[00:00:02] Speaker 01: Good morning, Your Honor. [00:00:03] Speaker 01: May it please the court? [00:00:04] Speaker 01: I'm Jeffrey Redfern from the Institute for Justice here on behalf of the appellant, Carlos Pena. [00:00:09] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:13] Speaker 01: A few weeks ago, two justices of the Supreme Court issued a statement recognizing that the question in this case is one of first impression, deserving careful consideration from the lower courts. [00:00:25] Speaker 01: If there is a law enforcement exception to the Fifth Amendment, it has to come from somewhere in constitutional text or history. [00:00:31] Speaker 01: but the city of Los Angeles can't tell us where. [00:00:34] Speaker 07: Well, counsel, I'm going to push back on that a little, because I think that before you would even get to that question, you would have to answer the question of, does the conduct that's alleged here even come within the meaning of the takings or just compensation clause of the Fifth Amendment? [00:00:54] Speaker 07: If it doesn't come within the meaning pursuant to history and original public meaning, they don't have to show an exception. [00:01:05] Speaker 01: Yeah, I think that's pretty straightforward, Your Honor. [00:01:07] Speaker 01: It goes, in the Supreme Court, at least back to Pompeli, when the government physically invades property such that it destroys it and deprives a property owner of use and enjoyment. [00:01:16] Speaker 07: So correct me if I'm wrong, Counsel. [00:01:18] Speaker 07: First, in Pompeli, the Supreme Court was interpreting the Constitution of the state of Wisconsin, correct? [00:01:26] Speaker 01: Yes, and it said that it was the same as the federal constitution. [00:01:30] Speaker 07: But it was interpreting that, and then it said, where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure so as to effectively destroy or impair its usefulness, it is a taking. [00:01:47] Speaker 07: Beyond this, we do not go, and this case calls us to go no further. [00:01:51] Speaker 07: That's the holding, right? [00:01:53] Speaker 01: Right. [00:01:54] Speaker 01: And I think that applies to this case exactly. [00:01:56] Speaker 01: It was really the tear gas that did this damage. [00:01:58] Speaker 01: It was foreign material. [00:02:00] Speaker 01: Go ahead. [00:02:01] Speaker 01: They launched foreign material into my client's shop that saturated and destroyed his equipment so that its usefulness was completely destroyed. [00:02:09] Speaker 01: His printers are in a landfill now and he can't use them. [00:02:12] Speaker 01: And the Supreme Court has [00:02:14] Speaker 01: over and over again reaffirmed Pompelli. [00:02:17] Speaker 01: So it's not just limited to the Wisconsin Constitution. [00:02:20] Speaker 01: They've reaffirmed it as recently as Arkansas, Game and Fish. [00:02:23] Speaker 07: But you're saying that in the separate statement, the two justices said the question of whether damage reasonably incurred in the capturing of a fugitive who's a danger to public safety is a question of first impression? [00:02:41] Speaker 01: Yeah, that specific question has not been answered. [00:02:43] Speaker 01: But I do think that history is very instructive because we have all of these cases dealing with public necessity from the 19th century. [00:02:50] Speaker 01: We've got cases in our brief from the 1830s, 40s, and 50s. [00:02:54] Speaker 01: And they all say that if the government is tearing down your house to create a firebreak or to stop a pestilence, the individual officers who are doing this destruction, they are protected. [00:03:06] Speaker 01: They have an individual toward immunity. [00:03:07] Speaker 01: But that doesn't get imputed to the government for purposes of the takings clause. [00:03:11] Speaker 06: Mr. Redburn, I'm trying to understand your position here. [00:03:18] Speaker 06: If the SWAT team had simply used a battering ram and did not deploy any gas and destroyed only Mr. Peña's shop door, would that be a taking under your theory? [00:03:32] Speaker 01: I think it would, Your Honor. [00:03:34] Speaker 01: But if the government in a future case wants to argue that there's some sort of de minimis exception for a splinter door jam, that's a fight we can have down the road. [00:03:43] Speaker 01: I think that the model for how to decide this case really, I think, is Arkansas Game and Fish. [00:03:49] Speaker 01: The Supreme Court there was looking at a lower court decision that had drastically over read dicta in its prior cases and created this categorical exception to the Fifth Amendment. [00:03:59] Speaker 01: And all the Supreme Court did in that case was say, we reject that categorical exception. [00:04:04] Speaker 01: Anything that's open on remand, you can still argue. [00:04:07] Speaker 01: In future cases, you can argue for narrower exceptions. [00:04:09] Speaker 07: Council, your test proposes whenever the government caused property damage intentionally foreseeably or foreseeably for any public benefit, the government has to pay, right? [00:04:21] Speaker 07: That's right. [00:04:22] Speaker 07: Okay. [00:04:23] Speaker 07: Let me give you a hypothetical slightly different than what happened in this case. [00:04:28] Speaker 07: That test would be applicable if the fugitive here were holding a hostage, right? [00:04:35] Speaker 01: I think that if the fugitive are holding a hostage and say the hostage were inside their own property, then probably the YMCA doctrine would apply. [00:04:44] Speaker 07: But if the fugitive were holding a hostage that wasn't the owner of the damaged property, government would have to pay. [00:04:54] Speaker 07: That's right. [00:04:56] Speaker 07: Or if the fugitive were holding an explosive. [00:05:03] Speaker 07: That's right. [00:05:03] Speaker 07: Or if the fugitive, to take some facts from a very old Supreme Court case, were putting somebody in a coffin under the ground where they had an hour of an air supply and the government were rescuing them, your test would say compensate. [00:05:27] Speaker 01: It would, and I think the problem with all of these hypotheticals is that all of them ask, does the government have a really good reason for taking property? [00:05:35] Speaker 01: And you can look at all of Supreme Court case law about the takings. [00:05:38] Speaker 01: It doesn't matter how good the reason is. [00:05:40] Speaker 01: You have to have a good reason to take it in the first place. [00:05:43] Speaker 07: But that presupposes that damaging property and the reasonable exercise of protecting the public is taking the property. [00:05:53] Speaker 07: But I understand you say it is. [00:05:57] Speaker 07: Would hypothetically, if the [00:06:01] Speaker 07: there were a fire engine going down the street, and there were a car in its way on the side that it legally parked, that it needed to move out of the way to put out of a fire, and it damaged the car. [00:06:18] Speaker 07: That's compensable too, right? [00:06:20] Speaker 01: That's what City of New York v. Lord and Bishop v. Macon, all of these old 18th century cases say that. [00:06:26] Speaker 01: It's the exact same case. [00:06:27] Speaker 01: If we have to destroy your property to stop a fire, [00:06:31] Speaker 01: that's going to be a taking, unless your property would have been destroyed anyway, absent the firefighting activity. [00:06:39] Speaker 01: So if the blaze is rushing towards your house, that's an inevitable destruction