United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40644

____________

Vicki Baker, 

Plaintiff—Appellee, 

versus

City of McKinney, Texas, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:21-CV-176 

______________________________

Before Smith, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge: 

When an armed fugitive held a 15-year-old girl hostage inside plaintiffappellee Vicki Baker’s home, City of McKinney (the “City”) police officers 

employed armored vehicles, explosives, and toxic-gas grenades to resolve the 

situation. The parties agree the officers only did what was necessary in an 

active emergency. However, Baker’s home suffered severe damage, much of 

her personal property was destroyed, and the City refused to provide compensation.

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2023

Lyle W. Cayce

Clerk

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Baker brought suit in federal court alleging a violation of the Takings 

Clause of the Fifth Amendment to the United States Constitution, which 

states that private property shall not “be taken for public use, without just 

compensation.” The district court held that as a matter of law, the City violated the Takings Clause when it refused to compensate Baker for the damage 

and destruction of her property. The City timely appeals.

We conclude that, as a matter of history and precedent, the Takings 

Clause does not require compensation for damaged or destroyed 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. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.

I.

Baker was a long-time resident of McKinney, Texas when she made 

plans to sell her house and retire. She had already moved to Montana at the 

time of the events in question, July 25, 2020, and her adult daughter, Deanna 

Cook, was staying in Baker’s McKinney home to prepare it for final sale. 

Baker’s dog was also present at the home. 

On the morning of July 25, Cook saw a Facebook post that Wesley 

Little was on the run with a 15-year-old female “runaway.” Cook recognized 

Little because he “did some work inside of [Baker’s] home more than a year 

before the incident occurred.” Baker had fired him at that time because of 

comments that made Cook uncomfortable. 

That same morning, McKinney police spotted Little driving a 

Corvette with the 15-year-old girl. Officers began pursuit, but “[i]t was a very 

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fast Corvette,” and Little evaded police. He arrived at the Baker residence 

shortly thereafter with the 15-year-old girl and knocked on the door. Cook 

answered, and Little asked to come in and to put his car in the garage. Cook 

recognized the girl and, though frightened, formulated a plan to help: She 

agreed to let Little into the house, but then told him, falsely, that she had to 

go to the supermarket. Once away from the house, she called Baker and 

described the situation, and Baker called the police. 

City police arrived soon after and, in the words of one of the officers, 

“set up perimeter on the home and essentially tr[ied] to secure it. And what 

we[] [were] doing [was] for the well-being of not only the 15-year-old girl, but 

the community as a whole.” Officers employed a BearCat, which is an 

“armored personnel carrier,” and engaged in “loud hailing” using an 

intercom system. Soon after, Little released the girl and she exited the house. 

The girl told police that “he’s in the ceiling; she had pulled down the attic so 

he could get up there; they had a lot of long guns, some pistols; and that he 

was obviously high on methamphetamine.” 

Little somehow “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 proceeded to use explosive devices, the 

BearCat, a T-Rex (similar to the BearCat), toxic gas grenades, and a drone to 

try to resolve the situation. After some time, the drone was able to reach a 

vantage point to see that Little had taken his own life. 

It is undisputed that police acted unimpeachably that day, and no 

party in this case has ever suggested otherwise. At trial, Baker’s attorney 

made it a point on direct examination to underline that “there was some 

really good police work here,” it “was a successful operation,” “[e]veryone 

followed procedure,” and “[e]veryone did what they were supposed to do,” 

along with other affirmations that the officers acted irreproachably. Her

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attorney reiterated that the severe damage done to Baker’s home “was 

necessary. No issue there.” And in briefing, Baker makes clear she does not 

dispute that “it was necessary to destroy her house.” In light of the way

Baker has argued this case, we do not ourselves evaluate whether the damage 

to her home was “necessary”; we grant the parties’ shared contention that 

it was.

Nevertheless, the damage to Baker’s home was severe. As the district 

court explained, quoting Baker’s motion for summary judgment, “[m]uch of 

the damage went beyond what could be captured visually.” Specifically, 

The explosions left Baker’s dog permanently blind and deaf. 

