Breaking Down Baker: The Takings Clause, Law Enforcement, and the Need For a New Framework

Megan Friner

The Takings Clause of the Fifth Amendment was designed to strike a delicate balance between the government’s authority to act in the public interest and the protection of individual property rights. Courts have faced challenges in determining how the Takings Clause applies to instances of physical destruction of property, particularly when such destruction occurs outside the traditional processes of eminent domain. While most takings are generally assessed under a fact-specific balancing framework, recent cases involving physical destruction by law enforcement have relied on outdated exceptions—police powers and necessity—to shield governments from liability. These exceptions, when misapplied, distort the historical understanding of the Takings Clause and leave property owners uncompensated for substantial losses.

This Comment argues that neither the necessity nor the police powers exceptions should serve as categorical exemptions in cases involving physical destruction, such as law enforcement’s intentional demolition of private property. Instead, courts should adopt a flexible framework rooted in the principles of Penn Central Transportation Co. v. New York City. Applying Penn Central’s balancing test would account for the unique harms posed by law enforcement destruction while preserving the government’s ability to act in the public interest. This approach ensures that the Takings Clause fulfills its constitutional purpose without being undermined by outdated or overly broad interpretations of common law doctrines.

Part I outlines the historical foundations and purpose of the Takings Clause, distinguishing between physical and regulatory takings as established in Supreme Court precedent. Then, it examines the traditional exceptions to the Takings Clause—police powers and necessity—and their application in historical and modern contexts. Finally, it discusses Baker v. City of McKinney, as a case study highlighting the challenges courts face when addressing property destruction by law enforcement. Part II critiques the application of these exceptions in cases like Baker, arguing that their expansion conflicts with historical precedent and modern jurisprudence on physical appropriations. Finally, this Comment argues that Baker and similar cases require a more nuanced framework, and proposes the adoption of the Penn Central balancing test to better address law enforcement destruction claims.