case. [00:06:44] Speaker 01: And that's one of the things that Justice Sotomayor and Gorsuch flagged is different. [00:06:50] Speaker 03: One of Judge Bennett's typos was an explosive. [00:06:52] Speaker 03: I would have thought that would have fallen into the exception you were just discussing. [00:06:58] Speaker 01: Oh, I suppose it would then. [00:06:59] Speaker 01: Yeah. [00:06:59] Speaker 01: So if they and that's those are going to be, you know, fact intensive questions with the government is going to have to prove that it would have been destroyed anyway. [00:07:07] Speaker 01: But I think those are the kinds of case by case determinations that the Supreme Court is encouraging lower courts to make in Arkansas Game and Fish rather than falling back on these broad categorical exceptions. [00:07:18] Speaker 03: So a big theme in your brief is this quote from Armstrong about not having the government force particular people. [00:07:28] Speaker 03: Or did we just lose Judge Tallman? [00:07:30] Speaker 03: Hold on. [00:07:30] Speaker 03: Can we stop the clock for a second and make sure we have Judge Tallman? [00:07:33] Speaker 03: And then I'll ask my question. [00:07:38] Speaker 04: We have lost Judge Tallman. [00:07:40] Speaker 04: I will work on getting him back. [00:08:57] Speaker 04: Judges, Judge Tallman's chambers reports their building has lost power. [00:09:02] Speaker 04: They are working on reconnecting Judge via Wi-Fi and an iPad or something. [00:09:09] Speaker 04: I will continue working with them to help facilitate this. [00:09:12] Speaker 04: Would you like to possibly take a recess and go into the roving room? [00:09:18] Speaker 03: Sure. [00:09:18] Speaker 03: It sounds like this might take a few minutes, so why don't we do that? [00:09:23] Speaker 04: Okay. [00:09:25] Speaker 04: Thank you. [00:09:25] Speaker 04: Judges, here we go to the roving room. [00:09:29] Speaker 02: Kelly, can you hear me? [00:09:31] Speaker 04: Yes, we are still public audio. [00:09:34] Speaker 02: Judge Tallman says they lost power in the building. [00:09:37] Speaker 04: Yes, that is what I just reported to judges. [00:09:39] Speaker 02: OK. [00:09:40] Speaker 04: Thank you. [00:09:41] Speaker 02: He wants to know if you can connect by video. [00:09:43] Speaker 02: I mean, by phone. [00:09:45] Speaker 04: Yes, of course you can. [00:09:46] Speaker 04: I will send that information straight away. [00:09:49] Speaker 02: OK, I'll let him know. [00:09:50] Speaker 02: Just tell me they're sending over the information so you can plug in with your cell phone. [00:09:57] Speaker 02: Okay. [00:09:57] Speaker 02: Thank you, Judge. [00:10:01] Speaker 02: Okay. [00:10:05] Speaker 02: Public audio is off. [00:11:01] Speaker 04: I've sent my teams to both Judge and Crystal. [00:12:25] Speaker 04: Hi, Judge, can you hear me? [00:12:26] Speaker 06: Yeah, I can hear you. [00:12:27] Speaker 04: Okay, I've got you on. [00:12:29] Speaker 04: I'm going to put you back into the roving room and I'll join you there and then we'll come back out into the courtroom. [00:12:34] Speaker 04: Okay, very good. [00:12:35] Speaker 04: The judges took a recess. [00:12:37] Speaker 04: Okay, everyone, please stand by for resumption of court. [00:13:34] Speaker 03: OK, I think we're all back. [00:13:41] Speaker 03: I think we're all back. [00:13:42] Speaker 03: So I'll start my question over. [00:13:45] Speaker 03: So there's a big focus on Armstrong and the notion that the government shouldn't force some people alone to bear the burden of the cost of helping the public. [00:13:57] Speaker 03: Why shouldn't we view the situation here as the fugitive having chosen Mr. Peña to bear this burden rather than the government? [00:14:07] Speaker 01: Well, it was still the government's choice to cause the destruction. [00:14:10] Speaker 01: And I don't think the Takings Clause asks about fault. [00:14:13] Speaker 01: If we took my house to build a jail, it could be the fault of the criminals that we have to house. [00:14:20] Speaker 01: It could have been absolutely necessary. [00:14:22] Speaker 01: Same thing in a war. [00:14:24] Speaker 01: If they need to take my horses to fight the British, it's the faults of the British. [00:14:28] Speaker 07: When you say an answer to Judge Friedland's question, the choice, first, you've agreed the government did what was reasonable and necessary, right? [00:14:39] Speaker 01: Well, we agree that it was reasonable and lawful. [00:14:41] Speaker 07: We don't agree that it was. [00:14:43] Speaker 07: OK, reasonable and lawful. [00:14:45] Speaker 07: And if the government had, you would also agree that theoretically, the government was faced with a situation where inaction or less action could have caused significantly more harm to individuals, right? [00:15:02] Speaker 01: That's possible. [00:15:03] Speaker 07: All right, go ahead. [00:15:05] Speaker 01: OK. [00:15:05] Speaker 01: Yeah, and I think the answer to that is just all of this history that we talk about in our brief. [00:15:10] Speaker 01: We've got the founding area declarations of rights that all say, you know, when it's necessary for the common preservation, for people to sacrifice their property, they get compensated. [00:15:19] Speaker 01: We've got cases from the 1830s and 40s, and we don't have any cases going the other way. [00:15:25] Speaker 01: This every time. [00:15:26] Speaker 03: I mean, part of the intuition, though, is that someone who does something that helps [00:15:32] Speaker 03: someone who helps solve a problem, it should somehow get compensated. [00:15:36] Speaker 03: But it seems that if someone intrudes in your house and it causes damage, you can usually sue that person. [00:15:43] Speaker 03: So I'm just wondering if there needs to be government compensation if the notion is that the intruder caused this problem. [00:15:51] Speaker 03: It was all a reasonable government reaction. [00:15:53] Speaker 03: So really, the person liable should be the intruder who was the cause of this. [00:15:59] Speaker 01: Well, I don't think [00:16:00] Speaker 01: There's any way the intruder was going to destroy the shop like this. [00:16:04] Speaker 01: Certainly, if the intruder did some damage, that wouldn't be something that the government has to pay for. [00:16:09] Speaker 01: And, you know, the government could have could have claims against [00:16:15] Speaker 01: against the intruder. [00:16:16] Speaker 01: They could have claims for restitution. [00:16:17] Speaker 01: They're probably not going to be able to recover. [00:16:20] Speaker 01: But I think that this is sort of a common theme through these takings cases, that we don't look for fault. [00:16:26] Speaker 01: We just look, did the government cause the damage or take the property? [00:16:29] Speaker 07: So Counsel, you're obviously familiar with Cedar Point. [00:16:32] Speaker 07: Yes. [00:16:33] Speaker 07: OK. [00:16:34] Speaker 07: So in Cedar Point, where the Chief Justice was talking about background limitations that don't involve a taking, [00:16:45] Speaker 07: and no compensation is entering public or entering private property in the case of necessity, entry to avoid a disaster, entry to avoid serious harm, entry to, I believe, affect arrest or enforce the criminal law. [00:17:11] Speaker 07: So the court was saying, here you have these background principles, and even though entry itself is a taking, as it found in Cedar Point, it's still informed by these background principles where there's no