Cindi Ross Scoppe

Should you have to pay if police destroy your home to protect others?

IMAGINE SOMEONE breaks into your house and takes your babysitter hostage. The police try to talk him into letting her go, but he won’t budge. After 12 hours of fruitless efforts, they drive a bulldozer through your front door in order to free her and capture her captor.

Of course you’re relieved she got out of that situation alive, but your home is damaged so badly that the city condemns it, so you have lost your most valuable possession. Through no fault of your own. And no one is reimbursing you: Not your insurance company. Not the police or the city. No one.

This is not another one of my crazy analogies, dreamed up in an attempt to make complex public policy questions more understandable. This is very nearly what actually happened in Spartanburg in 2004. The only difference is that the hostage incident took place in a convenience store.

The store’s insurance company said it wasn’t responsible, because the policy excluded damage caused by a governmental entity, which apparently is a fairly common feature in insurance policies. (Note to self: Start reading those insurance policies a little more closely.)

So Carolina Convenience Stores sued, saying the city had engaged in an “inverse condemnation” — that is, that the police had “taken” the property for the public good — and was therefore constitutionally required to compensate the property owner. And earlier this year, a divided state Supreme Court rejected that argument, saying Spartanburg wasn’t responsible for destroying the store because, well, because the law doesn’t say it’s responsible.

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Read the Supreme Court order

Justices: No reimbursement needed when cops damage property

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Now as a matter of right and wrong, Spartanburg is clearly wrong. Just because the law doesn’t require you to do something doesn’t mean you shouldn’t do it. When you destroy the property of someone who did nothing to provoke that destruction, you ought to pay for it, whether you’re an individual, a business or a city. I thought that was something we all understood.

As a constitutional question — and that’s what came before the Supreme Court — it’s a bit more complicated. The three-justice majority made a big deal about the fact that the police’s actions were justified — and I doubt anyone would argue with that, except maybe the hostage-taker, who is serving a life sentence. The justices then concluded without much explanation that “the South Carolina Constitution does not contemplate that damage occasioned to private property by law enforcement in the course of performing their duties constitutes a compensable taking.” Chief Justice Costa Pleicones went on to explain that “the framers of the (S.C.) Constitution did not intend that law enforcement operate under the fear that their actions could lead to a takings-based liability.”

It seems to me that police officers’ fear of liability is as much a red herring as the fear expressed by property-rights advocates that the ruling will unleash an avalanche of police recklessness because, as The Associated Press quoted one advocate as saying, “police officers have been boosted now to destroy private property on purpose and pay nothing for it.”

More to the point, Associate Justices Kaye Hearn and John Kittredge made a strong case that the constitutional right to compensation when government deprives you of the use of your property applies … whenever government deprives you of the use of your property without you having done anything wrong.

As Justice Hearn wrote, decisions about takings have “never turned on whether the government’s actions were justified.” The whole idea behind takings protections, she explained, is that individuals should not have to bear the cost of government actions that benefit us all — in this case, arresting a kidnapper. The protection, she wrote, “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.”

But as I’ve written before, it really doesn’t matter whether a supreme court is right or wrong when it declares what the constitution requires, because the constitution requires what a supreme court says it requires, until either the constitution or the court’s opinion changes.

Fortunately, the story doesn’t have to end there. The Legislature is free to write a law that requires governmental entities to reimburse you if they destroy your property without you having done anything to deserve that destruction. It’s free to write a law that applies whether the destroying entity is a police department or the Transportation Department or the Commerce Department or any other government entity. And it should.

What happened in Spartanburg was, as Justice Kittredge writes in his dissent, a “rare situation of a wholly innocent property owner whose property was destroyed by the actions of law enforcement.” But it did happen, and it could happen again, and the court has decided that our constitution does not require compensation.

As a matter of right and wrong, that’s not what the policy of the state ought to be. So the policy of the state needs to be changed to reflect not just what our rights are, but what is right.

Ms. Scoppe writes editorials and columns for The State. Reach her at (803) 771-8571 or at cscoppe@thestate.com or follow her on Twitter or like her on Facebook @CindiScoppe.

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