Eggleston v. Pierce County

148 Wash. 2d 760

• Court: Washington Supreme Court
• Decided: March 6, 2003
• Docket: No. 71296-4
• Status: Published

Opinions

Chambers, J.

Linda Eggleston’s home was rendered uninhabitable by the execution of a criminal search warrant and preservation order. She sought relief in state and federal court for alleged civil rights violations, including violation of article I, section 16 of the Washington State Constitution. Her claims in federal court have been stayed, and the Pierce County Superior Court dismissed her article I, section 16 claim at summary judgment. Today, we are asked only to determine whether she has suffered a compensable taking under article I, section 16 of the Washington State Constitution. We conclude she has not, and affirm.

FACTS

Mrs. Eggleston inherited a two-bedroom Tacoma home from her father in 1977. Mrs. Eggleston lived there with her adult son Brian Eggleston. Pierce County sheriffs received a tip that Brian was dealing drugs and placed the home under surveillance. Based on that surveillance, sheriffs obtained a search warrant. For safety reasons, officers decided to serve the warrants early in the morning of October 16, 1995. The team assembled at a nearby fire station and proceeded to the unlocked house.

Sheriff’s deputies entered the house, a fire fight broke out, and one officer lost his life. Brian was arrested and charged with murder, assault, and various drug crimes. A law enforcement team specializing in homicide investigations searched the home and found drugs, cash, weapons, and drug paraphernalia.¹ Brian has since been convicted of drug dealing, and awaits retrial on other charges. State v. Eggleston, noted at 108 Wn. App. 1011, 2001 WL 1077846, at **1.

That night, an officer took Mrs. Eggleston to her mother’s mobile home. The parties disagree whether Mrs. Eggleston could have moved home after the homicide team completed its search that evening. Brian’s defense counsel suggested she not go home until investigations were complete.

On April 15,1996, the trial court signed a search warrant authorizing the seizure of evidence pertaining to the murder from Mrs. Eggleston’s house. The search warrant specifically authorized the police to collect:

Video tapes of police television shows, blood samples, gunshot residue, bed sheet with bloody hand print, two upholstered chairs with bloodstains, [c]ollection of trace evidence. Any other evidence discovered during the reconstruction of the crime scene and documentation of the process with photographs and video taping, measuring, vacuuming, or other evidence techniques necessary to reconstruct the crime scene.

Clerk’s Papers (CP) at 264. The search warrant commanded the officers to “diligently search for any evidence, and any other, and if. . . evidence material to the investigation or prosecution of said felony ... be found . . . bring the same forthwith before me, to be disposed of according to law.” CP at 264.

Leaving a copy of the warrant on the family piano, officers collected evidence, including two walls. One wall was a load-hearing wall, leaving the house unstable and uninhabitable. Two months later the trial judge issued an order prohibiting “the defense, and any person acting on behalf of the defendant” from “destroying any item of possible evidentiary value” and “preserving] the scene which is the location of the acts ... in its entirety.” CP at 127.² Mrs. Eggleston has cooperated with this order and has lived in her mother’s mobile home ever since. She has not asked the trial court to modify this order to make it less burdensome upon her. While the attorneys discussed whether Mrs. Eggleston should be allowed to move back into her home, “it was kind of in limbo.” CP at 282.

Brian has been charged and tried for murder, assault, and drug crimes. The first jury found him guilty of the drug and assault charges but deadlocked on murder; the second jury convicted him of second degree murder. See Eggleston, 2001 WL 1077846, at *2. Both juries were taken to the house. The removed walls have not been used as evidence. The Court of Appeals reversed the assault and murder convictions and remanded for a new trial. Eggleston, 2001 WL 1077846, at **1, 34. The order preserving the scene will remain in effect until either vacated or modified, or until the criminal case is complete.

Mrs. Eggleston has not been charged with any crime. Her income consists of $500 a month in social security benefits, $420 of which is dedicated to the rent on her mother’s mobile home. In 1998, she filed a claim for damages with Pierce County. Pierce County rejected her claim. She then brought suit in state and federal court for the destruction and loss of use of her property under several theories, including takings under the Washington and United States Constitutions. Respondent Pierce County removed her state claims to federal court. The federal court issued a stay covering her federal claims and returned the state takings claim to the Pierce County Superior Court. Eggleston v. Pierce County, 99 P. Supp. 2d 1280, 1283 (W.D. Wash. 2000).³ This state takings claim is the only issue before us.

Each party moved for summary judgment. The trial court judge granted summary judgment to the county. We accepted direct review.

