Customer Co. v. City of Sacramento , 10 Cal. 4th 368 ( 1995 )

Opinion

GEORGE, J.

A felony suspect, reputed to be armed and dangerous, took refuge in a store and refused to surrender. In the course of apprehending the suspect, the police fired tear gas into the store, causing extensive property damage. The issue we address is whether the owner of the store may bring an action for inverse condemnation against the public entities that employed the law enforcement officers, on the theory that the damage caused by the officers constituted a taking or damaging of private property for public use within the meaning of the “just compensation” clause of the California Constitution. (Cal. Const., art. I, § 19.)

For the reasons that follow, we hold that an action for inverse condemnation does not lie in the present case to recover damages caused by the efforts of law enforcement officers to enforce the criminal laws. As we shall explain, under the circumstances presented here the public entities involved may be held liable, if at all, only in a tort action filed pursuant to the Tort Claims Act. (Gov. Code, § 810 et seq.)

I

In October 1987, Customer Company (Customer) sued the City of Sacramento (City) and Sacramento County (County), alleging numerous causes of action, including inverse condemnation and negligence. Customer alleged that on June 22, 1987, police officers and deputy sheriffs “caused a criminal suspect to hide” in Rogers Food and Liquor store, which is owned and operated by Customer, and caused extensive damage to the store and its contents in their efforts to capture the suspect.

In a series of rulings, the superior court granted judgment on the pleadings in favor of City and County. As to the negligence cause of action, the superior court ruled that City and County were immune from liability pursuant to Government Code section 820.2, which provides immunity to public entities for their employees’ acts and omissions resulting from “the exercise of . . . discretion” by the employee. As to the inverse condemnation cause of action, the court ruled that, as a matter of law, “the action[] of the police . . . was a proper exercise of the police power to protect the public health, safety and welfare.” Customer appealed, and the Court of Appeal affirmed the judgment. Customer sought, and was granted, review in this court solely on the inverse condemnation issue.

Following oral argument, we requested supplemental briefs addressing the issue whether Customer would be entitled to relief under the Tort Claims Act (Gov. Code, § 810 et seq.). In its supplemental brief, Customer expressly “waived the right to relief under the Tort Claims Act.”

II

As acknowledged by Customer in its opening brief, the facts of the present case are undisputed. Christopher Nash was wanted for a series of armed robberies. On June 19, 1987, police officers spotted Nash, who was reputed to be armed and “extremely dangerous,” driving a stolen automobile with “switched” license plates. Confidential informants had related that Nash “always” carried a .380-caliber semiautomatic pistol and had said “he wouldn’t be taken alive, and he would shoot it out with police officers.” Nash apparently became aware of the officers’ presence, accelerated and began making numerous lane changes, eventually eluding the officers.

At approximately 8 a.m. on June 22, 1987, Deputy Sheriff Larry Chapman, dressed in plain clothes and driving an unmarked vehicle, was conducting a surveillance of Nash’s home when Nash and his girlfriend, Violet Nelson, emerged from the residence, entered the stolen automobile, and drove off. Deputy Chapman followed and requested assistance, intending to stop the vehicle once other officers arrived to assist him. He did not inform the dispatcher that this was a covert operation. Before such assistance arrived, Nash drove into the parking lot of Rogers Food and Liquor store, parked the vehicle, and entered the store with Nelson. Deputy Chapman radioed a message that Nash had entered the store. The deputy then parked on the street and waited for assistance to arrive, intending to arrest Nash when he left the store.

Shortly after 8:30 a.m., four City police officers in plain clothes and driving unmarked vehicles joined the surveillance of Nash’s vehicle in the parking lot of Customer’s store. But when a marked police vehicle and a marked sheriff’s vehicle with its emergency lights flashing drove into the parking lot in response to the call for assistance, the officers concluded Nash must have become aware of their presence and, fearing he might escape through a rear exit, surrounded the building. Nash did attempt to flee through a rear exit but, upon seeing law enforcement officers, reentered the store.