The toxic gas that permeated the House required the services 

of a HAZMAT remediation team. Appliances and fabrics were 

irreparable. Ceiling fans, plumbing, floors (hard surfaces as 

well as carpet), and bricks needed to be replaced—in addition 

to the windows, blinds, fence, front door, and garage door. 

Essentially all of the personal property in the House was 

destroyed, including an antique doll collection left to Baker by 

her mother. In total, the damage . . . was approximately 

$50,000.

Baker filed a claim for property damage with the City, but the City

replied in a letter that it was denying the claim in its entirety because “there 

is no liability on the part of the City or any of its employees.” Baker’s 

insurance “would not cover any damage caused by the City’s police, 

including the structural damage.” Baker received numerous donations from 

businesses and others who had heard of her plight. She hasmaintained that if 

she should ever receive compensation from the City, she would pay back 

everyone who volunteered to help her. 

On March 3, 2021, Baker filed suit against the City in federal court in 

the Eastern District of Texas for violations of the takings clauses of the 

United States and Texas Constitutions. She alleged liability under the Fifth 

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Amendment directly because it “is self-executing” under Knick v. Township 

of Scott, 139 S. Ct. 2162, 2171 (2019), and she also alleged liability under the 

Fifth Amendment via the vehicle of 42 U.S.C. § 1983. She contended the 

district court has jurisdiction over her federal constitutional claims under the 

federal-question statute, 28 U.S.C. § 1331, and supplemental jurisdiction 

over the state takings claim under 28 U.S.C. § 1367.

The City filed a motion to dismiss under Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6). It argued that Baker has no cause of action 

under the Fifth and Fourteenth Amendments and that the City did not take 

Baker’s property under the Fifth Amendment; that Baker’s complaint failed 

to sufficiently allege Monell liability under § 1983;1 that the district court lacks 

supplemental jurisdiction over the Texas Constitution claim; and that the 

Texas Constitution claim fails because “it is a sheer attempt to allege tort 

recovery in a claim wearing takings claim clothing.” The district court denied 

the City’s motion in full. 

Baker filed a motion for partial summary judgment on her claims that 

the City is liable under the Fifth Amendment and the Texas Constitution. 

The district court granted it, holding that the City is liable directly under the 

Fifth Amendment and the Takings Clause of the Texas Constitution. The 

district court also held that “because the Fifth Amendment is self-executing, 

Baker’s claim under the Fifth Amendment Takings Clause is not dependent 

upon the § 1983 vessel. Accordingly, the Court need not determine whether 

Baker established an official policy under Monell.” (footnote omitted). But 

the district court explained in a subsequent order,

because Baker also brought a claim under §1983, the Court 

considered this claim as well, ultimately finding an issue of fact 

_____________________

1 See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

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that the Court declined to resolve at summary judgment. 

Further, the Court did not determine the amount of just 

compensation to which Baker is entitled. Accordingly, 

damages and the City’s liability under § 1983 are issues that 

have been reserved for jury determination at trial.

At a pre-trial conference, the City “lodge[d] an objection on the 

Monell issues,” claiming they have not “been adequately pled or presented 

in this case” and that the only thing left to try is the question of damages. The 

district court rejected this argument, stating that § 1983 “most certainly was 

pled. Without question, it’s pled in the alternative.”

At that same conference, the district court also noted that the City 

made an offer to Baker for “the full amount of damages” to settle the case. 

Baker refused because, her attorney said, “she wanted a change in policy or 

some assurance that people in her position in the future wouldn’t be 

subjected to similar denial of compensation, and the City wasn’t willing to 

offer that so that was why she proceeded.” 

Two weeks before trial, Baker filed a motion in limine to exclude 

evidence of donations or insurance proceeds she received to help repair her 

home. She cited the collateral source rule, which is a fixture of tort law, and 

equitable considerations. The district court agreed with Baker and granted 

the motion in full. 

Trial was held from June 20 to 22, 2022. On June 21, the City 

submitted a motion for judgment as a matter of law along with a supplemental 

brief arguing that (1) Baker did not adequately plead a plausible § 1983 claim 

against the City and (2) Baker failed to show that her alleged constitutional

injury was caused by an official city policy or custom, or by a city policymaker. 

The district court denied the motion.