ANALYSIS⁴

We are mindful that Mrs. Eggleston has suffered a tragic loss of real property. Her loss may be compensable under a variety of theories not before us, including violation of the fourth, fifth, and fourteenth amendments to the United States Constitution. She has pleaded facts that might give rise to a substantive due process claim. But her claim is not a cognizable takings.

Article I, section 16 is significantly different from its United States constitutional counterpart, and in some ways provides greater protection. See, e.g., Mfr’d Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 356 n.7, 13 P.3d 183 (2000). Generally, we require the parties to present a Gunwall analysis (State v. Gunwall, 106 Wn.2d 54, 720 P.2d (1986)) before we will consider their state constitutional contentions. See Mfr’d Hous., 142 Wn.2d at 356 n.7. However, in this case, we find that neither party was prejudiced by the lack of an early Gunwall analysis, and reach the substantive claim.⁵

The power and the obligation of eminent domain plays a critical role in constitutional governance, and courts are obligated to carefully monitor its exercise. The State is vested with the power to take real property for public use, but must compensate the owner appropriately. Const, art. I, § 16. Similarly, “[p]olice power is inherent in the state by virtue of its granted sovereignty.” Mfr’d Hous., 142 Wn.2d at 354. The State is vested with the power to regulate for the health, safety, morals, and general welfare, and the burdens imposed incidental to such regulations are not takings unless the burdens manifest in certain, enumerated ways. See Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993) (articulating analytical framework for evaluating substantive due process, per se and regulatory takings claims); Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (articulating requirements for federal regulatory takings); cf. Mugler v. Kansas, 123 U.S. 623, 668-69, 8 S. Ct. 273, 31 L. Ed. 205 (1887) (giving historical view).

Police power and the power of eminent domain are essential and distinct powers of government. Mfr’d Hous., 142 Wn.2d at 354; State ex rel. Long v. Superior Court, 80 Wash. 417, 419, 141 P. 906 (1914); see generally William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 553-63 (1972). Courts have long looked behind labels to determine whether a particular exercise of power was properly characterized as police power or eminent domain.⁶ See, e.g., Conger, 116 Wash. 27. But clearly, not every government action that takes, damages, or destroys property is a taking. “Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.” Conger, 116 Wash, at 36 (emphasis added). The gathering and preserving of evidence is a police power function, necessary for the safety and general welfare of society. Cf. Conger, 116 Wash, at 36.

Our constitution provides: Const, art. I, § 16. The words of the constitution are interpreted as they would have been commonly understood at the time the constitution was ratified. State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945). Based on the principles underlying our jurisprudence and evidence from an 1886 Oregon Supreme Court case, we conclude that in 1889, the production of evidence or testimony would not have been considered a taking.

Eminent Domain. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use.

In 1886, the Oregon Supreme Court determined that their takings clause (which included a prohibition on claiming the “particular services” of any man) did not require the state to compensate a witness for his testimony. Daly v. Multnomah County, 14 Or. 20, 12 P. 11 (1886). The Oregon court found the duty to provide testimony inherent in citizenship and concluded that duty was categorically distinct from any right to receive compensation under the takings clause. Daly, 14 Or. at 21 (quoting Israel v. State, 8 Ind. 423, 424 (1857)); accord Blair v. United States, 250 U.S. 273, 281, 39 S. Ct. 468, 63 L. Ed. 979 (1919). The same principle applies to the production of evidence. Petitioner has not demonstrated that in 1889, the citizens of Washington would have understood the principles underlying police power and takings significantly differently from the way they were understood by our Oregon neighbors. Therefore we conclude that in 1889, the duty to provide evidence would have not have given rise to a compensable taking.

Article I, section 16 requires prior compensation. It would be administratively awkward (and constitutionally unlikely) to require prior compensation for the destruction of property by police while apprehending a suspect or executing a search warrant. This is further evidence that article I, section 16 did not, in 1889 (or 1920 when it was amended), reach such claims. Further, the Washington State Constitution specifically states “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law,” clearly evincing that from the beginning of our history the state has had the power to invade homes with the authority of law. Const, art. I, § 7 (emphasis added). Our state constitution does not provide for compensation for an article I, section 7 search, providing more evidence that the takings clause would not originally have been understood to cover this sort of claim.⁷

While this is a case of first impression in Washington, several of our sister states have already wrestled with it. After a careful survey, we are aware of no case that holds or even supports the proposition that the seizure or preservation of evidence can be a taking. Again, Oregon has considered the issue and declined to find a cognizable taking under its state constitution when evidence is substantially destroyed during a criminal investigation and prosecution. Emery v. Oregon, 297 Or. 755, 688 P.2d 72 (1984).

