Baker v. City of McKinney, Texas

Filing 23

MEMORANDUM OPINION AND ORDER denying 6 MOTION to Dismiss Under Rule 12(b)(1) and Rule 12(b)(6) filed by City of McKinney, Texas. Signed by District Judge Amos L. Mazzant, III on 11/18/2021. (mem)

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United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

VICKI BAKER,

§
§
§
§
§
§
§
§
§

Plaintiff,
v.
CITY OF MCKINNEY, TEXAS,
Defendant.

CIVIL ACTION NO. 4:21-CV-00176
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant City of McKinney’s Rule 12(b)(1) and Rule
12(b)(6) Motion to Dismiss (Dkt. #6). Having considered the motion and the relevant pleadings,
the Court finds that Defendant’s motion should be DENIED.
BACKGROUND
This case arises from the uncompensated damages to Vicki Baker’s (“Baker”) home
following the City of McKinney Police Department’s (the “Department”) standoff with an armed
fugitive. To provide necessary context regarding the nature of this lawsuit, the Court lays out the
pertinent facts, which are essentially undisputed.
On July 25, 2020, Baker’s daughter, Deanna Cook (“Cook”), called the Department from
a public location to report that an armed fugitive, later identified as Wesley Little (“Little”), had
entered Baker’s house with a teenage girl and had requested to hide his car in the garage. 1 When
Department officers arrived at Cook’s location, Cook provided the officers both the code to enter

Baker was residing in Montana at the time of the occurrence, and Cook was preparing Baker’s home in McKinney
for sale.
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the house and the garage door opener. Department officers then went to Baker’s home where Little
remained in hiding with the teenage girl.
Upon arrival, Department officers surrounded the house and attempted to negotiate with
Little. Little released the fifteen-year-old girl unharmed, but the girl informed Department officers
that Little possessed seven firearms and that he refused to leave the house alive.
Following unsuccessful negotiations, Department officers then attempted to draw Little out
of the house through several forceful tactics, including the use of tear gas. Despite the
Department’s efforts, Little would not leave the home. Department officers then forcefully entered
the home by breaking down both the front and garage door and running over the backyard fence
with a tank-like vehicle known as a BearCat. Upon entry, Department officers found Little had
taken his own life.
On March 3, 2021, Baker filed suit against the City of McKinney (the “City”) for violations
of the Takings Clauses of both the United States and Texas Constitutions. Baker alleges that
extensive damage to her house resulted from the Department’s standoff with Little. Specifically,
Baker claims that: (1) every window needed replacing; (2) the house had to be cleaned by a hazmat
remediation team due to the tear gas; (3) various appliances were destroyed; (4) the front and
garage door needed replacing (5) tear gas cannisters had destroyed parts of the drywall; and (6)
carpets, blinds, and ceiling fans needed replacing.
On April 14, 2021, the City filed the present motion (Dkt. #6). On April 28, 2021, Baker
filed a response (Dkt. #9). On May 5, 2021, the City filed a reply (Dkt. #10). On June 21, 2021,
Baker filed a Notice of Supplemental Authority (Dkt. #14). On June 25, 2021, the City filed a
Response to [Baker’s] Supplemental Authority (Dkt. #16).

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I.

12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a case for lack of subject

matter jurisdiction when the district court has neither statutory nor constitutional power to
adjudicate the case. Home Builders Ass’n of Miss. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998). If a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court
will consider the jurisdictional attack under Rule 12(b)(1) before addressing any attack on the legal
merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
In deciding the motion, the Court may consider “(1) the complaint alone; (2) the complaint
supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the [C]ourt’s resolution of disputed facts.” Lane v. Halliburton, 529 F.3d
548, 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996)). The Court will accept as true all well-pleaded allegations set forth in the complaint and
construe those allegations in the light most favorable to the plaintiff. Truman v. United States, 26
F.3d 592, 594 (5th Cir. 1994). Once a defendant files a motion to dismiss under Rule 12(b)(1) and
challenges jurisdiction, the party invoking jurisdiction has the burden to establish subject matter
jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
ANALYSIS
The City asks the Court to dismiss Baker’s claims for lack of subject matter jurisdiction
under 28 U.S.C. § 1331 and 28 U.S.C. § 1367 (Dkt. #6 at p. 8). The City argues “[t]he Complaint
fails to establish the existence of a federal question” (Dkt. #6 at p. 10). Specifically, the City
contends “[t]here is no federal court decision at either the United States Supreme Court or in the
federal Courts of Appeals which has recognized such a cause of action establishing Baker’s claims