compensation because it's not a taking. [00:17:29] Speaker 07: So why wouldn't we look at what the Supreme Court said in Cedar Point and say this is a predicate to entry to avoid serious harm or the privilege to affect an arrest or enforce the criminal law and things that are connected with that? [00:17:47] Speaker 07: Why wouldn't we take what the government is saying here as an extension of those background principles the court identified in Cedar Point? [00:17:57] Speaker 01: So I think that that dicta has to be read in the context of the right that the court was talking about there. [00:18:03] Speaker 01: I think at least a dozen times the court refers to the right to exclude. [00:18:06] Speaker 01: And we wholeheartedly agree that a lawful search does not appropriate a property owner's right to exclude, which has never been absolute. [00:18:14] Speaker 01: But there was no damage in that case. [00:18:16] Speaker 07: And I think that- I understand there was no damage in that case. [00:18:18] Speaker 07: I would also say the Supreme Court [00:18:21] Speaker 07: has taken on occasion a dim view of our court characterizing what it said as dicta? [00:18:29] Speaker 01: Well, I think actually the court takes the opposite view in Arkansas Game and Fish. [00:18:34] Speaker 01: What the Federal Circuit did in that case was expand dicta from prior Supreme Court takings cases to create a new exception that was about a totally different factual situation. [00:18:46] Speaker 01: And the Supreme Court said, don't do that. [00:18:48] Speaker 01: And I think one of the reasons not to read that dicta so broadly is that all of this history that we're talking about in our brief, that was not before the Supreme Court in Cedar Point. [00:18:57] Speaker 01: And if we were to read Cedar Point that broadly, then we have an irreconcilable conflict with the history because all of these 19th century cases go the other way on at least public necessity. [00:19:08] Speaker 01: And public necessity and law enforcement privilege were treated similarly by the Supreme Court there. [00:19:15] Speaker 07: I have one more question for you, counsel. [00:19:18] Speaker 07: You're familiar with the Bachman case? [00:19:21] Speaker 07: Yes. [00:19:21] Speaker 07: All right. [00:19:22] Speaker 07: So I think in 2017, the United States filed, the Department of Justice filed a motion to dismiss, where it took the position that the complaint fails because the United States' valid exercise of its police power did not affect the taking. [00:19:41] Speaker 07: Are you aware of any more recent statement by the United States on this issue other than their motion to dismiss and the reply they filed in Bachman? [00:19:51] Speaker 01: I am not from the United States. [00:19:53] Speaker 07: All right. [00:19:53] Speaker 07: Thank you. [00:19:55] Speaker 01: I would note, though, that that police power exception has since been rejected by the Fourth, Fifth, Sixth Circuits. [00:20:02] Speaker 01: It's squarely at odds with a century of Supreme Court precedent. [00:20:05] Speaker 01: So I don't think [00:20:07] Speaker 01: Nobody is really going that direction anymore except some lower, unreported trial court decisions. [00:20:12] Speaker 07: Well, they also said a government action for public safety is an exercise of the police power not taking. [00:20:19] Speaker 07: But in any case, you're not familiar, as you said, with a more recent statement by the United States. [00:20:25] Speaker 06: No. [00:20:26] Speaker 06: Counsel, are you familiar with the 2022 Supreme Court decision in Egbert versus Buell? [00:20:33] Speaker 06: That was a case dealing with whether or not we should recognize new causes of action under the Bivens Doctrine against federal law enforcement officers for torts committed within the course and scope of their employment. [00:20:48] Speaker 06: I'm not familiar with that case. [00:20:49] Speaker 06: The concern I have is the question of who decides this question that you are presenting to us today. [00:20:56] Speaker 06: In that case, the Supreme Court basically said that if the actions would result in the creation of a new cause of action, [00:21:10] Speaker 06: under the Bivens doctrine that judges should ask themselves whether that the decider should be judges or whether the legislature would be in a better position to resolve the question of who pays and I'd like your thoughts with regard to whether or not there's an analogy here to fuel [00:21:32] Speaker 06: that the question very much needs to be resolved, but shouldn't this be left to Congress as opposed to the courts? [00:21:41] Speaker 01: No. [00:21:41] Speaker 01: So I think the question's already been answered. [00:21:44] Speaker 01: In NIC, the Supreme Court said, if you have alleged that your property has been taken and that you haven't been paid, you have a ripe 1983 cause of action. [00:21:51] Speaker 01: Congress created that cause of action for takings claims. [00:21:54] Speaker 01: Now, whether this is a taking or not is just a question of substantive law, but it's not a question of whether there's a cause of action. [00:22:01] Speaker 01: I would also note that Bivens has different concerns because that's about tort remedies for completed violations. [00:22:08] Speaker 01: And in a takings claim, the taking is not a violation. [00:22:12] Speaker 01: The violation is the refusal to compensate. [00:22:16] Speaker 01: But I don't think there's any question that we have a 1983 cause of action for the takings claim here. [00:22:21] Speaker 07: Judge Friedland, would it be OK if I asked one more question? [00:22:24] Speaker 07: I know I've taken up. [00:22:25] Speaker 03: I was going to say, I have more questions, too. [00:22:27] Speaker 03: So we will still give you three minutes for rebuttal, but just keep answering our questions as long as we ask them. [00:22:31] Speaker 07: Thank you. [00:22:32] Speaker 07: Thank you, Judge Friedland. [00:22:33] Speaker 07: So sort of asking a different version of Judge Talman's question, a significant number of states have, in fact, addressed this exact question in their constitutions, right? [00:22:51] Speaker 01: Are you referring to the damaging clauses? [00:22:54] Speaker 07: Yes. [00:22:55] Speaker 01: Yes. [00:22:55] Speaker 01: So that's actually not about this issue. [00:22:57] Speaker 01: Professor Molly Brady at Harvard published an article in 2018 in the University of Virginia Law Review about these. [00:23:03] Speaker 01: And she explains that actually damage caused by physical invasions was already understood to be compensable when these were adopted. [00:23:09] Speaker 01: They were essentially to constitutionalize the law of nuisance and loss of access from public works in the late 19th century. [00:23:17] Speaker 07: well when there was no physical intrusion although the actual language of the constitutions for example minnesota private property shall not be taken destroyed or damaged texas no person's property shall be taken damaged or destroyed california private property may be taken or damaged but only when you pay [00:23:37] Speaker 07: the language of those constitutions doesn't reflect what you've just said, right? [00:23:46] Speaker 07: I mean, it may be part of their history or not, but they all use the word, if it's damaged, they all use the word, if it's taken, you get money, if it's damaged, you get money. [00:23:58] Speaker 01: Right. [00:23:58] Speaker 01: And I would just encourage you to take a look at the