When the taking itself is just compensation.

• Author: Strahilevitz, Lior J.
• Position: Oklahoma

Sullivant v. City of Oklahoma City, 940 P.2d 220 (Okla. 1997).

Litigation often arises out of a bizarre sequence of events. Sullivant v. City of Oklahoma City(1) is not one of those cases. In Sullivant, the Oklahoma Supreme Court considered whether an activity in which police officers routinely engage constituted a taking under the Oklahoma Constitution. During 1994, the Oklahoma City police learned that an individual was trafficking in illegal drugs. The police obtained a warrant and, in the process of searching the man's apartment, damaged an outer door and two interior doors. The police obtained evidence of drug activity and arrested the tenant. The landlord, Howard Sullivant, then sued the city, seeking $718 in damages for the cost of repairing the doors.(2) By a vote of five to four, Oklahoma's high court affirmed the trial court's decision to reject Sullivant's takings claim.(3)

This Case Note argues that the court correctly denied compensation, but that it nevertheless should have held that a taking had occurred. The court should have reached this paradoxical result by holding that actual economic benefits accruing to property owners as a direct result of police actions offset payments due under a just compensation analysis.

I

Four other state courts have recently considered takings cases arising from police action under their states' constitutions.(4) Each court interpreted its state takings clause differently. In Texas, the court reasoned that where police power was exercised "for the safety of the public," innocent third parties should be constitutionally entitled to compensation, unless a "great public necessity" had forced the state to damage the property.(5) The Minnesota court found that a taking had occurred and awarded compensation, rejecting the "public necessity" defense as a matter of law.(6) The California court held, over a vigorous dissent, that when police damaged property in an emergency situation, no compensation was required.(7) The fourth case, which arose in New Jersey,(8) involved facts almost identical to Sullivant's. A state superior court held that the government should bear the costs because the damage had been incurred for the benefit of the public.(9) This result, it reasoned, followed from the U.S. Supreme Court's analysis in National Board of YMCA v. United States.(10)

In YMCA, the Supreme Court articulated a "particular intended beneficiary" test for determining whether compensation was owed under the Fifth Amendment.(11) Under the test, when a "private party is the particular intended beneficiary of the governmental activity, fairness and justice do not require that losses which may result from the activity be borne by the public as a whole, even though the activity may also be intended incidentally to benefit the public."(12) The dictum that followed has fascinating implications for Sullivant: "Were it otherwise, governmental bodies would be 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."(13) The obvious corollary of the Court's reading of the Takings Clause is that damage resulting from a police attempt to apprehend drug dealers constitutes a compensable taking when the particular intended beneficiary of the action is the public as a whole.

Yet, the Sullivant court, in adopting California's approach to police-induced damages,(14) held that because the damage to Sullivant's doors was a "necessity in order to protect the health or safety of the public,"(15) it was not compensable under the Oklahoma Constitution's takings clause. Can the federal and state takings clauses, so similar in wording,(16) mean completely different things?(17)

II

The conflicting interpretations of the state and federal takings clauses stem in part from ambiguity over the nature of police action and from the limitations of YMCA's particular intended beneficiary test. That test forces courts to decide whether the police were primarily motivated by a desire to create public benefits or private benefits. Using the type of police activity as a proxy for police intent, as courts have frequently done, can lead to curious results. For instance, the YMCA dictum indicates that individual homeowners are the primary intended beneficiaries of police actions to apprehend burglars in private homes.(18) Yet, if police respond with massive force to catch a notorious burglar who has been terrorizing a city, such a conclusion is not self-evident. Along these lines, the Sullivant court, in holding that "public necessity" forced the...