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Federal Court Says Destroying Someone's House To Apprehend A Fugitive Might Be A Constitutional Violation

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Law enforcement has a pretty cavalier attitude towards private property. Whatever property they aren't unjustifiably seizing from drivers and passengers, they're razing to the ground. Sometimes they destroy whole houses during plain vanilla warrant service. Other times, situations are determined to be stand-offs in need of wholesale destruction, even when officers are facing down an empty house.You'd think this sort of brazen and unjustified destruction would result in successful lawsuits to recover costs and damages incurred by these actions. But you'd be wrong. A successful lawsuit for law enforcement destruction of private property is more rare than a successful lawsuit over property seized via asset forfeiture.Courts tend to defer to law enforcement expertise, often opining that this collateral damage is just an unfortunate side effect of good police work. Officers are free to overcome any obstacles placed in the way of their objectives, and if that means entire walls of houses need to be destroyed, that's just the way it is. Who are we (this is the judges speaking) to second-guess decisions made in the heat of the moment, even when said moment is a daylong "standoff."Two Appeals Courts have issued precedential decisions that affect two entire circuits (the Ninth and Tenth), which make lawsuits brought in those jurisdictions even more unlikely to prevail. But a recent lawsuit -- featuring representation by the Institute for Justice (which has also had success fighting bogus forfeitures) -- has just experienced some limited success. It was brought by a woman whose residence was the victim of an overzealous Texas SWAT team that apparently felt the only way it could apprehend a suspect was by causing more than $50,000 of damage to her home.It's not like the McKinney PD didn't have options. Vicki Baker, the plaintiff, gave them plenty, as Billy Binion reports for Reason.

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker's home in McKinney, Texas. Baker's daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker's fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.
Baker's insurance company said it wasn't liable for damages caused by the government. The government -- in this case, the city of McKinney -- said it wasn't liable because she wasn't a victim of anything. The police had a legitimate reason to destroy her house (the apprehension of a fugitive). Sorry, but not anyone's fault, the city shrugged.Baker sued. And a federal court has come down on her side. It very plausibly is the city's problem and it can be held liable for the unnecessary destruction of this home, says the court [PDF].
Because at this stage the Court construes all well-pleaded facts in the light most favorable to Plaintiff, the Court finds Baker has plausibly alleged an official policy promulgated by the City of McKinney. As alleged in the Complaint, after the City’s destruction of her property, Baker requested compensation from the City of McKinney, but the City denied the request, stating that there was ‘no liability on the part of the City or any of its employees.’” This assertion is sufficient to plausibly allege a “a single unconstitutional action by a municipal actor”— that is, a denial of the constitutionally mandated just compensation following a taking by the government.
As the court notes, this isn't the end of the discussion. As it points out earlier, there exists no precedent in its jurisdiction or in the Fifth Circuit saying the Takings Clause of the Fifth Amendment applies to incidents like these. But rather than use that lack of precedent as a means to dismiss her suit, it comes to the conclusion that destroying a home (and refusing to compensate the innocent homeowner) is a Fifth Amendment violation.
The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances.[...]However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking… In Lucas v. S.C. Coastal Council, the Supreme Court opined that 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.”
This federal court decides that sort of buck-passing stops here, at least for the time being. Not every claim is a valid Takings Clause claim, but this one appears to be at this point.
While the Court acknowledges that governmental bodies are not “liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]” Nat’l Bd. of Young Men’s Christian Ass’ns v United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City’s refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.
That's good enough to avoid dismissal. The same goes for the state law claims under the Texas constitution.
Baker pleaded that her home was intentionally destroyed in the government’s effort to apprehend Little. The affirmative actions Baker alleges include Department officers: (1) storming the house; (2) breaking windows; (3) knocking down the garage door; (4) knocking down the backyard fence; and (5) firing dozens of explosive tear gas cannisters into the home. Such actions were intentional, even if the City’s motives were to secure a threat to public safety. To be sure, the City itself indicates “the [Department] dr[ew] up plans” before busting into Baker’s home to apprehend Little. The resulting damage, therefore, can hardly be considered “incidental consequence[s] of the City’s actions.” Lastly, Baker alleges the City took her property for a public use—apprehension of a dangerous fugitive whose freedom threatened the community and public as a whole.Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.
This doesn't mean the city of McKinney can't still find a way to screw this homeowner. But this does definitely make it more difficult to escape the lawsuit. And that extra degree of difficulty may be all it takes for the city to cut a check. To push it further might mean setting precedent at a higher level that would make cities and law enforcement agencies liable for excessive damage to private property. And that's precedent no law enforcement agency in the nation is in any hurry to see set.