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The jury found that the City was acting under color of state law when 

it refused to compensate Baker for her lost property and that the City’s 

refusal proximately caused Baker’s damages of $44,555.76 for her home and 

$15,100.83 for her personal property. Because the district court had already 

found that the Fifth Amendment is self-executing, that the City’s refusal to 

compensate Baker was a violation of the Fifth Amendment, and that the 

City’s refusal was a violation of the Texas Constitution, Baker was given the 

option to elect whether to pursue the judgment under the Fifth Amendment 

directly, under § 1983, or under the Texas Constitution. Baker chose § 1983.

The City submitted a motion for a new trial on July 20, 2022. The 

court denied it on August 26, 2022. The City timely filed a notice of appeal 

on September 23, 2022, challenging all the district court’s unfavorable 

decisions and orders stretching back to its denial of the City’s 12(b)(1) and 

12(b)(6) motions. 

II.

We begin with jurisdiction. The City contends that under our court’s 

decision in Devillier v. State, 53 F.4th 904 (5th Cir. 2023), cert. granted, 92 

U.S.L.W. 3063 (U.S. Sept. 29, 2023) (No. 22-913), federal courts lack 

jurisdiction over Baker’s Fifth Amendment takings claim. This contention 

fails foremost because Devillier made no jurisdictional holding. See id. at 904. 

The district court was therefore correct to hold that it had federal-question 

jurisdiction in this case pursuant to 28 U.S.C. § 1331.

2

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

_____________________

2 The City also contends that the district court lacked supplemental jurisdiction 

over Baker’s Texas Constitution claim pursuant to 28 U.S.C. § 1367. This contention fails 

because it is explicitly predicated on the claim that the district court lacked federal-question 

jurisdiction.

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III.

We turn now to the merits of Baker’s Fifth Amendment claim.

a.

The City invites our court to adopt a broad rule: because Baker’s 

property was damaged or destroyed pursuant to “the exercise of the City’s 

police powers,” there has been no compensable taking under the Fifth 

Amendment. We decline.

First, the City’s broad rule runs afoul of our precedent. As we 

explained in John Corp. v. City of Houston:

Appellants argue strenuously that their claims do not include a 

takings claim because they nowhere allege that the City used its 

power of eminent domain to take property for public use. 

Instead, Appellants assert that the city relied on its police 

powers to destroy their property. Such a distinction between 

the use of police powers and of eminent domain power, 

however, cannot carry the day. The Supreme Court’s entire 

“regulatory takings” law is premised on the notion that a city’s 

exercise of its police powers can go too far, and if it does, there has 

been a taking.

214 F.3d 573, 578 (5th Cir. 2000) (emphasis added). Indeed, the mere fact 

that Baker’s property has been damaged or destroyed pursuant to the City’s 

police power cannot decide this case.

Second, twentieth-century Supreme Court precedents cast doubt on 

the City’s proposed rule. As the Court said in Lucas v. South Carolina Coastal 

Council, 505 U.S. 1003, 1014 (1992), if “the uses of private property were 

subject to unbridled, uncompensated qualification under the police power, 

‘the natural tendency of human nature would be to extend the qualification 

more and more until at last private property disappeared.’” (quoting Pa. Coal 

Co. v. Mahon, 260 U.S. 393, 415 (1922) (“But that cannot be accomplished in 

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this way under the Constitution of the United States.”)). Similarly, in Loretto 

v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425 (1982), the Court 

noted that a given regulation might be “within the State’s police power. . . . 

It is a separate question, however, whether an otherwise valid regulation so 

frustrates property rights that compensation must be paid.” 

Third, the Court has noted that takings cases “should be assessed 

with reference to the ‘particular circumstances of each case,’ and not by 

resorting to blanket exclusionary rules.” Ark. Game & Fish Comm’n v. United 

States, 568 U.S. 23, 37 (2012) (quoting United States v. Cent. Eureka Mining 

Co., 357 U.S. 155, 168 (1958)). The City’s proposed rule is an exceptionally 

broad exclusionary rule. And it is broader than any rule necessary to decide 

this case. 

