      In the United States Court of Federal Claims
                                  No. 17-528L
                           (Filed: October 16, 2017)


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ERICH BACHMANN and
MONA BACHMANN,
                                                       Takings Clause; U.S.
             Plaintiffs,                               Const. amend. V.; Inverse
                                                       Condemnation due to
                                                       property damage; Police
v.                                                     Power Exception; Private
                                                       Property Damage.
THE UNITED STATES,

             Defendant.

**********************

      Sterling Scott Winchell, Irvine, CA, for plaintiffs.

       Sarah Izfar, United States Department of Justice, Environment &
Natural Resources Division, Natural Resources Section, Washington, DC,
for defendant.


                                  OPINION

BRUGGINK, Judge.

       Plaintiffs, Erich and Mona Bachmann, own a rental property in
Desert Hot Springs, California, that the United States Marshals Service
(“USMS”) damaged during a criminal investigation on October 5, 2015.
Plaintiffs filed their complaint on April 14, 2017. They allege that the
USMS effected a Fifth Amendment taking of their real property without
just compensation due to the damage caused by USMS’s entry onto their
property to apprehend a fugitive.
       Pending is defendant’s motion to dismiss pursuant to Rule 12(b)(6)
of the Rules of the United States Court of Federal Claims (“RCFC”).
Defendant contends that the USMS damaged the Bachmann property in an
exercise of the police power of the United States, and thus that damage
could not amount to a compensable Fifth Amendment taking. Defendant
also argues that, if plaintiffs claim the law enforcement activity was
unlawful, the damage is only actionable in tort rather than pursuant to the
Fifth Amendment. The motion is fully briefed, and we held oral argument
on October 3, 2017. Because the damage to plaintiffs’ property occurred
during the exercise of the police power, the Takings Clause is not
implicated. We therefore grant defendant’s motion to dismiss.

                             BACKGROUND 1

      Erich and Mona Bachmann own a single family house in Desert Hot
Springs, California. The couple rented the house to a tenant while they lived
in Long Beach, California. In September 2015, their tenant began an
extended absence from the house, leaving it empty. During the tenant’s
absence, a third party, Jose Castillo, entered the house without plaintiffs’
knowledge. At the time, the United States Marshals Service Fugitive Task
Force was seeking Mr. Castillo as a suspect.

        The USMS became aware that Mr. Castillo was in the Bachmann
house. On October 5, 2015, law enforcement officers surrounded the house
and surveilled it throughout the day. That evening the USMS, with the
assistance of the Riverside County, California, Sheriff’s Department,
forcefully entered the house and apprehended Mr. Castillo. Plaintiffs allege
that the USMS used gunfire, smoke bombs, tear gas, a battering ram, and a
robot to gain entry. They further allege that the USMS damaged the
surrounding fence, as well as the windows, doors, and interior of the house.

        Neither plaintiffs nor their tenant knew of the raid or the damage at
the time. Subsequent to the raid, incidents of theft and vandalism further
damaged plaintiffs’ property. More than a month later, plaintiffs received an
electric bill for November 2015 that alerted them that their supposedly-
empty rental property had significant electric use for the prior month. Mona
Bachmann called the next-door neighbor, Sherry Johnson, who told Mrs.
Bachmann about the law enforcement activity the previous month.

1
  These facts are drawn from plaintiffs’ complaint and assumed to be
correct for purposes of ruling on the motion to dismiss.
                                     2
       Plaintiffs filed an administrative tort claim for property damage with
the USMS on February 11, 2016. 2 Plaintiffs then filed a complaint in this
court, alleging an unconstitutional taking of their property for public use
without just compensation in violation of the Fifth Amendment of the
United States Constitution.

                               DISCUSSION

       Plaintiffs allege that by damaging their property and leaving it
susceptible to further damage, the USMS not only deprived them of value in
their property, but also took it for public use, namely, for the purpose of
apprehending Mr. Castillo. Defendant responds that plaintiffs cannot state a
claim for compensation because, when law enforcement officials damage
private property in the process of enforcing criminal law, they are doing so
as an exercise of the government’s inherent police power and not as an
exercise of the right implicit in the takings clause to take private property
for public use. 3

       On the facts as alleged, we agree with plaintiffs that they have
suffered a serious injury as innocent third parties. We must also agree with


2
  The USMS has since denied plaintiffs’ claim.
3
  Defendant also contends that, if plaintiffs argue the USMS raid was
unlawful, plaintiffs’ claim is one for damages from tortious government
action over which the Court of Federal Claims does not have jurisdiction.
Throughout their complaint, plaintiffs imply that the damage the USMS
caused was, at a minimum, unreasonable and potentially unlawful. Compl.
¶¶ 3, 4, 8; Pls.’ Resp. to Def.’s Mot. to Dismiss 2-3. This court has
jurisdiction to adjudicate claims arising out of the Fifth Amendment
Takings Clause. Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir.
1987). If plaintiffs claim that they are entitled to compensation due to
unlawful police action, however, they are, in effect, asserting tortious
conduct. This court does not have jurisdiction over tort claims. Instead, the
property owner must pursue the claim administratively first, and then, if
necessary in district court. Rith Energy, Inc. v. United States, 247 F.3d
1355, 1365 (Fed. Cir. 2001). Because plaintiffs did not directly challenge
the lawfulness of the USMS action, however, we resolve the matter on the
assumption that they do not dispute the lawfulness of the USMS’s action.