Using the public address system in one of the police vehicles, the officers ordered everyone to vacate the store. The store clerk, Felipe Valverde, and Nash’s girlfriend, Nelson, left the store, but Nash did not. Valverde stated that no one except Nash was inside the store and provided information about the premises, including the number and locations of the exits to the building and the telephone number inside the store. Nelson was arrested and confirmed that Nash was inside the store. She stated there were two firearms in his vehicle but asserted he was unarmed. A .380-caliber automatic handgun and a shotgun with the stock sawed off later were seized from the stolen vehicle Nash had been driving. The police remained concerned that Nash might be armed, despite Nelson’s statement to the contrary. As one officer stated: “You can’t believe the [veracity] or the truthfulness of any person under those conditions, especially if it’s the girlfriend talking to her boy friend. Of course she’s going to say he’s unarmed.”

Additional law enforcement personnel were called to the scene. The police stopped traffic and evacuated the area around the store so that, if there were gunfire, no bystanders would be injured. Ambulances and fire department units were summoned and asked to stand by.

Several more requests for Nash to surrender were made, using the police vehicle’s public address system. Nash made no response and was not visible inside the store. The police department’s special weapons and tactics (SWAT) team was summoned.

Police officers continued their efforts to convince Nash to surrender. A trained negotiator attempted to telephone Nash and used a loud hailer, or megaphone, to direct Nash to answer the telephone. But Nash did not do so, and the telephone inside the store later ceased operating. The negotiator then attempted for an hour or two to communicate with Nash using a loud hailer, but Nash did not respond.

The store clerk stated there was a listening device inside the store, which revealed sounds of movement inside the premises. Gas masks were distributed to the officers surrounding the building, and the store’s utilities were shut off.

Shortly after 11 a.m., Lieutenant George Mijares determined that further efforts at negotiation were futile and instructed the SWAT team to employ tear gas. Lieutenant Mijares explained: “I saw no need to wait any longer at that point. We had about thirty or forty police personnel tied up in this operation. Major traffic jam in the area. We had the people out of the store, and I saw absolutely no benefit in waiting any longer because every effort we had made had no beneficial result. There was no response whatsoever from the store .... It was plain to me that he was not going to communicate with us . . . .” Lieutenant Mijares estimated that “maybe 70 percent of the day shift” was present at the scene. He explained as follows his reasons for ordering the use of tear gas: “What we wanted to do was deploy tear gas, which would force Nash to come out. He would come out, be confused, his senses would be impaired. The information [we had was that] he’s armed and dangerous, so if he was going to be involved in a fire fight, he would be most inaccurate and generally the suspect[s] come out even without their weapons after being [a]ffected by tear gas. So it was the safest way to do it for everybody concerned.” Assistant Chief of Police for the City of Sacramento, Jerry Finney, further noted: “Even if tear gas should not induce voluntary surrender of an armed suspect, then it reduces the suspect’s ability to offer armed resistance to SWAT officers as they enter the building or premises.”

Lieutenant Matthew Powers, who at the time of the present incident was a sergeant and one of the City’s two SWAT team leaders, described as follows the reasons for the decision to employ tear gas: “a) Nash was believed to be armed and also using ‘crank’, which is a street name for amphetamines. Suspects using crank often exhibit paranoid, erratic behavior. [¶] b) Waiting Nash out did not appear a viable alternative, because he was barricaded in a convenience store containing extensive provisions. In short, he would not be soon starved out. And, attempts to negotiate had proved futile. [¶] c) I would not want my officers entering the store without first introducing tear gas, because the suspect had an excellent field of fire at any approaching officer due to the physical characteristics of the store. He could easily see out without disclosing his location, and we could not see clearly the interior of the store. If he were behind the coolers, then the coolers would offer him excellent concealment and, at the same time, afford him an excellent field of fire over the interior of the store and the outside approach to the store. [¶] d) There was no cover to utilize while rushing or approaching the store front. [¶] e) We ruled out entries through the roof because the store had a drop ceiling. Any officer making entry through the roof would probably disclose his location, inviting fire, and yet, until fired upon, have no idea of suspect Nash’s location.”