article. [00:24:01] Speaker 01: It goes into the constitutional history in a lot of detail. [00:24:05] Speaker 01: But I would note that all of these amendments post date Pompeli. [00:24:09] Speaker 01: So it was it was already understood that under the Fifth Amendment, literal destruction of private property was covered. [00:24:15] Speaker 01: This was mostly about cases with like street grading, where suddenly your front door would be five stories in the air and you needed to use a ladder. [00:24:22] Speaker 01: Or if you're next to a railroad and there was smoke coming in, [00:24:26] Speaker 01: But the railroad itself didn't actually cross onto your property. [00:24:28] Speaker 01: Those were the cases that they were concerned about. [00:24:33] Speaker 03: My question was following up on the inevitability concept that you talked about earlier, like when you said that if someone was holding an explosive that might actually fall under the exception if the house would have exploded anyway. [00:24:46] Speaker 03: It seemed that here, originally, Mr. Pena filed a complaint or claim with the city that said that the intruder did cause damage. [00:24:56] Speaker 03: And I'm wondering if there's a fact question here about inevitability and how much damage this intruder actually would have caused. [00:25:04] Speaker 01: So I think that when it actually comes to, like, we only move for summary judgment on liability. [00:25:11] Speaker 01: If it actually came to damages, I think that's something that we would have to hash out. [00:25:15] Speaker 01: The city hasn't argued inevitable destruction or that there would have been more damage. [00:25:21] Speaker 01: And I think it's hard to make that case out because these toxic chemicals literally destroyed all of the electronics equipment there. [00:25:28] Speaker 01: It's hard to imagine that a fugitive who's running from the police would have done more damage than that. [00:25:33] Speaker 03: Well, what kind of damage was described in that original claim? [00:25:40] Speaker 01: I don't have the language of his initial claim right here, but it was, I believe it was that when he climbed into, my understanding is that he damaged one of the printers because he stood on it when he climbed up into the ceiling to get away. [00:25:56] Speaker 01: But he wasn't in there trashing the place or anything. [00:26:00] Speaker 03: If he were in there trashing the place though, it might not be a taking, right? [00:26:05] Speaker 01: That's possible. [00:26:06] Speaker 01: And that would be a fact question. [00:26:07] Speaker 01: And it's something that the government would have to make out. [00:26:09] Speaker 01: But it would be a much narrower exception than what they're arguing for today. [00:26:13] Speaker 07: And the government hasn't argued here that the fugitive caused the damage that we're talking about here, except maybe a printer or something. [00:26:23] Speaker 06: No, that's right. [00:26:25] Speaker 06: Council, I apologize if you may have addressed this point during the power outage while I was briefly away, but I know that the Sixth Circuit recently addressed the search and arrest privilege in Slabaw versus Rutherford County, Tennessee. [00:26:43] Speaker 06: Do you think that the city's actions were covered by the search and arrest privileges recognized by the Sixth Circuit? [00:26:52] Speaker 01: I think they probably were. [00:26:53] Speaker 01: I think the problem, though, is that we can't find a historical basis for imputing these private privileges against tort liability to the government in takings claims. [00:27:06] Speaker 01: Other than Cedar Point Dictif, we're talking about the bare right to exclude, which was the only right at issue in that case. [00:27:13] Speaker 06: I guess the concern I have is that if we rule it in your favor, we would be creating a split with the circuits. [00:27:21] Speaker 01: Well, I think there's already a three-way split. [00:27:25] Speaker 01: The Fifth and the Sixth say that the Tenth Circuit's wrong. [00:27:28] Speaker 01: The Sixth says the Fifth Circuit seems to be wrong. [00:27:31] Speaker 01: So they all have different rationales here. [00:27:33] Speaker 01: And I think that the Supreme Court is, as of now, [00:27:37] Speaker 01: not satisfied with the amount of analysis that it has gotten from the lower courts. [00:27:43] Speaker 01: That's the, I think, the takeaway from the Gorsuch Sotomayor statement. [00:27:47] Speaker 01: So I don't think that just sort of, you know, following the direction that these are going is really viable, both because there's not a consensus and because [00:27:57] Speaker 01: You know, we have marching orders to take these cases seriously. [00:28:00] Speaker 06: Well, they have told us before that they're not averse to letting the Circuit Courts of Appeals stir the soup a little more before it's ready for dinner. [00:28:13] Speaker 06: The question is whether or not this is going to be the springboard that gets it back in front of them. [00:28:21] Speaker 06: That's all I have to treat them. [00:28:24] Speaker 03: Okay, why don't we go to the other side and we'll still give you three minutes for rebuttal. [00:28:29] Speaker ?: Thank you. [00:28:35] Speaker 03: I think you're muted still. [00:28:36] Speaker 03: Yes. [00:28:37] Speaker 05: Thank you, Your Honors. [00:28:38] Speaker 05: Michael Walsh with the City Attorney's Office of Los Angeles for the City of Los Angeles. [00:28:42] Speaker 05: I think the basic conflict here is between the well-established law regarding the enforcement of criminal laws and the law that plaintiff hopes to establish by judicial fiat. [00:28:54] Speaker 05: He refers a lot to the historical record, but there's not a single case in the entire history of the country holding that damages inadvertently caused by the enforcement of criminal laws constitutes a taking, not one. [00:29:07] Speaker 05: In 200 years of jurisprudence, the closest he comes is an offhand comment by an intermediate court in New York, which does not rule on the issue, does not adjudicate the issue, but simply comments on that as a possible alternative remedy. [00:29:21] Speaker 05: There are no other cases. [00:29:22] Speaker 05: That's somewhat remarkable, giving 200 years of jurisprudence that no other court has held this before. [00:29:29] Speaker 07: Well, Council, what do you say to your friend's argument that Pompelli, when it talks about where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, it's a taking. [00:29:47] Speaker 07: And he said that's what happened here. [00:29:49] Speaker 07: Right. [00:29:50] Speaker 05: And clearly, Pompeo is talking about the physical occupation of land, the sort of the classic example of building a dam and flooding the backwaters or, you know, building a highway but forgetting to contend the property you're building the highway on. [00:30:04] Speaker 05: Something like that, where you're physically occupying property in a way that essentially destroys the property rights of the owner. [00:30:11] Speaker 05: That's not this case. [00:30:13] Speaker 05: The property rights that Pina and the actual owner of the property, because Pina's a tenant, [00:30:20] Speaker 05: to the real estate hasn't changed. [00:30:23] Speaker 05: Personal property was damaged, but the Bedford case, the Supreme Court's made the distinction between to the taking of property for public use and damages that are caused by government action. [00:30:37] Speaker 05: The first being within the Takings