Emery considered the takings claim of a criminal defendant and his mother, co-owners of a pickup truck that was the site of a murder. Emery, 297 Or. at 757. As part of the investigation and prosecution of that murder, the truck was seized and dismantled. Id. It was returned to the defendant—still dismantled. Id. The Oregon Supreme Court found no taking. It ruled:

“If a person, by virtue of his very existence in civilized society, owes a duty to the community to disclose for the purposes of justice all that is in his control which can serve the ascertainment of the truth, this duty includes not only mental impressions preserved in his brain and the documents preserved in his hands, but also . . . the chattels and premises within his control. There can be no discrimination. . . .

“Apart from specific privileges,* * *, a person is bound, if required to furnish . . . his premises to the inspection of the tribunal or its duly delegated officers, and to do or exhibit any other thing which may in any form furnish evidence.”

Emery, 297 Or. at 765-66 (footnote omitted) (quoting 8 John Henry Wigmore, Evidence § 2194, at 76 (John T. McNaughton rev. ed. 1961)). Accord Alaska Dep’t of Natural Res. v. Arctic Slope Reg’l Corp., 834 P.2d 134 (Alaska 1991) (no takings to require disclosure of a secret oil database); McCambridge v. City of Little Rock, 298 Ark. 219, 227-28, 766 S.W.2d 909 (1989) (seizure of evidence not a takings); McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966) (no takings to drain a pond to look for a body); cf. City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo. 1992) (no takings to seize truck for failure to display proper identification). Under the Oregon approach, no takings could arise from the execution of the warrant or preservation order. Nor could a takings be found in property damage caused by the investigation.

Similarly, the New Hampshire Supreme Court considered and rejected a claim that an order blocking the repair of an apartment during an arson trial was a taking. Soucy v. New Hampshire, 127 N.H. 451, 452, 506 A.2d 288 (1985) (Souter, J., writing). It also relied on Wigmore:

“For more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man’s evidence.”

“[i]t may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He who will live by society must let society live by him, when it requires to.”

Soucy, 127 N.H. at 455-56 (citations omitted) (quoting 8 Wigmore, supra, § 2192, at 70, 72). While the New Hampshire Supreme Court found no takings, it was sympathetic, as are we, to the burden imposed on the property owner. The court counseled that a “property owner’s remedy lies ... in this court’s authority to entertain a request for prospective review of such an order in any apparently egregious case.” Soucy, 127 N.H. at 458. We agree. But we find no takings under the state constitution based on the seizure and preservation of evidence.

A harder question is whether the destruction of property by police activity other than collecting evidence pursuant to a warrant could ever be a compensable taking. Courts considering this issue are divided. See generally David M. Neuenhaus, State Constitutional Takings Jurisprudence, 24 Rutgers L.J. 1352 (1992) (collecting cases). In Customer Co. v. City of Sacramento, 10 Cal. 4th 368, 895 P.2d 900 (1995), the California Supreme Court rejected a claim that property destruction during the course of apprehending a suspect could be a taking under the California Constitution.⁸ Id. at 370. After an exhaustive survey of the history and development of takings, the court concluded that the takings clause was never “applied in a literal manner, without regard to the history or intent of the provision . . . [and was not] intended, and never has been interpreted, to impose a constitutional obligation upon the government to pay ‘just compensation’ whenever a governmental employee commits an act that causes loss of private property.” Id. at 378. Accord Kelley v. Story County Sheriff, 611 N.W.2d 475, 477 (Iowa 2000) (valid exercise of police power and not a compensable takings to break down doors of an innocent property owner to serve a warrant).

The three states that have found a taking in the destruction of property by police during an arrest have rested on fairness and the continued blurring of police power and eminent domain.⁹ The first state to find a potential cause of action under somewhat analogous circumstances was Texas. Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980).¹⁰ Texas police had burned down an innocent person’s home to eject suspects. Id. at 788. The Texas Supreme Court found that this was not inverse condemnation, but was nonetheless a taking. Id. at 789. “Recent decisions by this court have broadly applied the underlying rationale to takings by refusing to differentiate between an exercise of police power, which excused compensation, and eminent domain, which required compensation.” Id. (emphasis added).

The Minnesota Supreme Court relied on this holding in a similar case. See Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38 (Minn. 1991).¹¹ Police had used tear gas and grenades to drive a suspect from an innocent person’s home, wreaking extensive damage. Id. at 39. The Minnesota high court found a cognizable takings claim. Id. Minnesota found its takings clause was designed to prevent burdens society should bear from being forced onto specific individuals, and not restricted to eminent domain. Id. at 39, 41-42; accord Wallace v. City of Atlantic City, 257 N.J. Super. 404, 608 A.2d 480 (Law Div. 1992).

A clear split on clear grounds exists. Those courts rejecting takings claims based on police destruction of property have relied on the original understanding of the constitutions and the continuing vitality of the separate doctrines of eminent domain and police power. The courts that have found takings have been justifiably outraged by the destruction of real property owned by third parties utterly unconnected with the alleged crime. While we too feel the pull of the justness of the cause, the vehicle is not article I, section 16. We decline to abandon the framework established by our constitution. Accord Brunn, 22 Wn.2d at 139. The proper apportionment of the burdens and benefits of public life are best addressed to the legislature, absent a violation of a right held by an individual seeking redress under the appropriate vehicle.

We turn briefly to the federal case law on point. The United States Supreme Court has admonished that the takings clause must be read against the historical background of rights and obligations. “ ‘[A]s long recognized, some values are enjoyed under an implied limitation and must yield to the police power.’ ” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 112 S. Ct. 2886,120 L. Ed. 2d 798 (1992) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S. Ct. 158, 67 L. Ed. 322 (1922)). The federal courts have considered the question of whether the seizure of evidence is a taking under federal constitutional law, and it appears to us that they would not find the injury to Mrs. Eggleston to be a takings.

The leading case is Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973). In that case, material witnesses were jailed to assure their appearance in a criminal trial. The detained witnesses brought suit for compensation under the Fifth Amendment, alleging that their property interest in their own time and liberty had been taken. Hurtado, 410 U.S. at 579. The United States Supreme Court ruled that every person has a duty to provide evidence, and the Fifth Amendment does not require the government pay for the performance of a public duty already owed:

It is beyond dispute that there is in fact a public obligation to provide evidence and that this obligation persists no matter how financially burdensome it may be. “ . . . [T]he giving of testimony and the attendance upon court... in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform. . . and for the performance of which he is entitled to no farther compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States, 250 U.S. 273, 281 [, 39 S. Ct. 468, 63 L. Ed. 979 (1919)].

Hurtado, 410 U.S. at 589 (footnote and citations omitted); accord United States v. Friedman, 532 F.2d 928 (3d Cir. 1976).

Similarly, the Fifth Circuit found no takings in the seizure of evidence. The widow of Lee Harvey Oswald sought to recover the value of items of personal property seized in the investigation of President John F. Kennedy’s assassination. Porter v. United States, 473 F.2d 1329 (5th Cir. 1973). Subsequent to the seizure of the evidence, Congress enacted legislation to appropriate the items and to pay fair compensation. The parties did not dispute that there had been a taking; the primary issue was when the taking took place, since the value of the evidence changed during the course of the investigation. The Fifth Circuit rejected the argument that the takings occurred when the evidence was seized. Id. at 1335. Instead, it ruled that the takings occurred when the government declared its intent to acquire the property for its own. Id. at 1336. “Up until then the government might very well have returned that which it had seized . . . .” Id. Under Porter, merely holding evidence during an investigation does not constitute a taking.

When law enforcement exceeds its lawful powers, the injured have a right to redress. But if this occurred that October day, there are other, more suitable, remedies available. Extending takings to cover this alleged deprivation of rights would do significant injury to our constitutional system. We stress we do not examine the applicability of substantive or procedural due process, the fourth, fifth, or fourteenth amendments to the United States Constitution, Washington Constitution article I, section 7, arbitrary and capricious government action, outrage, trespass, 42 U.S.C. § 1983, or any other cause of action that might be brought. It may be that all would fail. We also stress that we have not been asked to review or limit the preservation order to ease the burden on Mrs. Eggleston. We instruct courts below that such orders must be as unobtrusive and as bearable as possible. See, e.g., Soucy, 127 N.H. at 458; accord United States v. Columbia Broad. Sys., 666 F.2d 364, 371-72 (9th Cir. 1982) (recognizing equitable power in civil cases to allocate cost of discovery for nonparty witnesses to demanding party); Feigin v. Colo. Nat’l Bank, N.A., 897 P.2d 814, 820 (Colo. 1995) (recognizing the court’s equitable power to moderate subpoena that is unreasonable or oppressive).

Summary judgment is affirmed.

Johnson, Madsen, Bridge, and Owens, JJ., and Smith, J. Pro Tem., concur.

1 Brian Eggleston challenged the constitutionality of this search in his criminal trial, and Mrs. Eggleston challenges it separately in federal court. See State v. Eggleston, noted at 108 Wn. App. 1011, 2001 WL 1077846, at **13-14; Eggleston v. Pierce County, 99 F. Supp. 2d 1280 (W.D. Wash. 2000) (stayed federal court proceeding). The Court of Appeals noted that the October 16, 1995 search was warrantless, but ruled that any evidence that would have been discovered under the original drug warrant would be admissible. Eggleston, 2001 WL 1077846, at *14. The reasonableness of the search is not before us.