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as one asserting a federal question under the Fifth or Fourteenth Amendments” (Dkt. #6 at p. 11).
Further, the City asserts that “[t]he Complaint fails to establish supplemental jurisdiction” over
Baker’s state law claim (Dkt. #6 at p. 16).
Baker’s response does not specifically address subject matter jurisdiction. Rather, Baker
premises the Court’s retention of the case on the plausibility of her takings claims under both
federal and Texas law.
After considering both the motion and the response, it is clear the City conflates the
appropriate Rule 12(b)(1) and Rule 12(b)(6) analyses and, accordingly, rendered Baker responsible
for responding to the 12(b)(1) argument with the 12(b)(6) plausibility analysis. Because “whether
the court lacks subject matter jurisdiction and whether the plaintiff fails to state a claim on which
relief can be granted are distinct questions[,]” Emp. Ins. of Wausau v. Suwannee River Spa Lines,
Inc., 866 F.2d 752, 759 (5th Cir. 1989), the plausibility and viability of Baker’s claims become
relevant only upon a finding of subject matter jurisdiction. In other terms, “courts should analyze
their own authority to hear a case as a separate matter from whether that case involves a viable
claim.” In re KSRP, Ltd., 809 F.3d 263, 267 (5th Cir. 2015). Therefore, “a complaint that alleges
the existence of a federal question establishes jurisdiction, even though the court ultimately decides
that the plaintiff’s federal rights were not violated.” Mobil Oil Corp. v. Kelley, 493 F.2d 784, 786
(5th Cir. 1974) (citations omitted).
A. Original Subject Matter Jurisdiction
Under the appropriate analysis, the City’s argument that this Court lacks federal question
jurisdiction to hear a Fifth Amendment takings claim is meritless in all aspects. Baker invokes the
Court’s federal question jurisdiction under 28 U.S.C. § 1331, which provides that “[t]he district
courts shall have original jurisdiction of all civil actions arising under the Constitution . . . of the

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United States.” 28 U.S.C. § 1331. Baker brings a federal takings claim under the Just
Compensation Clause of the Fifth Amendment to the United States Constitution, made binding on
the States through the Fourteenth Amendment. See San Diego Gas & Elec. Co. v. City of San
Diego, 450 U.S. 621, 623 n.1 (1981) (“The Fifth Amendment’s prohibition applies against the
States through the Fourteenth Amendment.”). Thus, under the plain language of § 1331, a federal
cause of action exists on the face of Baker’s Complaint. See 28 U.S.C. § 1331.
Recent Supreme Court precedent further bolsters this determination. In Knick v. Township
of Scott, Pa., the Court held “a government violates the Takings Clause when it takes property
without compensation, and that property owner may bring a Fifth Amendment claim under § 1983
at that time.” 139 S. Ct. 2162, 2177 (2019). Baker did exactly this—upon the City’s refusal to
compensate her for damages arising from the Department’s standoff with Little, she filed a § 1983
action.
The City asserts that neither the Supreme Court nor a single Court of Appeals has
recognized this cause of action “as one asserting federal question under the Fifth or Fourteenth
Amendments.” (Dkt. #6 at p. 11). Not so. Rather, neither the Supreme Court nor any federal
appellate court in the country has dismissed a claim of this type for the district court’s lack of
federal question jurisdiction. This includes the courts presiding over certain cases the City cites in
support of its erroneous assertion. See, e.g., Johnson v. Manitowoc Cnty., 635 F.3d 331 (7th Cir.
2011) (addressing the case on the merits); Lech v. Jackson, 791 F. App’x. 711 (10th Cir. 2019)
(same); Knick, 139 S. Ct. 2162 (same); John Corp. v. City of Hous., 214 F.3d 573 (5th Cir. 2000)
(same); Yawn v. Dorchester Cnty., 1 F.4th 191 (4th Cir. 2021) (same).
Because Baker’s likelihood of recovery on her claim is not a proper consideration when
assessing subject matter jurisdiction, the City’s argument that the Court lacks subject matter