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defendant, however, that the law does not afford a remedy for this injury
through the Takings Clause of the Fifth Amendment.

        The parties are unable to cite to the court any controlling precedent
directly on point with the facts alleged here: significant, permanent damage
to real property held by innocent parties as a consequence of lawful actions
by the police. We resort therefore to some basic principles. The Fifth
Amendment to the United States Constitution guarantees that private
property shall not “be taken for public use, without just compensation.”
U.S. Const. amend. V. Inverse condemnation is a cause of action used to
recover the lost value of property when plaintiffs’ property has been taken
by the government without any formal use of the eminent domain power.
United States v. Clarke, 445 U.S. 253, 257 (1980). When alleging any
taking theory, the nature of the government’s action is critical, because
plaintiffs must demonstrate that property was taken for public use by lawful
action. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,
488-89 (1987).
        Historically, the Supreme Court of the United States has drawn a
distinction on the one hand between the exercise of the police power to
enforce the law to remove or restrict nuisances, blights, and other unlawful
use of property and, on the other hand the government “taking property for
public use.” Mugler v. Kansas, 123 U.S. 623, 669 (1887); see also Miller v.
Schoene, 276 U.S. 272, 279-80 (1928) (“[W]here the public interest is
involved preferment of that interest over the property interest of the
individual, to the extent even of its destruction, is one of the distinguishing
characteristics of every exercise of the police power which affects
property.”). This distinction flows from the principle that owners are not
entitled to unlimited uses of their property. Unlawful uses or nuisances are
not protected. Pennsylvania Coal Co. v. Mahon, 290 U.S. 393, 413 (1922);
Mugler, 123 U.S. at 669. Simultaneously, law enforcement must have the
authority to enter onto or seize property, and in some instances damage
property, in order carry out their duty to enforce the law. See AmeriSource
Corp. v. United States, 525 F.3d 1149, 1154-55 (Fed. Cir. 2008). When
private property is damaged incident to the exercise of the police power,
such damage is not a taking for the public use, because the property has not
been altered or turned over for public benefit. Instead, both the owner of the
property and the public can be said to be benefited by the enforcement of
criminal laws and cessation of the criminal activity. See Nat’l Bd. of Young
Men’s Christian Ass’ns v. United States, 395 U.S. 85, 92-93 (1969).


                                      4
        In the context of personal property, the Federal Circuit has explained
that, when law enforcement officials seize and retain property as the
suspected instrumentality or evidence of a crime, that property “is not taken
for a ‘public use’ within the context of the Takings Clause.” AmeriSource,
525 F.3d at 1153. Even when the property subject to seizure or investigation
is returned in a damaged condition, the loss of value does not constitute a
compensable taking. Id. at 1153-54 (holding that when police acted to seize
a distributor’s pharmaceuticals during a criminal investigation and returned
the pharmaceuticals only after the expiration date, a taking did not result,
because the limits on police power are “largely imposed by the Due Process
Clause”). AmeriSource is potentially distinguishable, however, because it
dealt with personalty, and that personalty was the object of the police
activity. Seay v. United States, 61 Fed. Cl. 32 (2004), is to the same effect:
when seized, retained personal property was returned to plaintiff damaged
due to the government’s storage plumbing rupturing, no taking had been
effected because the property was seized and retained during a criminal
investigation. Id. at 35. Here, the real property was incidental to the object
of the invasion, namely, apprehending Mr. Castillo. Under the existing law,
does that make a difference? We think not.
        The USMS temporarily entered and damaged plaintiffs’ rental
property in order to arrest a suspect hiding out within the house. The
operation was limited to putting the house under surveillance in order to
capture Mr. Castillo. The only reason USMS and other law enforcement
officials were concerned with plaintiffs’ property was because a fugitive
was using the house as his hideout. The USMS used perhaps the most
traditional function of the police power: entering property to effectuate an
arrest or a seizure. Despite its owners’ lack of knowledge, the house had
become instrumental to criminal activity. Plaintiffs acknowledge that the
USMS “performed these actions deliberately for the public’s safety, to
protect the public from a wanted suspect who was perceived by law
enforcement to be a danger to the general public.” Compl. ¶ 6. Although it
would be ideal if such raids were carried out without damage to the private
property associated with the investigation, the damage to the house was
incident to securing the safety and welfare of both plaintiffs’ property and
the community at large. Thus, the damage caused in the course of arresting
a fugitive on plaintiffs’ property was not a taking for public use, but rather
it was an exercise of the police power of the United States.