The SWAT team fired three rounds of tear gas into the store and ordered Nash to surrender, but he failed to emerge from the building. After a few minutes, more tear gas was fired into the store and Nash again was ordered to leave the building. When Nash did not appear, additional tear gas was fired into the store and, approximately 30 minutes after the first tear gas canister was fired, members of the SWAT team entered and searched for Nash, without success.

Having determined that Nash was not on the ground level of the store, the SWAT team fired several rounds of tear gas into the attic. Shortly after noon, a SWAT team member saw a vent move on the roof of the store. A short time later, mace was sprayed into some attic vents.

At 1:15 p.m., nearly five hours after Nash first was ordered to leave the building, members of the SWAT team reentered the store and located Nash hiding in the attic, “burrowed under insulation.” Apparently the gas had “rendered him unable to offer resistance,” and he was arrested and placed into a patrol vehicle, where he collapsed. He was transferred to an ambulance and taken to a medical center for treatment.

Damage to the store included numerous broken windows, wall mirrors, and acoustical ceiling panels. The store’s entire inventory of food and other merchandise had been contaminated with tear gas. An environmental consulting firm hired by Customer determined the tear gas that had been used constituted an “extremely hazardous” toxic substance as defined by title 22 of the former California Administrative Code (now the California Code of Regulations), requiring “very specific disposal techniques” for all contaminated items. With the exception of liquids in sealed containers, which were discharged into the sewer system upon governmental approval being obtained and applicable fees being paid, the contaminated items were shipped to, and deposited in, the class I hazardous waste dump located in Casmalia, California. The total property damage exceeded $275,000, which (among other components) included nearly $90,000 in contaminated inventory, approximately $150,000 to dispose of this hazardous waste, and over $18,000 to repair the building and fixtures.

An expert witness opined that an excessive amount of tear gas had been employed. This expert estimated that four to six canisters “would probably [have been] adequate,” rather than the twelve or thirteen canisters used. There was no evidence, however, that the damage to the store and its merchandise would have been less had only four to six canisters of tear gas been used. To the contrary, several witnesses stated that, in order to be effective, sufficient tear gas must be employed to permeate the entire area that is accessible to the suspect. The evidence indicates that the store’s merchandise was contaminated, requiring its disposal as toxic waste, as soon as the first round of tear gas canisters suffused the store with gas.

III

The context of the present case is familiar: Customer is seeking to recover from City and County for property damage caused to its store by the actions of public employees in the performance of their public duties. What is unusual is the means chosen by Customer to obtain such relief. Customer has abandoned its cause of action for negligence under the Tort Claims Act (Gov. Code, § 810 et seq.), now contending solely that it has a constitutional right to obtain recovery from the public entities under an inverse condemnation theory.¹ As we shall explain, we conclude that the facts of this case do not support an inverse condemnation claim under the applicable provision of the California Constitution.²

Article I, section 19, of the California Constitution (section 19) provides: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.”

As is made clear by the text of this constitutional provision, read as a whole, the “just compensation” clause is concerned, most directly, with the state’s exercise of its traditional eminent domain power, guaranteeing that when the state proposes to take private property for public use, the owner of the property promptly will receive just compensation.³ And, as the words suggest, an “inverse condemnation” action may be pursued when the state or other public entity improperly has taken private property for public use without following the requisite condemnation procedures—as when the state, in constructing a public project, occupies land that it has not taken by eminent domain, or when the state takes other action that effectively circumvents the constitutional requirement that just compensation be paid before private property is taken for public use.⁴

Although the requirement of “just compensation” has been extended, in limited circumstances—beyond its traditional context involving the taking or damaging of private property in connection with public improvement projects—to encompass government regulations that constitute the functional equivalent of an exercise of eminent domain,⁵ section 19, contrary to Customer’s suggestion, never has been applied to require a public entity to compensate a property owner for property damage resulting from the efforts of law enforcement officers to enforce the criminal laws.