Clause, the second not. [00:30:41] Speaker 05: The government causes damages all the time that isn't part of the Takings Clause. [00:30:45] Speaker 05: And there's been no physical occupation of the property here. [00:30:50] Speaker 05: But I think it's, and those cases come after the physical occupation cases you're talking about. [00:30:58] Speaker 05: Cedar Point is very much on point, and it's not dicta. [00:31:02] Speaker 05: The plaintiff likes to refer to that comment as dicta, but it very much goes to the basis for the Court's holding and the scope of the Court's holding in terms of why certain intruders in the property are takings and others are not. [00:31:14] Speaker 05: So that isn't dicta that Your Honor was referring to in Cedar Point. [00:31:18] Speaker 05: That's very much a part [00:31:19] Speaker 05: of the scope and the basis for the holding. [00:31:21] Speaker 07: Council, if we were to rule in either your favor or your friend's favor, there could be broad rulings, there could be more narrow rulings, but if we were to hypothetically rule in your favor, [00:31:37] Speaker 07: Would there be any need for us to go beyond, based on the facts of this case, setting a principle that property damaged in the legitimate and reasonable exercise of the police power to try to capture a fugitive from justice is not a taking? [00:31:57] Speaker 07: Would there be any need for us to lay down in this case any broader rule than that or something like it? [00:32:05] Speaker 05: No, Your Honor. [00:32:06] Speaker 05: That's very much on all fours with this case, I believe, and there's no reason to expand beyond that. [00:32:12] Speaker 05: And I think this case actually gives the Court an opportunity to harmonize the several circuit court opinions. [00:32:18] Speaker 05: I know that plaintiff is trying to characterize these as conflicts between the Buckman and Baker and Slobod cases, but the fact is they all reach the very same conclusion that incidental harm [00:32:31] Speaker 05: damage caused by the lawful and reasonable enforcement of criminal laws is not a taking. [00:32:38] Speaker 05: They all come to that conclusion. [00:32:41] Speaker 06: Council, one of the concerns that I have is that what happened to Mr. Pena, which was tragic and I have a lot of empathy for him, [00:32:51] Speaker 06: Nonetheless, I mean, we've got SWAT teams all over the circuit and these sorts of entries are not uncommon when the police are chasing fugitives or dealing with a barricaded suspect or a hostage-taking situation. [00:33:09] Speaker 06: I understand that there's some sort of a state statute in California that addresses this issue. [00:33:18] Speaker 06: Can you enlighten me as to whether or not the City ever pays for damages caused by the police on these types of actions? [00:33:27] Speaker 05: I can't speak to cases in a broader sense, but I think Your Honor has exactly focused on what the solution to this issue is, is that [00:33:37] Speaker 05: There's a harm here, to be sure. [00:33:39] Speaker 05: Pena suffered a significant harm. [00:33:41] Speaker 05: In fact, all the plaintiffs in all the different circuit cases all suffered harms, often by strangers who forced their way into houses or to commercial establishments. [00:33:53] Speaker 05: But that doesn't make it a taking. [00:33:54] Speaker 05: That doesn't mean that property was taken for public use. [00:33:57] Speaker 05: There's definitely an issue here that needs to be addressed, but it's not a judicial solution. [00:34:01] Speaker 05: There's a legislative or administrative [00:34:03] Speaker 05: issue here, and the efforts to address this problem should be done on that level. [00:34:09] Speaker 03: Um, in fact, it seems like his claim was denied by the city. [00:34:12] Speaker 03: Do you understand why? [00:34:13] Speaker 05: I don't know the details of that claim. [00:34:16] Speaker 05: I was denied that. [00:34:17] Speaker 05: I know. [00:34:18] Speaker 05: Um, but I don't know the details of those. [00:34:21] Speaker 05: That was long before I was involved in the case. [00:34:23] Speaker 05: I don't know the mechanism. [00:34:25] Speaker 07: So this I'm sorry. [00:34:27] Speaker 07: Go ahead, Judge Friedland. [00:34:28] Speaker 03: You started earlier by talking about how there is no case that ever said that this kind of conduct was a taking. [00:34:37] Speaker 03: But I don't know that we only have a few cases saying the opposite, and most of them are recent. [00:34:41] Speaker 03: And I'm wondering if this is because Nick is recent. [00:34:45] Speaker 03: Like, maybe before Nick, people actually went through some process and got compensated by cities or states for this kind of damage. [00:34:53] Speaker 03: And am I right in understanding that that might be the difference here? [00:34:57] Speaker 03: He didn't have to appeal the denial of the claim because of Nick. [00:35:00] Speaker 03: And now we have this new question that just isn't in the history at all. [00:35:05] Speaker 05: Well, I think the claims would have existed in any case. [00:35:08] Speaker 05: I don't know of any reason to think that the cities and counties in the country are dealing with these sorts of harms differently now than they were before. [00:35:16] Speaker 05: The remedy in them. [00:35:17] Speaker 03: I guess my point is, sorry, can I just make sure you understand my question? [00:35:23] Speaker 03: If there was a process to compensate people, [00:35:25] Speaker 03: then before Nick, people needed to go through that process and get the money somehow through an administrative process or a legislative process. [00:35:34] Speaker 03: Nick says you don't have to do that. [00:35:36] Speaker 03: You can come straight to federal court with your taking claim. [00:35:38] Speaker 03: So is that why there's no history in the cases either way on this issue? [00:35:45] Speaker 05: I don't think so, Your Honor, because I think if there's no reason to believe that cities and counties stopped paying because of that procedural change, [00:35:54] Speaker 05: that their policies in terms of compensation changed at all. [00:35:57] Speaker 05: There's no reason to believe that. [00:35:59] Speaker 05: So before that, there would be cases. [00:36:01] Speaker 05: They might be in state courts, but there would still be cases challenging the denial of claims. [00:36:07] Speaker 05: The cases don't necessarily have to be in federal court, although they might eventually get there. [00:36:11] Speaker 05: But there'd be claims somewhere. [00:36:12] Speaker 03: Can you find the state court cases that are saying, no, you don't get money for the police damage? [00:36:17] Speaker 03: I don't think we have cases either way here. [00:36:19] Speaker 05: I don't. [00:36:20] Speaker 05: I think what we have is the record, the historical record that Baker and Slobaugh go through, that historically these are not the types of things that were constituted claims. [00:36:30] Speaker 05: And so you're right. [00:36:33] Speaker 05: There's not holdings in either direction. [00:36:35] Speaker 05: But what that means is when the claims are denied, they didn't go anywhere, or the people just understood that this was not something that was compensable. [00:36:43] Speaker 05: I mean, this goes back to even the YMCA case, which is 1969, which isn't so long ago. [00:36:47] Speaker 05: made the comment that, you know, when marshals break down the doors to foil a burglary they think is taking place, that's not a taking. [00:36:54] Speaker 