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posted at: 12:00am on 22-Dec-2021
path: /Policy | permalink | edit (requires password)

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Details Leak On Apple's Secret $275 Billion Deal With The Chinese Government

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More troubling news has surfaced about Apple's and China's relationship. Apple relies on Chinese manufacturing to make its phones and the Chinese government relies on its massive amount of power to leverage deals that allow it to achieve its ends, many of which are oppressive.An exclusive report by The Information (paywalled) details a $275 billion deal Apple struck with the Chinese government, apparently in hopes of exempting the company from new regulations that would have negatively affected its products and services. That deal was signed in 2016 and apparently includes an option for a sixth year, which would extend it through 2022.Here's what appears to have been the end result of this deal, which required Apple to invest heavily in China and work with the government to develop new technologies and cultivate Chinese tech talent. The South China Morning Post notes Apple is now back on top of the Chinese phone sales charts.

In October, Apple regained its title as the largest smartphone brand in China by shipments, its first time at the top of the list since December 2015, according to Counterpoint. Sales grew 46 per cent that month compared with the previous month, while the overall smartphone market grew just 2 per cent.
There's something in it for China as well.
China has also become more important to Apple’s supply chain. The company has added more suppliers from mainland China to its list of vendors than anywhere else from 2017 to 2020, according the Apple’s supplier list for the period. Mainland Chinese companies make up nearly a third of newly-listed companies.
The Chinese government also asked for -- and apparently received -- some smaller, much stranger concessions from Apple, as Richard Lawler reports for The Verge.
That includes a request Apple reportedly received in 2014 or 2015 about a small group of uninhabited islands that China and Japan apparently have a dispute over in terms of who owns them. Going by either the Senkaku Islands or the Diaoyu Islands, depending on which side of the argument you’re taking, they inspired a request from China to members of the Maps team to make them appear larger, even when viewers are zoomed out on the map. According to The Information, not only did Apple eventually make the change, but even today, for viewers using its map from within China, the islands are still shown at a larger scale than the territories around them.
Weird flex by the Chinese government. But the government has plenty of weird flexes. More concerning is whatever concessions were made to allow the Chinese government to more directly control iPhone users in the country. Apple has already made several concessions, including erecting local data centers that can be easily accessed by the government. It has also removed content deemed unlawful or offensive by the Chinese government, some of which has been directly related to the government's ongoing repression of its Muslim minority.For Apple, this is a problem of both supply and demand. Apple obviously wants to be able to sell its products to the large Chinese market. But it's pretty difficult to obtain much leverage when you're also reliant on this market to manufacture the same devices you want to sell to this market.Despite that lack of leverage, Apple has still secured some minor wins, as Samuel Axon points out at Ars Technica.
Encryption keys for iCloud user data for the region are controlled by Apple, despite the government's efforts to encourage, pressure, or force foreign companies to hand over responsibility for that data to Chinese companies.
Still, the deal with the Chinese government suggests the country will continue to have the upper hand in negotiations. Apple may be investing in its future, but it's pouring money into a regime that has continually expanded its power and escalated its oppressive activities against its own people. Apple's money will fund these activities, even if only indirectly. Striking a secret deal worth hundreds of billions of dollars with an authoritarian government is never a good look.Apple hasn't said much about this report. The Chinese government, however, has reacted (via its state-owned press) and that reaction is bizarre, to say the least.
A commentary published on the WeChat blog Buyidao, operated by the state-run tabloid Global Times, defended the investments. The attack on Apple’s ties to China are “clearly driven by the ‘political correctness’ of Sinophobia”, according to the article.“Forcing American companies to decouple from China is forcing them to decouple from opportunities and gains,” the article reads. “This is as good as McCarthyism for business.”
Huh. Well, that's a take. The Chinese government has shown repeatedly it cannot and should not be trusted, that it's an abuser of its considerable power. It's possible to question deals struck with an oppressive regime without engaging in Sinophobia. This isn't about the Chinese people or their way of life. It's about a government that disappears unwanted residents into prisons, threatens government critics with death sentences, and reacts with hostile indignation any time its narrative and claims are questioned. Pulling out of China isn't McCarthyism. It's simply a refusal to cater to the whims of a government that is its own population's primary antagonist.There's nothing inherently wrong with striking deals with foreign governments to ensure steady supply chain operations or expand customer bases. But striking a deal of this size with a government that expects its foreign partners to assist it in the oppression of its constituents is cause for concern.

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posted at: 12:00am on 22-Dec-2021
path: /Policy | permalink | edit (requires password)

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