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jurisdiction due to Baker’s inability to prevail is unavailing. Such an argument belongs in a
12(b)(6), merit-based analysis.
In accordance with the foregoing, the Court finds it has original jurisdiction over Baker’s
Fifth Amendment takings claim. However, Baker also asserts a taking in violation of the Texas
Constitution. The Court must therefore determine whether it may exercise jurisdiction over
Baker’s claim for a taking in violation of the Texas Constitution—a state law claim over which
the Court does not have original jurisdiction. 2
B. Supplemental Jurisdiction
28 U.S.C. § 1367 governs supplemental jurisdiction. Under § 1367(a):
[I]n any civil action of which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). 3 “The question under section 1367(a) is whether the supplemental claims are
so related to the original claims that they form part of the same case or controversy, or in other
words, that they ‘derive from a common nucleus of operative fact.’” Mendoza v. Murphy, 532 F.3d
342, 346 (5th Cir. 2008) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).
The City’s supplemental jurisdiction argument is premised on the Court’s dismissal of
Baker’s federal cause of action. Because the Court does not dismiss Baker’s federal claim, the
Court finds it unnecessary to address § 1367(a) supplemental jurisdiction in detail. Briefly, in this
case “both the federal and state claims on the face of the pleadings concern the same core factual
issue:” the uncompensated damage to Baker’s home following a standoff between the Department

The parties do not dispute that diversity jurisdiction under 28 U.S.C. § 1332 is unavailable, as Baker seeks an amount
below the requisite $75,000 amount in controversy. Thus, absent supplemental jurisdiction under 28 U.S.C. § 1367,
the Court cannot hear Baker’s state law claim.

2

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and an armed fugitive. Id. As such, “[t]he claims are sufficiently related for purposes of section
1367(a)[,]” and the Court may exercise supplemental jurisdiction over Baker’s state law takings
claim. Id. 4
Accordingly, the Court finds it both can and should exercise jurisdiction over Baker’s state
law takings claim. The Court now moves to the City’s alternative Rule 12(b)(6) challenge.
II.

Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short

and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
facts in the plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine

The Court’s inquiry does not end upon finding power to exercise supplemental jurisdiction. The Court must also
decide whether it should exercise such jurisdiction under § 1367(c). As mentioned, however, the City’s supplemental
jurisdiction argument is premised on the Court’s dismissal of Baker’s federal cause of action. The City does not discuss
the § 1367(c) factors: A district court should decline to exercise supplemental jurisdiction if: (1) the state claims raise
novel or complex issues of state law; (2) the state claims substantially predominate over the federal claims; (3) the
federal claims have been dismissed; or (4) there are exceptional circumstances or other compelling reasons for
declining jurisdiction. § 1367(c). Under these factors, the parties do not offer, and the Court does not find, any reason
to decline to exercise jurisdiction over Baker’s state law claim.
4

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whether the complaint states a claim for relief that is plausible on its face. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the wellpleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556
U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or
elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting
Twombly, 550 U.S. at 570).
ANALYSIS
The City asserts that “Baker’s lawsuit should be dismissed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure” for three reasons: (1) “[t]he Complaint fails to establish
municipal liability under Section 1983[;]” (2) “[t]he Complaint fails to establish the existence of a

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Fifth Amendment violation[;]” and (3) “Baker’s takings claim under the Texas Constitution . . . is
a sheer attempt to allege tort recovery in a claim wearing takings claim clothing” (Dkt. #6 at pp.
17, 19, 22–23).
Baker contends that she “has pleaded a plausible federal claim for just compensation”
because “[e]xercises of the police power are susceptible to a [t]akings analysis[,]” and “Monell is
not applicable to [her] § 1983 claim” (Dkt. #9 at pp. 10, 24). In support of this, Baker points to the
“‘self-executing character’ of the Takings Clause” (Dkt. #9 at p. 19 (quoting First Eng.
Evangelical Lutheran Church of Glendale v. L.A. Cnty., 482 U.S. 304, 315 (1987)). She
additionally asserts that, even if Monell is applicable, she has alleged “the City made the official
‘decision’ not to compensate Ms. Baker for the destruction of her home.” (Dkt. #9 at p. 21). Thus,
Baker argues she “has alleged facts that plausibly establish a federal [t]akings claim” (Dkt. #9 at
p. 17).
Further, according to Baker, she “has pleaded a plausible Texas claim for just
compensation” because the Department “intentionally destroy[ed] [her] property in order to
apprehend a dangerous, armed fugitive,” resulting in property that was “‘taken’ and ‘damaged’
within the meaning of the Texas Constitution.” (Dkt. #1 ¶ 38). Finally, Baker claims that “[t]he
City mistakenly addresses [her] [state law] claim as if it alleged a tort” (Dkt. #9 at p. 24).
A. Federal Law Takings Violation
Baker brings a claim under both the Fifth Amendment of the United States Constitution
and 42 U.S.C. § 1983 for the City’s purported violation of the Takings Clause, which raises unique
constitutional questions that have not been squarely decided by the Supreme Court or the Fifth
Circuit. Accordingly, the Court will provide detailed background on § 1983, Monell and its
progeny, and the established scope of the Takings Clause. The Court will begin its analysis by

