles, prompting a prospective homebuyer to walk away, and the city refused to pay Baker.
So she filed a lawsuit in March 2021 in federal court, alleging a violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution, which says private property shall not “be taken for public use, without just compensation.”
And she won. A judge ruled that the city’s destruction of Baker’s home was a “taking” and that the damage was “intentional and foreseeable,” so the city must pay “just compensation. ”
But the city appealed.
In a ruling on Wednesday, the 5th U.S. Circuit Court of Appeals concluded that the clause does not require compensation for damaged property when it was “objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons.”
“Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community,” the ruling said. “Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we reverse.”
Her attorney, Jeffrey Redfern, with the nonprofit public interest law firm the Institute for Justice, said in an email to Law&Crime he would file a petition within the next two weeks asking the 5th Circuit to rehear the case. He said the panel decided the case on a basis not argued, without the benefit of briefing and got the question wrong.
“The Fifth Circuit rejected every argument offered by the city of McKinney but nevertheless ruled against Vicki Baker on a ground that had never been presented to the court and which we never had the opportunity to address,” he said. “Had the issue actually been raised, we would have demonstrated that the court’s ‘necessity’ exception to the Takings Clause is foreclosed by both history and precedent. The Supreme Court has just recently reminded the courts of appeal that their task is not to come up with arguments the parties should have made but to decide the ones they did make.
“Nevertheless, the good news for Vicki Baker is that she also prevailed under the Texas Constitution, and this ruling has no impact on that ground. One way or another, the city of McKinney is going to have to compensate her.”
Redfern said the city will have to compensate her because she prevailed in the trial court under both the U.S. and Texas constitutions.
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“When you win a case in TX under multiple grounds, you have to elect which one you want the court to enter judgment under,” he said. “That’s the only issue that the losing party can appeal. So we chose the U.S. Constitution, the city appealed, and the panel reversed, but we still have a win below under the TX Constitution. If our rehearing petition (and possible cert petition to the Supreme Court) is denied, then the case goes back down, and the court just reenters judgment under the TX Constitution.”
He said the city could appeal that judgment, but it would have “essentially zero chance of prevailing” because the Texas Supreme Court has already held that intentional destruction by police is a taking under the state constitution.
“The Fifth Circuit would have no choice but to follow the TX Supreme Court’s interpretation of state law,” he said.
A media representative for the city of McKinney did not respond to a request for comment from Law&Crime.
This drama began on July 25, 2020, when Baker’s adult daughter, who was at the home while Baker was away, notified authorities that a fugitive — who had done handyman work at the house but had been fired — was holding a runaway girl hostage in Baker’s house.
Police arrived, and a standoff ensued. Officers used an armored vehicle to knock the home’s fence down and smashed doors and shattered windows with tear gas canisters.
Police set up a perimeter and engaged in “loud hailing” using an intercom system. Soon after, the fugitive released the girl, who came out of the house. She told police the fugitive was in the ceiling, there were “a lot of long guns” and “some pistols,” and “he was obviously high on methamphetamine.”
The fugitive communicated to police that he “had terminal cancer, wasn’t going back to prison, knew he was going to die, was going to shoot it out with the police.”
Police used their arsenal, including toxic gas grenades, and watched the scene via a hovering drone. After a time, the drone reached a point where it could spot the fugitive, who “had taken his own life,” the court document said.
The police operation was deemed successful, and the damage was necessary to resolve the emergency, but the explosions left Baker’s dog permanently blind and deaf. A hazmat remediation team needed to be called in to clean the toxic gas from the home, and ceiling fans, plumbing, floors, and bricks needed to be replaced.
“Essentially, all of the personal property in the house was destroyed, including an antique doll collection left to Baker by her mother,” court documents said.
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