Fourth, the Court has increasingly intimated that history and 

tradition, including historical precedents, are of central importance when 

determining the meaning of the Takings Clause. See Tyler v. Hennepin 

County, 598 U.S. 631, 637-44 (2023) (determining the applicability of the 

Takings Clause from “[h]istory and precedent” reaching back to the Magna 

Carta); Horne v. Department of Agriculture, 576 U.S. 350, 357-61 (2015); see 

also Murr v. Wisconsin, 582 U.S. 383, 419 (2017) (Thomas, J., dissenting) (“In 

my view, it would be desirable for us to take a fresh look at our regulatory 

takings jurisprudence, to see whether it can be grounded in the original public 

meaning of the Takings Clause . . . .”).

The City’s arguments for its broad rule are ahistorical. It relies 

primarily on recent precedents from our sister circuits, especially Lech v. 

Jackson, 791 F. App’x 711 (10th Cir. 2019) (unpublished). See also Johnson v. 

Manitowoc Cnty., 635 F.3d 331 (7th Cir. 2011); AmeriSource Corp. v. United 

States, 525 F.3d 1149 (Fed Cir. 2008). The City is correct that these 

precedents have endorsed the rule the City now invites our court to adopt. 

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But with respect to our sister circuits, their opinions do not rely on history, 

tradition, or historical precedent, and moreover, the rule they adopt is 

inconsistent with our court’s precedent. Compare Lech, 791 F. App’x at 717 

(“[We] hold that when the state acts pursuant to its police power, rather than 

the power of eminent domain, its actions do not constitute a taking for 

purposes of the Takings Clause.”) with John Corp., 214 F.3d at 578 (“[A]

city’s exercise of its police powers can go too far, and if it does, there has been 

a taking.”).

Our own analysis of history and precedent, undertaken below, further 

explains why we decline to adopt the City’s broad rule. But first, we turn to 

Baker’s arguments.

b.

Much of Baker’s briefing is devoted to explaining why we should 

reject any categorical “police power” exclusion from Takings Clause 

liability. In the absence of such an exclusion, she claims, “like every other 

time the government’s agents destroy property, a Takings analysis applies.” 

And “[i]n this case, that analysis is straightforward: The damage was 

intentional and foreseeable, it was for the public use, and no recognized 

exception to liability applies.”

Baker attends more closely to historical precedent than does the City. 

She specifically relies on Pumpelly v. Green Bay & Mississippi Canal Co., 80 

U.S. (11 Wall.) 166, 181 (1871), for the proposition that “where real estate is 

actually invaded . . . so as to effectually destroy or impair its usefulness, it is 

a taking, within the meaning of the Constitution.” Pumpelly was an inverse 

condemnation case in the context of a dam, which Wisconsin had legislated 

to be built, that flooded the plaintiff’s property. In that case, the Supreme 

Court said,

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It would be a very curious and unsatisfactory result, if in 

construing a provision of constitutional law, always understood 

to have been adopted for protection and security to the rights 

of the individual as against the government, and which has 

received the commendation of jurists, statesmen, and 

commentators as placing the just principles of the common law 

on that subject beyond the power of ordinary legislation to 

change or control them, it shall be held that if the government 

refrains from the absolute conversion of real property to the 

uses of the public it can destroy its value entirely, can inflict 

irreparable and permanent injury to any extent, can, in effect, 

subject it to total destruction without making any 

compensation, because, in the narrowest sense of that word, it 

is not taken for the public use. Such a construction would 

pervert the constitutional provision into a restriction upon the 

rights of the citizen, as those rights stood at the common law, 

instead of the government, and make it an authority for 

invasion of private right under the pretext of the public good, 

which had no warrant in the laws or practices of our ancestors.

Id. at 177–78.

But while we agree with Baker that Pumpelly further undercuts the 

City’s proposed rule, it provides only limited help for Baker herself. To 

repeat, Pumpelly was a flooding case that dealt with a dam constructed 

pursuant to Wisconsin legislation. The facts of Pumpelly are facially distinct 

from those at bar, where officers damaged or destroyed Baker’s property by 

necessity during an active emergency—an emergency that began as a hostage 

situation involving a child and evolved into a potential shootout in a 

residential neighborhood with a heavily armed fugitive. 

What Baker needs, in other words, is historical or contemporary 

authority that involves facts closer to those at bar and where the petitioner 

succeeded under the Takings Clause. But Baker provides no such authority.

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c.