05: That's the reasonable enforcement of criminal laws, whether they're right or wrong about the burglar. [00:36:59] Speaker 07: Breaking down the doors isn't a taking. [00:37:01] Speaker 07: You may not know the answer to this, although I suspect given your job you probably do. [00:37:06] Speaker 07: I doubt it's in the record, but a number of states, municipalities, et cetera, and at least this used to be the way it worked in the United States, but not since the passage of the Federal Tort Claims Act, there's some equivalent of private bills or resolutions to compensate in a circumstance where somebody might not be able to recover in a lawsuit. [00:37:36] Speaker 07: we have things like that in the state I live in. [00:37:39] Speaker 07: Is there any process that ever goes through, for example, in the council in Los Angeles, we're in a circumstance where somebody can't sue, they are still compensated through a resolution or an ordinance because the council believes that would be fair? [00:37:59] Speaker 05: That remedy is directly available. [00:38:02] Speaker 05: I don't know if it being employed. [00:38:04] Speaker 05: It's certainly not in this case. [00:38:05] Speaker 05: I know there is in California a state fund to compensate people who've suffered harm at crimes, because typically often the criminal, while theoretically liable, has no assets. [00:38:17] Speaker 05: So there is a fund to compensate people who suffered harms at crimes in California. [00:38:22] Speaker 06: But that addresses the crime victim who basically doesn't have a realistic chance of recovering anything from an impugnious defendant. [00:38:34] Speaker 06: Right, which Peter says he is now. [00:38:37] Speaker 06: Yeah. [00:38:38] Speaker 06: Yeah. [00:38:40] Speaker 06: And there's no evidence that he applied to that fund for reimbursement of all or part of his client. [00:38:46] Speaker 05: I'm not aware of any application. [00:38:47] Speaker 05: Yeah, it's not in the record and I'm not aware if he did that. [00:38:49] Speaker 05: Okay. [00:38:51] Speaker 05: Yeah, I don't know that. [00:38:53] Speaker 05: But I do think it's going back somewhat to Judge Pennett's point about [00:38:59] Speaker 05: the potential scope of this holding. [00:39:00] Speaker 05: I think this is an opportunity to harmonize the many circuit cases. [00:39:04] Speaker 05: I don't think there's a conflict. [00:39:06] Speaker 05: I think, for example, when you look at the Baker and Slobaugh cases, they articulate their rationale a little differently. [00:39:12] Speaker 05: Baker talks about a necessity privilege, but quite specifically doesn't talk about necessity in a broad sense, creates this subcategory of necessity just regarding the enforcement of criminal laws and addresses only necessity in that scope. [00:39:28] Speaker 05: Not surprisingly, that lands on all fours with the privilege that Slobo found in the historical record for the lawful search and arrest and the enforcement of criminal laws. [00:39:40] Speaker 05: They come to the same place. [00:39:41] Speaker 05: They're essentially describing the same privilege. [00:39:43] Speaker 05: They come at it somewhat differently. [00:39:45] Speaker 05: They both cite a similar historical record supporting that privilege, supporting the enforcement of criminal laws, and how damages that are inadvertently the result of that aren't takings. [00:39:55] Speaker 05: They might be damages, they might be subject to tort relief, they might be subject to some other kind of relief, but they're not a taking for public use. [00:40:03] Speaker 05: Similarly, the other cases, while there's language, there's some broad language when you cherry pick it out about a police power exception, every one of those cases, it's quite clear that the only police power they're talking about is the enforcement of criminal law. [00:40:17] Speaker 05: The Lee case, for example, and I think Bachman both specifically recognize the regulatory takings cases. [00:40:23] Speaker 05: They're not challenging those at all. [00:40:25] Speaker 05: Police powers in its broadest sense would include a regulatory taking, but that's not what these cases are talking about. [00:40:30] Speaker 05: These cases are only talking about the enforcement of criminal law. [00:40:34] Speaker 07: And to the extent some broader, some government claim that there is some broader police power that obviates the need for compensation, we would have no reason in this case to decide beyond at its broadest [00:40:54] Speaker 07: law enforcement generally, and at its narrowest, the reasonable apprehension of a fugitive by using reasonable means. [00:41:02] Speaker 07: Right. [00:41:04] Speaker 05: Exactly, Your Honor. [00:41:04] Speaker 05: I think that that's exactly what this case, the issue this case presents. [00:41:08] Speaker 05: And frankly, I think that all the cases we talk about in our brief, that's the only issue those cases present. [00:41:13] Speaker 05: It's really just on those fours. [00:41:15] Speaker 05: Some of them use broader language at some point of the opinion, but based on the fact of the case and what they're addressing, it's clearly that's not, the scope of the holding is much more limited. [00:41:24] Speaker 05: The Supreme Court, while it has not specifically addressed these facts, has provided the guidance for all these courts. [00:41:30] Speaker 05: The Cedar Point specifically talks about a privilege to enter and enforce criminal laws to affect arrest, which necessarily includes whatever violence is necessary to accomplish that arrest. [00:41:43] Speaker 03: Are you aware of any case, though, that in the process of entering for arrest, there was damage that was held not to be compensable under the Takings Clause? [00:41:52] Speaker 05: All the cases we cite in our brief, Your Honor, Backman, Bachman, Baker, Slobo. [00:41:58] Speaker 03: Any Supreme Court case? [00:42:00] Speaker 05: No, no, no. [00:42:00] Speaker 05: The US Supreme Court hasn't specifically addressed this issue. [00:42:03] Speaker 05: They've provided some guidance that the YMCA, the Muggler, and Cedar Point cases that the circuit courts have followed, but not specifically, no. [00:42:12] Speaker 05: They haven't specifically addressed it. [00:42:14] Speaker 05: And on that point, Your Honor, the dissent, I know the plaintiff would like to like a lot of the dissent in the Baker case. [00:42:21] Speaker 05: when the Supreme Court denied review, I think it's important to note that the Court as a whole found no issue worth its time here. [00:42:27] Speaker 07: Well, it actually wasn't a dissent. [00:42:30] Speaker 07: Right. [00:42:31] Speaker 05: It was a comment, I guess. [00:42:33] Speaker 05: A statement on denial of a writ of certiorari. [00:42:36] Speaker 05: Yeah, you're right. [00:42:38] Speaker 05: I misspoke, Your Honor. [00:42:38] Speaker 05: But yes, that's what I'm referring to. [00:42:41] Speaker 05: But the Court as a whole found no issue here worth its time, which could very well be the Court's conclusion that there's already a consensus which requires no intervention. [00:42:50] Speaker 05: Two justices thought there was some interest here, but they talk about the necessity defense in a broader sense and are maybe not interested in the more narrow issue that's actually before this court. [00:43:02] Speaker 05: But in any case, that doesn't get us anywhere. [00:43:06] Speaker 05: The court as a whole found nothing to see here. [00:43:09] Speaker 03: Have you forfeited