Customer’s argument that it may bring an action for inverse condemnation is based upon a literal (and overly simplistic) interpretation of section 19— an assertion that its property was “damaged for public use” within the meaning of that constitutional provision. But section 19 never has been applied in a literal manner, without regard to the history or intent of the provision. As Justice Oliver Wendell Holmes observed regarding the analogous provision of the Fifth Amendment to the federal Constitution: “[T]he constitutional requirement of compensation when property is taken cannot be pressed to its grammatical extreme . . . (Tyson & Brother v. Banton (1927) 273 U.S. 418, 445-446 [71 L.Ed. 718, 729, 47 S.Ct. 426, 58 A.L.R. 1236] (dis. opn. of Holmes, J.).)

As is demonstrated by both the history and the consistent judicial interpretation of section 19, that provision never was intended, and never has been interpreted, to impose a constitutional obligation upon the government to pay “just compensation” whenever a governmental employee commits an act that causes loss of private property. Instead, as we shall see, the addition of the “or damaged” language in the California “just compensation” provision simply was designed to expand the circumstances in which a private property owner may recover when the state takes property for a public use, or when the state’s construction of a public work causes damage to adjacent or nearby property owners. Neither the “taken” nor the “or damaged” language ever has been extended to apply outside the realm of eminent domain or public works to impose a Constitution-based liability, unamenable to legislative regulation, for property damage incidentally caused by the actions of public employees in the pursuit of their public duties. On the contrary, such property damage, like any personal injury caused by the same type of public employee activity, has—throughout the entire history of section 19—been recoverable, if at all, under general tort principles, principles that always have been understood to be subject to the control and regulation of the Legislature.

The original version of our state’s just compensation provision, contained in the California Constitution of 1849, applied only to private property that had been “taken for public use.” (Cal. Const, of 1849, art. I, § 8.) The federal Constitution contains identical language. As one commentator has observed regarding the federal constitutional provision: “The most historically settled application of the Just Compensation Clause—indeed perhaps the only historically settled application—is the requirement that government must pay for property it seizes through an exercise of eminent domain. . . . Most of the original American state constitutions contained no compensation clause, and uncompensated seizures of property for public roads and other uses were not unusual in eighteenth-century America. While the legislative history of the Compensation Clause is sparse, on one point there is no historical doubt: from the beginning of the republic to the present, the ‘sacred principle of compensation' has always been understood paradigmatically to express the state’s obligation to indemnify owners of property taken through an assertion of eminent domain.” (Rubenfeld, Usings (1993) 102 Yale L.J. 1077, 1081-1082, italics in original, fns, omitted.)

The California Constitution of 1879 added the phrase “or damaged” to the just compensation provision (Cal. Const., art. I, former § 14), but this change was not intended to expand the scope of the constitutional compensation provision beyond the ambit of eminent domain and public improvements. It appears, instead, that the words “or damaged” were added to clarify that the government was obligated to pay just compensation for property damaged in connection with the construction of public improvements, even if the government had not physically invaded the damaged property. (See generally, 2 & 2A Nichols on Eminent Domain (3d ed. 1990) §§ 6.22-6.26, pp. 6-157 to 6-190 [reviewing origin of “or damaged” clauses in various state constitutional provisions].)