When we turn to “[h]istory and precedent,” Tyler, 598 U.S. at 639,

we find that historically oriented legal scholarship has widely converged on 

the thesis that a “necessity” or “emergency” privilege has existed in 

Takings Clause jurisprudence since the Founding.3

_____________________

3 See, e.g., William J. Novak, Common Regulation: Legal Origins of State Power in 

America, 45 Hastings L.J. 1061, 1092 (1994) (“American courts and commentators 

consistently referred to a line of English cases making it ‘well settled at common law’ that 

in cases of calamity (e.g., fire, pestilence, or war) individual interests, rights, or injuries 

would not inhibit the preservation of the common weal. Thus, private houses could be 

pulled down or bulwarks raised on private property without compensation when the safety 

and security of the many depended upon it.”); Shelley Ross Saxer, Necessity Exceptions to 

Takings, 44 U. Haw. L. Rev. 60, 67 (2022) (“[T]he common law defense of public necessity 

bars the rights of property owners to obtain recourse or compensation when government 

destroys private property for the public good.”); Brian Angelo Lee, Emergency Takings, 114 

Mich. L. Rev. 391, 391, 393 (2015) (“Remarkably, however, courts have repeatedly held 

that if the government destroys property to address an emergency, then a ‘necessity 

exception’ relieves the government of any obligation to compensate the owner of the 

property that was sacrificed for the public good. . . . Indeed, courts and scholars have said 

that [this] principle has been well-established law for centuries.”); Susan S. Kuo, Disaster 

Tradeoffs: The Doubtful Case for Public Necessity, 54 B.C. L. Rev. 127, 127 (2013) (“When 

government takes private property for a public purpose, the Fifth Amendment of the U.S. 

Constitution requires just compensation. Courts, however, have long recognized an 

exception to takings law for the destruction of private property when necessary to prevent

a public disaster.”); Derek T. Muller, “As Much Upon Tradition as Upon Principle”: A 

Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre 

Dame L. Rev. 481, 483–85 (2006) (describing the “privilege of necessity destruction” 

which reaches to back to the common law and allows that “the government may destroy 

property in times of necessity during law enforcement, such as burning down a home to 

capture a barricaded criminal” without providing compensation); Note, Necessity Takings 

in the Era of Climate Change, 136 Harv. L. Rev. 952, 953 (2023) (“Since the earliest days 

of the Republic, U.S. courts have sanctioned violations of private property rights without 

compensation under conditions of public necessity. The quintessential application of this 

doctrine has been in the destruction of private property to create a firebreak . . . . But the 

principle . . . . has expanded beyond classical paradigms . . . to include activities [such as] 

law enforcement.”).

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For example, in Respublica v. Sparhawk, 1 U.S. 357 (Penn. 1788), the 

Pennsylvania Supreme Court considered a claim for compensation for 227 

barrels of flour that had been moved by the government to a depot and later 

lost to the British. The court asked whether “by reason, by the law of nations, 

and by precedents analogous to the subject before us,” compensation could 

be awarded. The court answered no, on the ground that “the rights of 

necessity, form a part of our law.” Id. at 362. It explained,

Of this principle, there are many striking illustrations. If a road

be out of repair, a passenger may lawfully go through a private 

enclosure 2 Black. Com. 36. So, if a man is assaulted, he may 

fly through another’s close. 5 Bac. Abr. 173. In time of war, bulwarks may be built on private ground. Dyer. 8. Brook. trespass. 

213. 5 Bac. Abr. 175. . . . Houses may be razed to prevent the 

spreading of fire, because for the public good. Dyer. 36. Rud. L. 

and E. 312. See Puff. lib. 2. c. 6. sec. 8. Hutch. Mqr. Philos. lib. 

2. c. 16. We find, indeed, a memorable instance of folly recorded in the 3 Vol. of Clarendon’s History, where it is mentioned, that the Lord Mayor of London, in 1666, when that city 

was on fire, would not give directions for, or consent to, the 

pulling down forty wooden houses, or to the removing the furniture, &c. belonging to the Lawyers of the Temple, then on 

the Circuit, for fear he should be answerable for a trespass; and 

in consequence of this conduct half that great city was burnt.

Id. at 363. Given this principle of necessity, the court explained, “there is 

nothing in the circumstances of the case, which, we think, entitles the Appellant to a compensation . . . .” Id.