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addressing the City’s argument that Baker has not properly pleaded § 1983 liability and then
determine whether Baker plausibly pleaded the existence of a Fifth Amendment violation.
1. Suit and Liability Under 42 U.S.C. § 1983
Section 1983 provides a cause of action for individuals who have been “depriv[ed] of any
rights, privileges, or immunities secured by the Constitution and laws” of the United States by a
person or entity acting under color of state law. 42 U.S.C. § 1983. “Section 1983 ‘is not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979)). Though the Supreme Court at first “completely immunize[d]
municipalities from suit under § 1983,” see Monroe v. Pape, 365 U.S. 167 (1961), it later
overturned this precedent, allowing municipality liability in particular circumstances. Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 695, 701 (1978).
Under Monell, to establish § 1983 liability against a municipality, a plaintiff must show
that the protected right was violated by the execution of the municipality’s policy or custom. The
theory of respondeat superior is insufficient to establish a municipality’s liability in § 1983 cases.
Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (citing Monell, 436 U.S. at 691). Liability
may be imposed “only where [the government entity] itself causes the constitutional violation at
issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). Thus, to hold the City liable under
§ 1983, Baker must establish that the “execution of [the City’s] policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury.” Deville, 567 F.3d at 170. A governmental entity may also be sued “for
constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom

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has not received formal approval through the body’s official decisionmaking channels.” Monell,
436 U.S. at 690–91.
However, in Monell, the Supreme Court “attempted only to sketch . . . the § 1983 cause of
action against a local government,” electing to “leave further development of this action to another
day.” Id. at 695. One such later development took place in Pembaur v. City of Cincinatti, 475 U.S.
469 (1986), when the Court confronted a contour of the official custom or policy requirement. It
clarified Monell, stating “a municipality may be liable for a single decision by its properly
constituted legislative body . . . because even a single decision by such a body constitutes an act
of official government policy.” Id. at 480. It is, subsequently, well established in the Fifth Circuit
that “a single unconstitutional action by a municipal actor may give rise to municipal liability if
that actor is a final policymaker.” Bolton v. City of Dall., 541 F.3d 545, 548 (5th Cir. 2008) (citing
Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)).
In the present case, Baker alleges a violation of her Fifth Amendment rights, made binding
on the states via the Fourteenth Amendment. The City contends that Ҥ 1983 municipal liability
may only attach through an official action in accordance with official policy or custom” (Dkt. #6
at p. 19). Baker argues that “Monell is not applicable to [her] § 1983 claim” because she “alleges
an uncompensated [t]aking, not a tort” (Dkt. #9 at p. 26). Given the history and purpose of § 1983
and the questions left open in Monell, both arguments are compelling.
While the Court agrees with the City that “a municipality may not be held liable under
§ 1983 solely because it employs a tortfeasor[,]” Bd. of Cnty. Com’rs of Bryan Cnty., Okl. v.
Brown, 520 U.S. 397, 403 (1997), the actions of the Department’s officers are not what give rise
to Baker’s suit. Rather, Baker’s claim arises from the denial of the City to compensate for such
officers’ actions. See John Corp., 214 F.3d at 581 (recognizing that “a violation of the Takings

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Clause does not occur until just compensation has been denied”). Had the City compensated Baker
for the damage caused by the standoff, this lawsuit would not exist in its present form—despite
the officers’ actions. Because Baker seeks to hold the City liable for denying compensation, rather
than to hold the City vicariously liable for the officers’ actions in destroying the property, this
specific reasoning behind the City’s argument fails.
But Baker’s assertion that Monell does not apply in takings cases is not obvious—
particularly when the case is brought under § 1983. 5 Although “respondeat superior or vicarious
liability will not attach under § 1983,” City of Canton, 489 U.S. at 385, the Supreme Court has
deemed the Monell official policy a “requirement [] intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear that municipal liability is
limited to action for which the municipality is actually responsible.” Pembaur, 475 U.S. at 479.
Therefore, it is likely not enough for Baker to plead an intentional act. Under Monell and its
progeny, it seems she must plead an official policy if she wishes to proceed under § 1983. 6
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