Under the California Constitution of 1849, as at common law, the owner of property taken for a public use was entitled to compensation only if the government physically had invaded the property. (Reardon v. San Francisco (1885) 66 Cal. 492, 498-500 [6 P. 317].) A review of the debates at the Constitutional Convention of 1878-1879 reveals that the discussion of this aspect of the just compensation provision centered upon whether a physical invasion of the property would be a necessary predicate to the compensation required in this context. A proponent of adding the words “or damaged” to the just compensation provision explained his reasons as follows: “In some instances a railroad company cuts a trench close up to a man’s house, and while they do not take any of his property, it deprives him of the use of it to a certain extent. This was brought to my notice in the case of the Second street cut in San Francisco. There the Legislature authorized a street to be cut through, which left the houses on either side high in the air, and wholly inaccessible. It was destroyed, although none of it was taken or moved away. There are many such cases, where a man’s property may be materially damaged, where none of it is actually taken.” (3 Debates & Proceedings, Cal. Const. Convention 1878-1879, p. 1190.)

It seems apparent that the addition of the words “or damaged” to the 1879 Constitution was intended to clarify that application of the just compensation provision is not limited to physical invasions of property taken for “public use” in eminent domain, but also encompasses special and direct damage to adjacent property resulting from the construction of public improvements. There is nothing that indicates the provision was intended to expand compensation outside the traditional realm of eminent domain, or to require the payment of just compensation for damage caused by the government’s efforts to enforce the criminal laws.

Furthermore, the expansive interpretation of section 19 proposed by Customer is uniformly refuted by governing California authorities. In Reardon v. San Francisco, supra, 66 Cal. 492, the construction of a sewer in the street fronting the plaintiffs’ property had compacted the soil, causing “displacement and destruction of the foundation” that had supported the plaintiffs’ houses. This court, examining for the first time the addition of the words “or damaged” to the just compensation provision, concluded that the former requirement of a physical invasion of the property thereby had been eliminated: “If the word ‘damaged’ only embraced physical invasions of property, the right secured by this word would add nothing to the guaranty as it formerly stood.” (Id. at p. 501.) Accordingly, the government was required to compensate the property owners for the consequential damage caused by the public improvement, despite the circumstance that there had been no physical invasion of the plaintiffs’ property. (Id. at p. 506; Tyler v. Tehama County (1895) 109 Cal. 618, 625 [42 P. 240].)

In Brown v. Board of Supervisors (1899) 124 Cal. 274 [57 P. 82], compensation was denied to the owners of property abutting a public street that had been substantially narrowed, allegedly resulting in a diminution in the value of the plaintiffs’ property. This court made clear that the addition of the words “or damaged” in the just compensation provision had not expanded that guarantee to include compensation for any and all damage to property: “The provision in the constitution [guaranteeing compensation for property ‘damaged’ for public use] invoked by the [plaintiffs] was inserted therein to provide for instances in which property was not taken from the possession of the owner, or into physical occupancy by the public, and applies only to such damages as may be recoverable under established rules of law. The damage which the [plaintiffs] may sustain by reason of a diminution in value of their lands is not damage for which they are entitled to compensation. [Citations.]” (Id. at p. 281, italics added.)

This court again narrowly interpreted the words “or damaged” in Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622 [163 P. 1024]. After repeating the general rule that damages resulting from a valid exercise of the state’s police power are damnum absque injuria (i.e., a loss not giving rise to a cause of action),⁶ this court observed: “[W]hile it is unquestionably true that the addition of the word ‘damaged’ to our constitutional law governing the exercise of the right of eminent domain gives in many instances a right to compensation which did not formerly exist, it did not, touching the exercise of the police power, give a right of action for damages which theretofore were damnum absque injuria.” (Id. at pp. 640-641.)