Sparhawk is a 1788 case. It is therefore directly on point to 

understanding the common law rights to just compensation against which the 

Fifth Amendment Takings Clause was ratified in 1791. And it articulates what 

appears to have been a guiding rationale for this common law necessity

exception: the fear that if the state risks liability for the damage or destruction 

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of property during a public emergency, then the state may not be so quick to 

damage or destroy it, and such hesitancy risks catastrophe.

The idea that public emergency allows the government to damage or 

destroy property without compensation remained prominent after Sparhawk.

For example, in 1822, a committee of the 17th Congress considered a petition 

for compensation from a Louisianan whose property was inundated due to 

American military action during the British invasion of Louisiana in 1814. See 

Property Destroyed During the Invasion of Louisiana by the British in 1814–

’15, 17th Cong., 1st Session, No. 587 (1822).

4As the congressional committee

described, “the enemy had landed near the city of New Orleans, [and] in 

order to prevent him from bringing up his cannon and other ordnance to the 

city, General Morgan, commanding the Louisiana militia, caused the levee to 

be cut through at or near the plantation of the petitioner.” Id. “In 

consequence, the petitioner suffered great losses in the destruction of his” 

property, to the tune of $19,250. Id. The congressional committee stated 

that this injury done the petitioner was done in the necessary 

operations of war, and that the United States are not liable for 

the individual losses sustained by that inundation; and 

therefore [the committee] recommend[s] the adoption of the 

following resolution: Resolved, That the prayer of the petitioner 

ought not to be granted.

Id.

Cases closer to the ratification of the Fourteenth Amendment 

demonstrate the longevity of the necessity privilege.5 For example, in Field v. 

_____________________

4 Available at https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=036/llsp036.db&Page=835.

5 See also N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2163 (2022) 

(Barrett, J., concurring) (noting the “‘ongoing scholarly debate on whether courts should 

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City of Des Moines, 39 Iowa 575, 577–78 (1874), a plaintiff sought to recover 

against the city of Des Moines after it razed his house to prevent further 

spreading of a fire. The Iowa Supreme Court explained,

In Dillon on Municipal Corporations, Sec. 756, the learned 

author states the common law doctrine as clearly and 

succinctly as it is any where to be found. He says: “The rights 

of private property, sacred as the law regards them, are yet 

subordinate to the higher demands of the public welfare. Salus

populi suprema est lex. Upon this principle, in cases of imminent

and urgent public necessity, any individual or municipal officer may

raze or demolish houses and other combustible structures in a city 

or compact town, to prevent the spreading of an extensive 

conflagration. This he may do independently of statute, and 

without responsibility to the owner for the damages he thereby 

sustains.” The ground of exemption from liability in such cases 

is that of necessity, and if property be destroyed, in such cases, 

without any apparent and reasonable necessity, the doers of the 

act will be held responsible. 

Id. (emphases in original). Much the same analysis is found in numerous 

cases from the mid-nineteenth century. See, e.g., McDonald v. City of Red 

Wing, 13 Minn. 38, 40 (1868) (listing cases); The Mayor, &C. of N.Y. v. Rufus 

L. Lord, 18 Wend. 126, 132–33 (N.Y. 1837).

And when this same issue reached the Supreme Court in Bowditch v. 

City of Boston in 1879, only eleven years after the ratification of the 

Fourteenth Amendment, the Supreme Court explained:

At the common law every one had the right to destroy real and 

personal property, in cases of actual necessity, to prevent the 

spreading of a fire, and there was no responsibility on the part 

_____________________

primarily rely on the prevailing understanding of an individual right when the Fourteenth 

Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791”).

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of such destroyer, and no remedy for the owner. In the case of 

the Prerogative, 12 Rep. 13, it is said: ‘For the Commonwealth 

a man shall suffer damage, as for saving a city or town a house 

shall be plucked down if the next one be on fire; and a thing for 

the Commonwealth every man may do without being liable to 

an action.’ There are many other cases besides that of fire,—

some of them involving the destruction of life itself,—where 

the same rule is applied. ‘The rights of necessity are a part of 

the law.’ Respublica v. Sparhawk, 1 Dall. 357, 362. See also 

Mouse’s Case, 12 Rep. 63; 15 Vin., tit. Necessity, sect. 8; 4 T. 