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         Despite the use of police power at issue in this case, plaintiffs assert
that the language and spirit of the Fifth Amendment Takings Clause
contemplate payment by the public for damage incidental to the exercise of
the police power. Plaintiffs cite a number of cases arising out of state
constitutional provisions similar to the federal takings clause, namely
Minnesota and Texas constitutional provisions. But both states expressly
provide for payment for property damage in their state constitution. Wegner
v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 40-42 (Minn. 1991) (holding
that the property owner could state a taking claim for property damage
pursuant to the Minnesota Constitution when police fired tear gas into the
house when apprehending an armed suspect) (quoting Minn. Const. art. I, §
13, “Private property shall not be taken, destroyed or damaged for public
use without just compensation, first paid or secured.”); Steele v. Houston,
603 S.W.2d 786, 790-92 (Tex. 1980) (holding that the property owner could
state a taking claim for property damage pursuant to the Texas Constitution
when police set fire to the house to capture escaped convicts) (quoting Tex.
Const. art. 1, § 17, “No person’s property shall be taken, damaged or
destroyed for or applied to public use without adequate compensation being
made . . . .”). California, where plaintiffs live, also expressly includes
damage to property in the state constitution takings provision. Cal. Const.
art. I, § 19 (“Private property may be taken or damaged for a public use and
only when just compensation . . . has first been paid to, or into court for, the
owner.”).
       Federal jurisprudence does not reflect the same broad inclusion of all
types of property damage within the scope of the Takings Clause. E.g.,
Gibson v. United States, 166 U.S. 269, 274-75 (1897) (noting the difference
between the Pennsylvania constitution’s takings provision and the Fifth
Amendment Takings Clause); see also Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1029 (1992); AmeriSource, 525 F.3d at 1153-54;
B.F. Trawlers v. United States, 27 Fed. Cl. 299, 305 (1992). Just as a
distinction has been drawn between an exercise of the police power and a
taking for public use, “a distinction has been made between damage and
taking, and that distinction must be observed in applying the constitutional
provision.” Bedford v. United States, 192 U.S. 217, 224 (1904) (citing
Gibson, 166 U.S. at 274-75 as “[a]n excellent illustration” in which the
Court held building a dyke to improve navigation and thereby preventing
access to plaintiff’s landing place did not result in a taking).




                                       6
       Requiring money to be spent to repair damage does not rise to the
level of a physical or regulatory taking. See Atlas Corp. v. United States,
895 F.2d 745, 757-58 (Fed. Cir. 1990) (holding that a statute requiring
nuclear power contractors to fund the reclamation and decommissioning of
a nuclear power site was not a taking). Particularly where property has been
used in a harmful or dangerous manner that is threatening to the lives and
property of others, the government may damage the property to rectify the
harm, without triggering a Fifth Amendment taking. Lucas, 505 U.S. at
1029, n.16; United States v. Pacific R.R., 120 U.S. 227, 239-40 (1887)
(military operations); Bowditch v. Boston, 101 U.S. 16, 18-19 (1879) (fire);
see also B.F. Trawlers, 27 Fed. Cl. at 305 (holding that no taking claim
resulted when the Coast Guard sank a seized boat which constituted a
danger to navigation).
        Nor does the innocence of the property owner convert what is
otherwise the proper, non-compensable exercise of the police power into a
Fifth Amendment taking, even when that property is subject to forfeiture.
See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-85
(1974) (holding that there was no taking where a yacht that the owner had
leased was forfeited due to the discovery of marijuana on board, despite the
owner of the having “no knowledge that its property was being used in
connection with or in violation of” the law). Plaintiffs have not been
deprived of title to, use, or possession of their property or been subjected to
restrictions on the use of their property. Although they must bear the cost of
repair to their property after it was damaged in the police raid, the damage
does not constitute an appropriation of the property for government or
public use. The damage to the property was a consequence of the harmful
use it was being put to by Mr. Castillo.
       We do not find a principled reason to treat this realty case differently
from the personalty cases. The only way to compensate plaintiffs pursuant
to the Takings Clause would be to adopt their proposed analysis, creating a
cause of action which is analogous to the Penn Central test. See Penn
Central Transp. Co. v. City of New York, 438 U.S 104, 124 (1978). Such a
cause of action would require a highly fact-intensive analysis, considering
the lawfulness or reasonableness of the police action, the temporal nature of
the action, whether personalty or realty were involved, and the economic
impact on the property. We decline to create such a test today without a




                                      7
warrant from the Supreme Court and because it would place this court in
the position of second-guessing the police conduct at issue. 4

                             CONCLUSION

      We hold that plaintiffs have not suffered a taking of their property
for public use without just compensation. We therefore grant defendant’s
motion to dismiss pursuant to RCFC 12(b)(6). The clerk is directed to
dismiss the complaint and to enter judgment accordingly. No costs.


                                                s/Eric G. Bruggink
                                                Eric G. Bruggink
                                                Senior Judge




4
  Plaintiffs apparently have been unsuccessful in their tort claim, although
there may be other avenues of relief available in state court, or through a
congressional reference. Pursuant to 28 U.S.C. §§ 1492, 2509 (2012),
Congress has the option of referring this matter to the court for
consideration of whether the interests of justice require that plaintiffs be
compensated for the damage the USMS inflicted as a result of the raid and
arrest. See, e.g., White Sands Racehorse of New Mexico, 14 Cl. Ct. 559
(1988); Shane v. United States, 3 Cl. Ct. 294 (1983).

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