8

Let's say I rent out a house to someone who I don't know, but turns out to be a terrorist using a false identity. The government raids the house, there is a fight, and my house is destroyed. Can I claim compensation from the government for destroying my house? Can I do it even if it is a foreign government conducting the raid?

2
  • Do you think it would make a difference if it was actually your tenant that destroyed the house, and that the destruction was an entirely disproportionate response by your tenant to the perceived threat against them?
    – brhans
    Feb 5, 2022 at 15:59
  • @brhans that's not a direction I want to take this question in. I'm deleting the offending sentences as a result.
    – Allure
    Feb 5, 2022 at 16:06

4 Answers 4

15

In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment.

In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case.

But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing.

Update: The Fifth Circuit overturned the district court in the McKinney case. It cited the "necessity" doctrine. Apparently, despite the above facts, Baker's side admitted that "it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons." However, the court seemed very sympathetic to Baker, even going so far as to say:

As a lower court, however, it is not for us to decide that fairness and justice trump historical precedent, particularly Supreme Court precedent, where it has long recognized a necessity exception that excludes those like Baker from the protection of the Fifth Amendment’s Takings Clause. Such a decision would be for the Supreme Court alone.

I don't know whether this will be appealed to the Supreme Court, but based on that, the circuit court seems to want it to be.

The case is being remanded and not dismissed; perhaps to see whether she can still pursue relief under the Texas constitution.

10
  • I wonder if you have the appropriate house insurance that rebuilds the house if the insurance company could sue the government for damages?
    – Neil Meyer
    Feb 7, 2022 at 19:45
  • 1
    @NeilMeyer Legally they couldn't win if you couldn't win, although they might be able to afford better lawyers.
    – D M
    Feb 7, 2022 at 20:45
  • It could be that Baker was a 4th Amendment case rather than a 5th Amendment case (i haven't checked). The 4th Amendment protects you not only from searches and seizures made without probable cause, but also from searches and seizures conducted in an objectively unreasonable manner. The 5th Amendment takings clause, in contrast, at issue is Lech is a strict liability concept when it applies at all, regardless of reasonableness. But, turns out, it is state 5th Amendment and state takings clause case (not the way I would have pleaded it, but whatever). The 5th and 10th circuits disagree.
    – ohwilleke
    Feb 9, 2022 at 16:49
  • 1
    @ohwilleke "In the present case, Baker alleges a violation of her Fifth Amendment rights, made binding on the states via the Fourteenth Amendment."
    – D M
    Apr 3, 2022 at 16:52
  • 2
    @ohwilleke 5th Circuit ruling: District court is reversed.
    – D M
    Oct 14, 2023 at 3:57
6

You can sue the US federal government under the Federal Tort Claims Act. The core provision of that act is §2674 which holds that "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages". There are exceptions listed in §2680, and other provisions for suing the feds are in §1346.

At the very minimum, the government would have to be "at fault" – there is no provision of the law that says "whenever something bad happens and the government is involved, the government is deemed to be at fault". Given the general nature of the question, the first thing to do would be specify what wrong the government had committed. Then, check if this is covered by an exemption.

Of course, if you want to sue the Canadian government for conducting the raid (in Canada), you'd consider Canadian law, likewise suing the gov't of Somalia for a raid in Somalia. The US does have a law that waives sovereign immunity which allows a person to sue the US government, but as far as I know, Somalia has not waived sovereign immunity.

5

If the government agrees, yes

Governments have sovereign immunity if they are your government or state immunity if they are a foreign government.

In essence, these doctrines are that a state is not liable for any acts or omissions unless it agrees that it is. The agreement can be general in that the state has enacted a law that says it is in certain circumstances for sovereign immunity or it has entered a treaty in which it agreed to be sued in a foreign jurisdiction for state immunity. Or it can be specific such that even though they have no legal obligation to pay for your house, they do so anyway.

Many governments have waived sovereign immunity in a wide range of situations and this usually takes one of two forms:

  1. A schedule of specific events that attract compensation, the maximum amount and the administrative procedure for dealing with specific cases.
  2. An agreement that it can be liable for certain wrongs (e.g. torts) and be liable just like everyone else is for those.

For the circumstances you describe, assuming the government followed its own laws which permitted it to destroy the property, there would not normally be an exception to sovereign immunity. State immunity is also likely to apply because a) you don’t drop bombs on countries you have treaties with or b) if you do, you are doing it with the host nation’s permission.

4

In , yes.

In Germany, if some government agency, and specifically the police, damage your property, you are in principle entitled to be recompensed.

The exception is if you are a "responsible person" ("Verantwortlicher" or "Störer"), that is if you are responsible for the problem that the police was trying to address - then the damage is on you.

  • For example, if you try to run from the police in your car, and the police damage your car while stopping you, you would not be entitled to recompense, because you are responsible for the police action by not complying with their lawful demand to stop.
  • On the other hand, if the police damage your home during a search, but you are later exonerated or charges are dropped, then you will be entitled to compensation, as the search was not your fault.

In addition to that, the rules for compensation are more generous if the police or government action was not lawful - in that case even a responsible person may be entitled to compensation.

The idea behind these rules is that by suffering the negative consequences of a lawful government action, the affected person is performing a "Sonderopfer" ("special sacrifice") in the interest of the public, so the public (i.e. the state) should compensate them.

For details, see e.g. Entschädigung nach dem Polizei- und Ordnungsrecht.

Can I do it even if it is a foreign government conducting the raid?

That is a more complicated question. Generally, a foreign government would not be authorized to conduct a raid in Germany. However, if they do, you would probably have to sue the foreign government under their laws, due to the concept of state immunity - but that is a different question :-).


As an illustration, here is a case from 2022 where police accidentally raided the wrong apartment. The article notes that

The [apartment] door, which the police broke down, was repaired provisionally. It will be properly repaired at the authorities' charge, the police said.

Article (in German): Essen: Polizei stürmt Wohnung, allerdings die Falsche (Essen: Police raids apartment, but gets the wrong one).

1
  • 1
    as a side note: Police has a rather huge bill for replacing locks to flats they have opened under warrents.
    – Trish
    Feb 9, 2022 at 10:27

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .