Wegner v. Milwaukee Mutual Ins. Co. (a.k.a. tear gas house)

Wegner v. Milwaukee Mutual Ins. Co.
479 N.W.2d 38 (Minn. 1991)

Justice Tomljanovich delivered opinion

Facts:

• Minn. police staking out house to apprehend two suspected felons believed to be coming to sell narcotics
• Before arrest could be made suspects fled in car, which abandoned to escape on foot after a high speed chase
• One suspect entered house of Harriet G. Wegner and hid in her front closet
• Wegner fled house and called police
• Police arrive to surround house and called for an "Operation 100"
• Op. 100 = calling the ERU (Emer. Res. Unit - read: SWAT team)
• Tried to make contact w/ suspect inside home via bullhorn and telephone
• When that wasn't successful, police shot at least 25 rounds of tear gas into house, breaking virtually every window in house in process
• Also threw in 3 "flash-bang" grenades to confuse suspect
• Eventually suspect caught trying to escape through basement window

Issue:
Does the city's admittedly legitimate police power result in a "taking" as defined in Article I, section 13, of the Minn. Constitution?

Note: Minn. Cons. section reads as follows: "Private property shall not be taken, destroyed or damaged for public use without compensation, first paid or secured." (Purpose of clause is to ensure private landowners are compensated not only for physical invasion of their property but also damages caused by the state where no physical invasion has occurred.)

Holding: No, not fair to allocate the entire risk of loss to an innocent homeowner for the good of the public.

Reasoning:

• City contends there was no taking for public use because police used legitimate power
• police power is indefinable
• Simply labeling actions of police as an exercise in power doesn't justify disregard constitutional inhibitions
• Minn. Sup. Ct. looked at "plain meaning" of article

Court says:

• Constitution itself is auth for compensation for des. of prop. and is a waiver of govt. immunity
• Clear police intentionally fired tear gas and grenades into house
• Resulting damage by police in course of apprehending suspect was for a public use w/in meaning of Const.
• Restatement (Second) of Torts section 196 describes doctrine as follows: "One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster..."
• Ct. not inclined to allow the city to defend its actions on the grounds of public necessity
• Better rule is for municipality to compensate innocent party for resulting damages using the basic notion of fairness and justice
• City must reimburse Wegner for losses sustained
• individual officers were acting in public interest, cannot be held individ. liable
• cost of damages should be paid by citizens of city

Judgment: Reversed and remanded for trial on issue of damages

Opinions: N/A

Thoughts: Court of Appeals rvwd McCoy v. Sanders, GA case when "taking" was limited to physical interference; Minn. Sup. Ct. stated never held that Minn. Const. art. I, section 13 is to be applied in this manner.