As mentioned supra, Baker, in support of her argument that Monell does not apply, cites to case law highlighting the
“self-executing character” of the Fifth Amendment right to just compensation. See (Dkt. #9 p. 19 (quoting First Eng.,
482 U.S. at 315)). This argument has merit but is improperly placed in a § 1983 claim. If the Fifth Amendment is
“self-executing” as Supreme Court jurisprudence suggests, it would seem a plaintiff could recover monetary damages
without the § 1983 vessel. See, e.g., First Eng., 482 U.S. at 315 (“The Supreme Court has explained that a Fifth
Amendment takings claim is self-executing and grounded in the Constitution, such that additional [s]tatutory
recognition was not necessary.” (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933))); United States v. Dickinson,
331 U.S. 745, 748 (1947). “We have held that ‘[i]f there is a taking, the claim is ‘founded upon the
Constitution’ . . . United States v. Causby, 328 U.S. 256, 267 (1946). And we have explained that ‘the act of taking’
is the ‘event which gives rise to the claim for compensation.’” Knick, 139 S. Ct. at 2170 (quoting United States v.
Dow, 357 U.S. 17, 22 (1958)).
6
The Court recognizes cases such as Knick where the Supreme Court assessed a Fifth Amendment taking claim under
§ 1983 against a municipality without discussing an official custom or policy—or even mentioning Monell for that
matter. 139 S. Ct. 2162. This Court speculates that either one or two circumstances lead to this result: (1) the custom
or policy is explicitly stated in or obvious from the stipulated facts; or (2) the municipality fails to raise a Monell
argument, and thereby waives it.
5

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“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.’” (Dkt. #1 ¶ 28). 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. Bolton, 541 F.3d at 548.
However, the Court must still determine whether Baker has sufficiently pleaded a specific
Fifth Amendment violation.
2. Fifth Amendment Violation
Regarding the existence of a constitutional violation, the City contends that “a legitimate
exercise of the police power does not constitute a taking under the Fifth Amendment” (Dkt. #6 at
p. 22). The City further alleges that “Baker’s alleged takings claim under the Fifth Amendment
fails to state a cognizable claim of constitutional harm[] and should be dismissed under Rule
12(b)(6)” (Dkt. #6 at p. 23). Baker does not contest that the Department’s actions were valid
exercises of the State’s police power (see Dkt. #9 at p. 17). Instead, Baker responds that
“[e]xercises of the police power are susceptible to a [t]akings analysis” and that a takings analysis
applies to a broader ambit of situations than just the traditional eminent domain power. (Dkt. #9 at
p. 10).
“[A] property owner has suffered a violation of [her] Fifth Amendment rights when the
government takes [her] property without paying for it.” Knick, 139 S. Ct. at 2167. A taking in
violation of the Fifth Amendment may come in two forms—physical or regulatory. See
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321 (2002) (“The
text of the Fifth Amendment itself provides a basis for drawing a distinction between physical
takings and regulatory takings.”). A physical taking is a “direct government appropriation or

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physical invasion of private property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
Expanding the scope of a taking, “the [Supreme] Court [later] recognized that government
regulation of private property may, in some instances, be so onerous that its effect is tantamount
to a direct appropriation or ouster—and that such ‘regulatory takings’ may be compensable under
the Fifth Amendment.” Id. Despite the established line between physical and regulatory takings,
“[i]n view of the nearly infinite variety of ways in which government actions or regulations can
affect property interests, the [Supreme] Court has recognized few invariable rules in this area.”
Ark. Game and Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).
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. See Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App’x. 711; AmeriSource
Corp., 525 F.3d 1149.
However, both the Fifth Circuit and the Supreme Court have suggested such action could
amount to a taking. In John Corp. v. City of Houston, the Fifth Circuit asserted that “a distinction
between the use of police powers and of eminent domain power . . . cannot carry the day” when
assessing whether a taking has occurred. 214 F.3d at 578–79. Further “[t]he 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.” Id. (citing Penn. Coal Co. v. Mahon, 260 U.S. 393,
415 (1922)). 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

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natural tendency of human nature would be to extend the qualification more and more until at last
private property disappeared.” 505 U.S. 1003, 1014 (1992). It is for this reason the Supreme Court
has cautioned against “the temptation to adopt what amount to per se rules in either direction” of
the takings analysis. Tahoe-Sierra, 535 U.S. at 342.
The Court finds the Fifth Circuit and Supreme Court reasoning persuasive, particularly at
this stage of litigation where it construes allegations in the light most favorable to Baker. At the
motion to dismiss stage, it would be imprudent to foreclose Baker’s ability to recover based on the
shaky reasoning recited in non-binding cases from other circuits—especially when both the Fifth
Circuit and the Supreme Court have alluded that a taking could result from destructive police
power. Because Baker has plausibly alleged the City’s destruction of her home resulting from the
exercise of its police power could amount to a taking, the Court continues its takings analysis.
“[N]ot every destruction or injury to property by governmental action has been held to be
a ‘taking’ in the constitutional sense[;]” however, difficulty exists in “trying to draw the line
between what destructions of property by lawful governmental actions are compensable ‘takings’
and what destructions are ‘consequential’ and therefore not compensable.” Armstrong v. United
States, 364 U.S. 40, 48 (1960) (collecting cases). Baker pleaded that the City took her property
and used it to further the public interest—that is, to apprehend an armed fugitive. In its pursuit of
the fugitive and pursuant to its police powers, Baker alleges the City caused significant economic
damage—over $50,000—to her home. Then, the City refused to compensate her for the damage.
Therefore, Baker alleges, the City took her property without just compensation in violation of the
Fifth Amendment. 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.

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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. Accordingly, Baker has pleaded a plausible right to relief sufficient
to withstand a Rule 12(b)(6) challenge regarding her Fifth Amendment Takings Clause claim. 7
B. State Law Takings Violation
The City also contends that Baker’s state law takings claim fails under the Texas
Constitution. Specifically, the City argues that “Baker’s claim under Texas law should be
dismissed because it is a sheer attempt to allege tort recovery in a claim wearing takings claim
clothing” (Dkt. #6 at p. 23). Baker responds that the Texas Supreme Court’s decision in Steele v.
City of Houston, 603 S.W.2d 786 (Tex. 1980), “allow[ed] a claim that is, for all relevant purposes,
the very same as Ms. Baker’s[,]” and “[t]ry as it might, the City cannot escape the application of
that case to this one” (Dkt. #9 at p. 19). 8
“The Texas Constitution provides that ‘[n]o person’s property shall be taken, damaged or
destroyed for or applied to public use without adequate compensation being made.” Sheffield Dev.
Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004) (quoting Tex. Const. art. 1, § 17).
“By their plain terms, the takings provisions of the state and federal constitutions do not limit the
government’s power to take private property for public use but instead require that a taking be
compensated.” Id. “Generally, plaintiffs seeking recovery for a taking must prove the government
‘intentionally took or damaged their property for public use, or was substantially certain that would
be the result.’” Kerr, 499 S.W.3d at 799 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 807
Whether the damage to Baker’s home does amount to a constitutional taking that requires just compensation is better
left to summary judgment. At present, the Court must only determine whether a plausible right to relief exists. See
Ashcroft, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” (quoting Twombly, 550 U.S. at 556)).
8
The applicability of Steele, which provides for potential recovery under the specific facts of this case, is best resolved
at summary judgment—not at the present Rule 12(b)(6) motion where the Court is concerned only with plausibility
of a cause of action.
7

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(Tex. 2005)). In accordance with the intentionality requirement, “a taking cannot be established
by proof of mere negligent conduct by the government.” Id. (citation omitted). Rather, “the
requisite intent is present when a governmental entity knows that a specific act is causing
identifiable harm or knows that the harm is substantially certain to result.” Gragg, 151 S.W.3d at
555 (citing Brazos River Auth. v. City of Graham, 354 S.W.2d 99 (Tex. 1961)). Importantly,
“[o]nly affirmative conduct by the government will support a takings claim.” Kerr, 499 S.W.3d at
799.
While negligence cannot serve as the basis for a takings claim under the Texas
Constitution, Baker has not asserted mere negligence, and she “is the master of her Complaint”
(Dkt. #9 at p. 4). 9 Rather, 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. (Dkt. #6 at p. 22). The resulting damage, therefore, can hardly
be considered “incidental consequence[s] of the City’s actions” (Dkt. #6 at p. 27). 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 City’s attempt to bring Baker’s claims under Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003),
is unavailing. The test promulgated by the Federal Circuit is not Texas law, and irrespective of the opinion’s nonbinding nature, the Court finds Baker has appropriately pleaded facts alleging a takings claim—not a tort action.
9

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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.
CONCLUSION

.

It is therefore ORDERED that Defendant City of McKinney’s Rule 12(b)(1) and Rule
12(b)(6) Motion to Dismiss (Dkt. #6) is hereby DENIED.
IT IS SO ORDERED.
SIGNED this 18th day of November, 2021.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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