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Court rules owners must pay when police destroy property

By Phillip Bantz, South Carolina Lawyers Weekly

Law enforcement officers needn’t worry about paying for property they damage in the line of duty, according to a novel decision that divided the South Carolina Supreme Court and left a pair of business owners holding the bag after police bulldozed their convenience store.

The issue of whether officers or their employers have to pay for damage to private property has split courts throughout the country. But the majority of jurisdictions have decided that compensation is unnecessary.

The Palmetto State joined the majority on Aug. 31, when its high court held in a 3-2 decision in Carolina Convenience Stores, Inc. v. City of Spartanburg that under the state constitution a compensable taking does not occur when police destroy property while doing their jobs.

Chief Justice Costa Pleicones wrote in the majority opinion that “we are persuaded that the framers of the Constitution did not intend that law enforcement operate under the fear that their actions could lead to takings-based liability.”

The decision stems from Spartanburg police officers’ decision to drive a bulldozer through the wall of a convenience store to rescue one of the owners, Saroj Patel, while she was being held hostage. The city later demolished the building.

“This case was about saving a life. The police had been told that if they didn’t get in there immediately that this man would make good on his threats and kill this woman,” said the city’s attorney, David Morrison of Columbia.

“If it were my daughter in that building I wouldn’t want the police to make a financial decision in determining whether to save her life,” he added. “They didn’t have time to weigh the pros and cons and consider the consequences”

Justice Kaye Hearn contended in her dissent that a taking had occurred when police bulldozed the store, because their actions served the public use of apprehending a dangerous hostage taker.

Hearn wrote that the majority decision “marginalizes the rights of property owners protected by our constitution” and that that a “faithful interpretation of our constitution demands compensation for the innocent individual.”

“While I recognize law enforcement officers should be applauded for the acts they undertake in the interest of public safety,” she added, “it should not be at the expense of the constitutional right of an innocent property owner to be justly compensated when property is taken for a public use.”

Justice John Kittredge emphasized in a separate dissent that allowing the owners to move forward with their inverse condemnation claim against the city would have a “very limited reach” due to the “rare situation” that gave rise to the case.

Kittredge added that he would allow the claim to proceed “while acknowledging the overwhelming majority of law enforcement actions would not give rise to a constitutional takings claim.”

An attorney for the owners, Charles Hodge of the Hodge & Langley Law Firm in Spartanburg, said his clients were considering filing a petition for a rehearing or asking the U.S. Supreme Court to hear the case.

“We think the dissents are strong enough [to show] that the innocent property owners were denied justice,” Hodge said.

He’d told the state Supreme Court that it was unconstitutional to force his clients to “bear the entire cost of their business being bulldozed to the ground for the public good of law enforcement.”

The Supreme Court’s decision in favor of the city affirmed but also modified a 2012 Court of Appeals opinion, which held that the store’s destruction was a legitimate exercise of police power, meaning that no compensation was due.

But Pleicones determined that it was unnecessary to delve into the issue of police power because the damage the officers did to the building did not qualify as a compensable taking under the state constitution.

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