the argument that the destruction was inevitable because the fugitive would have damaged this property? [00:43:18] Speaker 05: We haven't forfeited the argument, Honor. [00:43:20] Speaker 05: I think it's not necessary. [00:43:23] Speaker 05: The legal issue that's before the Court doesn't get there. [00:43:27] Speaker 05: I think that creates a factual issue, which we would have to get into in terms of who caused what damage. [00:43:33] Speaker 05: And to answer the Court's question before on that, the initial claim talked about extensive damage by the perpetrator, destroyed a lot of stuff in the shop. [00:43:41] Speaker 05: He described several different pieces of expensive equipment that were destroyed by the perpetrator and so forth. [00:43:47] Speaker 05: We didn't get into any of that, because that raises factual questions as to who caused what damage. [00:43:52] Speaker 05: And this was brought up on our 12-B motion. [00:43:55] Speaker 05: So it's a legal issue. [00:43:56] Speaker 05: And we just didn't want to get into the factual issue. [00:43:58] Speaker 07: But counsel, there's no dispute here that in terms of actual causation, the lobbing of the tear gas canisters, if I'm using the right term, et cetera, caused at least some of the damage that plaintiff is seeking recovery for, yes? [00:44:16] Speaker 07: That's correct. [00:44:16] Speaker 07: Yes, Your Honor. [00:44:19] Speaker 05: That's right. [00:44:20] Speaker 05: And as a result, there was no reason to get into the factual issues because the legal issue is already keyed up by the facts at hand. [00:44:27] Speaker 03: Opposing counsel's view of the legal issue is that there's a taking unless there's inevitable destruction. [00:44:33] Speaker 03: So if we were to agree with him hypothetically, it seems like this question of what damage the fugitive would have caused would be relevant. [00:44:42] Speaker 03: But maybe you forfeited an argument to that effect. [00:44:45] Speaker 05: Well, it would only be relevant if the undisputed facts could show that he caused 100% of the damage. [00:44:52] Speaker 05: If there was some damage, but not as much damage, I don't know that the inevitability, I mean, those cases usually talk about an entire building being consumed by fire. [00:45:01] Speaker 07: And again, you've just conceded that there is at least some quantifiable damage [00:45:12] Speaker 07: caused by the actions of the police. [00:45:15] Speaker 05: No, that's correct. [00:45:16] Speaker 05: And again, we're based on the allegations in the complaint, and that's clearly alleged in the complaint. [00:45:21] Speaker 05: But that's, I think, fairly obvious, yes. [00:45:25] Speaker 06: Well, Mr. Redfern, as I understand his argument, is essentially pointing us to the toxic chemicals within the tear gas canisters themselves that did the bulk of the damage. [00:45:37] Speaker 05: Well, I think he's referring to the actual, I think he's just trying to dramaticize the tear gas itself. [00:45:42] Speaker 06: Right. [00:45:43] Speaker 06: But I mean, basically it ruined the printers and the sensitive computer equipment and then got into the ceilings and so on. [00:45:53] Speaker 06: And he had to call in a hazmat team to clear out the odor and so on that it leaves behind. [00:46:00] Speaker 05: Well, as I say, if we got to that state of the case, that would be a factual question. [00:46:04] Speaker 05: His initial complaint said that the perpetrator destroyed all the equipment. [00:46:08] Speaker 05: So there was nothing left to destroy in that regard. [00:46:10] Speaker 05: But that's not really the legal issue before the court now. [00:46:14] Speaker 05: We would only get into that if the court were to reverse, and then we'd have to get back to the lower court. [00:46:20] Speaker 05: But I think the cases are fairly clear. [00:46:26] Speaker 05: His initial burden is to show that there was a taking for public use, and he hasn't met that burden. [00:46:33] Speaker 05: I think all the circuit court cases agree that under these circumstances, there is no taking. [00:46:38] Speaker 05: there's certainly damage, and there may well be a need for a legislative or administrative solution, but that doesn't justify redrafting the scope of the Takings Clause as it has been applied. [00:46:52] Speaker 06: Well, if we remanded for further factual development, even if the evidence showed that the fugitive was responsible for 25% of the damage, it still wouldn't answer the question of whether the city has to pay the remaining as the Takings Clause violation. [00:47:08] Speaker 05: Which is why we didn't raise the issue, Your Honor. [00:47:09] Speaker 05: The legal issue as to the scope of the takings clause is presented regardless. [00:47:14] Speaker 05: Yeah. [00:47:14] Speaker 06: Based on your concession that at least part of the damage, if not all of it, was caused by the tear gas projectiles. [00:47:22] Speaker 05: Well, at least some of it, Your Honor, but yes. [00:47:28] Speaker 05: I think one additional note that's worth making is that the California Supreme Court, as a matter of state law, has addressed this issue and held that as a matter of state law, [00:47:37] Speaker 05: under facts almost identical to Pena's, a third party perpetrator taking control of a commercial establishment and significant damage incurring as a result of trying to arrest an apprehend this person. [00:47:49] Speaker 05: As a matter of state law, the California Supreme Court held that there's no takings claim here. [00:47:55] Speaker 05: There is no property interest that would support a takings claim, that any recovery that might be made under state law would have to be through the Tort Claims Act insofar as there's any remedy at all. [00:48:08] Speaker 07: is based on the so-called emergency exception, yes? [00:48:11] Speaker 05: Yes, that's correct. [00:48:13] Speaker 05: But I think it's important, well, for two points. [00:48:15] Speaker 05: One is that the California Supreme Court, by referring to the Tort Claims Act, re-emphasizes that the solution to this problem should be legislative, not judicial. [00:48:24] Speaker 05: That if there's a harm here that needs to be addressed, and there's policy considerations that need to be addressed in terms of impeding law enforcement by creating this financial burden on them whenever they act, even in an emergency situation, [00:48:37] Speaker 05: versus the harm by, let me back up. [00:48:42] Speaker 05: So the problem with, in terms of policy, of imposing this sort of anytime anything gets harmed, it becomes a takings clause, a takings claim. [00:48:52] Speaker 05: Because that means that anytime the police act at all, even no matter how reasonably, there's this veneer of potential financial liability, which will inevitably change how they act. [00:49:04] Speaker 05: They will impede their ability to apprehend, [00:49:07] Speaker 05: and stop serious public hazards because there will be this financial issue covering every single action by the police. [00:49:16] Speaker 05: This was one of the things the California Supreme Court specifically talked about as one of the reasons why this was just unacceptable to make this a taking time. [00:49:28] Speaker 05: But that kind of policy consideration in terms of how much to burden the police, what kind of financial issues should be involved, that is exactly a legislative process. [00:49:36] Speaker 05: That's the kind of balancing of different policy considerations and pluses and minuses that