2 The order recites:

THIS MATTER having come on regularly before the above-entitled court upon the motion of defendant to prevent the State of Washington from attempting to obtain a search warrant to enter the crime scene and/or to seize evidence therefore; and upon the motion of the State of Washington, plaintiff herein, to require the defense to preserve the crime scene intact and to refrain from destruction of any items of possible evidentiary value pending further order of this Court; and the court being familiar with the records and files herein, having heard argument of counsel, and being of the opinion that such an Order should issue, and having verbally entered these orders on June 13, 1996; it is hereby

ORDERED, ADJUDGED AND DECREED that the plaintiff, State of Washington, shall not apply for or obtain a search warrant to enter the crime scene or to seize evidence from said crime scene; it is further

ORDERED, ADJUDGED AND DECREED that the defense, and any person acting on behalf of the defendant, is hereby restrained and prohibited from destroying any item of possible evidentiary value which is related to the incident which gave rise to the charges herein; and the defense is hereby ordered to preserve the scene which is the location of the acts which gave rise to the charges herein in its entirety and to prevent any individual from destroying any item of potential evidentiary value from said scene.

CP at 126-27 (Order Requiring Preservation of Scene & Prohibiting Search Warrant).

3 The federal district court found it an inappropriate breach of comity to reach the claims based on the Fourth Amendment until Brian Eggleston’s criminal trial and appeal were concluded. Eggleston, 99 F. Supp. 2d at 1282. This determination was upheld by the Ninth Circuit Court of Appeals in an unpublished opinion. The court also found it inappropriate to reach the federal takings claim until our state courts had an opportunity to consider the issue under our own constitution. Id. Mrs. Eggleston is, of course, free to pursue her federal claims in federal court as they ripen and as comity concerns fade.

4 This case is here on summary judgment, presenting only questions of law. Review is de novo. Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).

5 Further, a satisfactory Gunwall analysis was provided by an amicus, and we find that the threshold function Gunwall performs is less necessary when we have already established a state constitutional provision provides more protection than its federal counterpart. Accord State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998).

6 We recognize “police power” has been used elastically and imprecisely since adoption of our constitution in 1889. See, e.g., Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495 (2000). Therefore, for the purpose of our taking analysis the term must be understood in the more limited sense as it was then, not necessarily now. Moreover, we also recognize even a legitimate exercise of police power, as those terms were understood in 1889, may also result in a compensable taking where the regulation goes “too far.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922).

7 The parties do not address the relevance, if any, of the judiciary’s independent constitutional authority to enter preservation orders or search and arrest warrants. Clearly, the judiciary cannot exercise eminent domain and may rearrange property rights in accordance with law without it being a taking of property. See Wash. Const. art. IV; State v. Fields, 85 Wn.2d 126, 530 P.2d 284 (1975); RCW 2.04.190 (“The supreme court shall have the power to prescribe . .. [the process] of taking and obtaining evidence ... .”).

8 The California Constitution says in part: “Private property may be taken or damaged for public use only when just compensation .. . has first been paid.” Cal. Const, art. I, § 19. The California Supreme Court’s opinion is especially important to our analysis since because its takings clause was a model for our own. Robert P. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 30 (2002).

9 See generally Arvo Van Alstyne, Inverse Condemnation: Unintended Physical Damage, 20 Hastings L.J. 431 (1969); Arvo Van Alstyne, Statutory Modification of Inverse Condemnation: Deliberately Inflicted Injury or Destruction, 20 Stan. L. Rev. 617 (1968); Louise A. Halper, Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings, 8 Yale J.L. & Human. 31 (1996); Glynn S. Lunney, Jr., Article, A Critical Reexamination of the Takings Jurisprudence, 90 Mich. L. Rev. 1892 (1992); C. Wayne Owen, Jr., Everyone Benefits, Everyone Pays: Does the Fifth Amendment Mandate Compensation When Property is Damaged During the Course of Police Activities?, 9 Wm. & Mary Bill Rts. J. 277 (2000); Frank J. Wozniak, Annotation, Right to Compensation for Real Property Damaged by Law Enforcement Personnel in Course of Apprehending Suspect, 23 A.L.R.5th 834 (1994).

10 The Texas constitution provides in relevant part: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.” Tkx. Const, art. I, § 17.

11 Minn. Const, art. I, § 13 reads: “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.”