R. 794; 1 Zab. (N. J.) 248; 3 id. 591; 25 Wend. (N. Y.) 173; 2 

Den. (N. Y.) 461.

In these cases the common law adopts the principle of 

the natural law, and finds the right and the justification in the 

same imperative necessity. Burlem. 145, sect. 6; id. 159, c. 5, 

sects. 24–29; Puffendorf, B. 2, c. 6.

101 U.S. 16, 18–19 (1879).

Bowditch was a case about Massachusetts law, but its lessons have 

permeated the Federal Takings Clause context. Justice Holmes, for example, said:

The general rule at least is that while property may be regulated 

to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, 

like the blowing up of a house to stop a conflagration, go—and

if they go beyond the general rule, whether they do not stand 

as much upon tradition as upon principle. Bowditch v. Boston, 

101 U. S. 16, 25 L. Ed. 980.

Pa. Coal Co., 260 U.S. at 415–16 (1922). 

Indeed, whatever we might think about the principle underlying the 

necessity privilege, its basis in history and tradition is longstanding and long 

recognized. This recognition has extended to more recent precedents, as 

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well. See, e.g., United States v. Caltex, 344 U.S. 149, 154-55 (1952) (“[T]he 

common law ha[s] long recognized that in times of imminent peril—such as 

when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of 

many more could be saved. . . . [And the] terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all 

who suffer from every ravage and burden of war.”); Lucas, 505 U.S. at 1029 

n.16 (“[The State may be absolved] of liability for the destruction of ‘real and 

personal property, in cases of actual necessity, to prevent the spreading of a 

fire’ or to forestall other grave threats to the lives and property of others.” 

(citing Bowditch, 101 U.S. at 18–19 and United States v. Pac. R.R., 120 U.S. 

227, 238–39 (1887))); see also Steele v. City of Houston, 603 S.W.2d 786, 792 

(Tex. 1980) (“The defendant City of Houston may defend its actions by 

proof of a great public necessity. . . . Uncompensated destruction of property 

has been occasionally justified by reason of war, riot, pestilence or other great 

public calamity.”). 

d. 

In sum, history, tradition, and historical precedent reaching back to 

the Founding supports the existence of a necessity exception to the Takings 

Clause. Today, we make no attempt to define the bounds of this exception. 

We hold only that in this case, the Takings Clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself 

claims, it was objectively necessary for officers to damage or destroy her 

property in an active emergency to prevent imminent harm to persons. We 

need not determine whether the necessity exception extends further than 

this.

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e.

We conclude by acknowledging two considerations that favor Baker’s 

position, despite all we have said.

First, while scholars have converged on the empirical, historical thesis 

that a necessity exception to the Takings Clause has existed since the Founding, they have also tended to converge on the view that it wrongs individuals 

like Baker.6 Second, and closely related, the Supreme Court has often stated

that “[t]he Fifth Amendment’s guarantee that private property shall not be 

taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all 

fairness and justice, should be borne by the public as a whole.” Armstrong v. 

United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. This 

statement’s relevance to Baker, who is faultless but must “alone” bear the 

burdens of a misfortune that might have befallen anyone, is manifest. As a 

lower court, however, it is not for us to decide that fairness and justice trump 

historical precedent, particularly Supreme Court precedent, where it has 

long recognized a necessity exception that excludes those like Baker from the 

protection of the Fifth Amendment’s Takings Clause. Such a decision would 

be for the Supreme Court alone.

IV.

Because Baker opted to pursue relief under § 1983, we do not reach 

whether she succeeds under the Texas Constitution. 

_____________________

6 In particular, see Kuo, Disaster Tradeoffs: The Doubtful Case for Public Necessity, 

54 B.C. L. Rev. 127 (2013), and Muller, “As Much Upon Tradition as Upon Principle”: A 

Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre 

Dame L. Rev. 481 (2006). 

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We REVERSE the district court’s summary judgment order finding 

that the City’s damaging or destroying Baker’s house and personal property 

was a compensable taking under the Fifth Amendment. We therefore 

VACATE the § 1983 judgment in her favor and REMAND for further 

proceedings.

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