a legislature should consider, not through judicial fiat. [00:49:46] Speaker 03: This California Supreme Court, could you just give the site to the case you're talking about? [00:49:50] Speaker 05: Yes, Customer Co. [00:49:51] Speaker 05: v. City of Sacramento, 10 Cal 4th, 368. [00:49:55] Speaker 05: It's in the last couple pages of our brief that we discussed that. [00:50:00] Speaker 03: Are you suggesting that that case [00:50:02] Speaker 03: defines the scope of property rights in California in a relevant way? [00:50:07] Speaker 05: Yes. [00:50:08] Speaker 05: Well, I'm, yes. [00:50:09] Speaker 05: Well, I'm inciting it as an additional case that came to the conclusion that there's no takings claim in this circumstance, along with all the other circuit cases. [00:50:17] Speaker 05: But I'm also saying that insofar as the takings claim, all property law is based in state law. [00:50:23] Speaker 05: There's no federal property, really. [00:50:25] Speaker 05: So in order for something to be taken, there has to be a right recognized by state law to be taken. [00:50:31] Speaker 05: And the California Supreme Court has held that under these circumstances, there isn't a property right to be taken. [00:50:37] Speaker 05: There might be a harm. [00:50:38] Speaker 05: Maybe there should be a remedy, but that's a legislative issue. [00:50:41] Speaker 05: It's not within the property rights of the owner. [00:50:50] Speaker 03: We've taken both sides over. [00:50:51] Speaker 03: Does anyone have further questions on the panel? [00:50:53] Speaker 05: Since I'm over, unless there's any other questions, I'll submit. [00:50:57] Speaker 05: Thank you. [00:50:57] Speaker 03: Thank you. [00:50:58] Speaker 03: Let's hear three minutes of rebuttal. [00:51:01] Speaker 01: Thank you, Your Honor. [00:51:01] Speaker 01: Regarding the California Supreme Court, I think that argument would basically mean that there is no more federal takings law, that anytime a state court rejects a takings claim, there wouldn't be a property right as a matter of federal law. [00:51:13] Speaker 01: Then we wouldn't have cases like First English, where the Supreme Court rejected California's property rules under the takings clause. [00:51:22] Speaker 01: So I don't think there's any way to read that as controlling the scope of the right. [00:51:26] Speaker 07: If the opposite were true, it could theoretically mean [00:51:30] Speaker 07: that a state Supreme Court could say you have no right to be free from eminent domain as a property interest. [00:51:37] Speaker 07: And so if somebody took it in a condemnation, you have no state law property interest, so you can't bring a takings claim. [00:51:44] Speaker 07: That's right, Your Honor. [00:51:45] Speaker 07: Under the Fifth Amendment. [00:51:47] Speaker 01: Correct. [00:51:49] Speaker 01: Regarding the history, vicar and slave [00:51:53] Speaker 01: Slaybaugh said that Baker's history appears to be wrong. [00:51:56] Speaker 01: Slaybaugh's history isn't really about the issue in this case. [00:51:59] Speaker 01: There's a lot of history in the case, but it's all about whether there is this law enforcement privilege. [00:52:04] Speaker 01: And we agree that there's a law enforcement privilege against trespass tort liability. [00:52:09] Speaker 01: But they don't point to anything other than Cedar Point to make that link between the private tort defense and the governmental takings immunity. [00:52:19] Speaker 01: Regarding the victim fund, Mr. Pena did look into that. [00:52:23] Speaker 01: It's only available for personal injuries, so it's not for property damage. [00:52:28] Speaker 01: And then I think that this general rule that my friend is trying to create here, it's just not what these other courts have said. [00:52:38] Speaker 01: They, over and over again, are saying that this is a broad police power exception. [00:52:42] Speaker 01: If you look at LEC, they come from Muggler, which is basically a regulatory takings case. [00:52:47] Speaker 01: Of course, the facts of LEC were that this was law enforcement, but there's no reasoning in there that's specific to law enforcement. [00:52:54] Speaker 01: They just say, as long as the state is acting for general health and welfare, [00:52:59] Speaker 01: that's gonna be outside the takings clause. [00:53:01] Speaker 01: It would be one thing if they had reasoned narrowly, and then we were trying to argue that the implications of it were broad, but they're coming from a very broad rule and saying, and we conclude that the police power is part of, or sorry, that this law enforcement action was part of the police power. [00:53:19] Speaker 01: It wouldn't have had to do that move if it was reasoning the way that my friend is arguing. [00:53:23] Speaker 01: The same thing with the Federal Circuit and Amerisaurus. [00:53:25] Speaker 01: They actually define the police power as [00:53:28] Speaker 01: the full extent of the state's power in that case. [00:53:32] Speaker 01: If they really meant that we're just talking about what law enforcement does, then they wouldn't have had that language in there. [00:53:40] Speaker 01: And I think that if we then shift gears and talk about just a law enforcement exception, then we're stuck with the history again, and there just isn't anything there to support that. [00:53:52] Speaker 01: We don't have just one case on our side in New York. [00:53:54] Speaker 01: If you look at in our brief, starting on page 48, we've got cases from New York, New Jersey, North Carolina, Georgia, Connecticut, South Carolina, and two cases from the US Supreme Court, all of which reject a necessity exception to the Fifth Amendment. [00:54:11] Speaker 01: My friend doesn't have an answer to that. [00:54:12] Speaker 01: They don't have any history at all. [00:54:14] Speaker 01: They just have this rule that they're divining from other circuits. [00:54:19] Speaker 01: And I don't think that's enough. [00:54:21] Speaker 01: under Arkansas Game and Fish. [00:54:23] Speaker 01: And I don't think that's what Justices Sotomayor and Gorsuch were asking for. [00:54:28] Speaker 03: None of those cases, though, rejected a necessity of criminal law enforcement like this, right? [00:54:36] Speaker 01: No. [00:54:36] Speaker 01: But I think that the explanation for that is that in the 19th century, criminal law enforcement activity wasn't causing tons of damage. [00:54:45] Speaker 01: The things that caused lots of damage were military actions and firefighting. [00:54:49] Speaker 01: And when those cases went to litigation, the plaintiffs were winning if they could satisfy inevitable destruction and things like that. [00:54:57] Speaker 01: Bishop Macon, Georgia in the 1840s was not dictated. [00:55:03] Speaker 01: That's a case where the plaintiff won on one of these claims. [00:55:06] Speaker 01: And my friend doesn't have an answer to those cases. [00:55:08] Speaker 01: I think those are the closest cases. [00:55:14] Speaker 03: Thank you both sides for the helpful arguments in this very difficult case. [00:55:18] Speaker 03: And thank you again for appearing despite the tragic circumstances going on in LA. [00:55:24] Speaker 03: Our thoughts go out to everyone who's affected. [00:55:26] Speaker 03: Thank you all very much. [00:55:29] Speaker 03: We are done for the day, so we are adjourned. [00:55:32] Speaker 03: Thank you. [00:55:33] Speaker 00: Thank you. [00:55:33] Speaker 00: Thank you, Arne. [00:55:35] Speaker 02: This card for this session stands adjourned.