In the 115 years since the words “or damaged” were inserted into the just compensation provision, that guarantee never has been expanded in the manner proposed by Customer. In Miller v. City of Palo Alto (1929) 208 Cal. 74 [280 P. 108], the plaintiff’s property was destroyed as a result of a fire caused by the city’s allegedly careless disposal of incinerated garbage. The plaintiff sought damages from the city on two theories, negligence and inverse condemnation. Our court rejected the negligence action on the basis of the then existing doctrine of sovereign immunity, which barred such a tort action against the city. We then turned to the inverse condemnation claim, which rested upon a theory similar to Customer’s contention in the present case—namely that the plaintiff’s property had been “damaged” by an activity of the public entity conducted for the public benefit. The court in Miller unanimously rejected this contention in no uncertain terms: “There is no merit in appellants’ contention that the injury of which they complain constitutes a taking of private property for public use. A public use is ‘a use which concerns the whole community as distinguished from a particular individual or a particular number of individuals; public usefulness, utility or advantage; or what is productive of general benefit; a use by or for the government, the general public or some portion of it.’ [Citation.]” (Id. at p. 77.)

The holding in Miller—that damage caused by the negligent conduct of public employees or a public entity does not fall within the aegis of section 19—has been followed repeatedly and uniformly in the more than 60 years that have elapsed since that decision was rendered. (Yee v. City of Sausalito (1983) 141 Cal.App.3d 917, 920 [190 Cal.Rptr. 595]; Eli v. State of California (1975) 46 Cal.App.3d 233, 235-236 [120 Cal.Rptr. 63]; Hayashi v. Alameda County Flood Control (1959) 167 Cal.App.2d 584, 591-592 [334 P.2d 1048]; Neff v. Imperial Irrigation Dist. (1956) 142 Cal.App.2d 755, 757-758 [299 P.2d 359].) In House v. L. A. County Flood Control Dist. (1944) 25 Cal.2d 384 [153 P.2d 950], which held that damage caused by the design of a public project gave rise to an inverse condemnation action, then Justice Traynor was careful to explain that “[t]he destruction or damaging of property is sufficiently connected with ‘public use’ as required by the Constitution, if the injury is a result of dangers inherent in the construction of the public improvement as distinguished from dangers arising from the negligent operation of the improvement.” (25 Cal.2d at p. 396 (conc. opn. of Traynor, J.), italics added.)

Similarly, in Bauer v. County of Ventura (1955) 45 Cal.2d 276, 286 [289 P.2d 1], this court, after concluding that property owners could recover for the damage caused by floodwaters diverted onto their property by a public watercourse and drainage system, took pains to explain that application of the predecessor of section 19 did not “subject the state to general tort liability under the theory of eminent domain. The defendants contend that the imposition of a duty to compensate for improper maintenance of a public improvement would impose liability for the act of negligently forgetting to close a sluice gate or other negligent acts committed during the routine day to day operation of the public improvement. But the raising of a ditch bank appears on its face to be a deliberate act carrying with it the purpose of fulfilling one or another of the public objects of the project as a whole. . . . The damage to property in this instance resulted not from immediate carelessness but from a failure to appreciate the probability that, functioning as deliberately conceived, the public improvement as altered and maintained would result in some damage to private property. Damage resulting from negligence in the routine operation having no relation to the function of the project as conceived is not within the scope of the rule applied in the present case. (See Miller v. City of Palo Alto, 208 Cal. 74 ... ; McNeil v. City of Montague, 124 Cal.App.2d 326 . . . ; Western Asssurance Co. v. Sacramento & S.J. Drainage Dist., 72 Cal.App. 68 ... ; anno. 2 A.L.R.2d 677.)” (Italics added.)

In Albers v. County of Los Angeles (1965) 62 Cal.2d 250 [42 Cal.Rptr. 89, 398 P.2d 129], this court, again considering the effect of the words “or damaged” in section 19, held that the owner of property abutting a public improvement was entitled to compensation where the property was damaged as a result of the construction of that public improvement. In Holtz v. Superior Court (1970) 3 Cal.3d 296 [90 Cal.Rptr. 345, 475 P.2d 441], we referred to our decision in Albers as follows: “In announcing our holding in Albers .... we did not overlook the competing considerations which caution against an open-ended, ‘absolute liability’ rule of inverse condemnation. Recognizing that ‘fears have been expressed that compensation, allowed too liberally, will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost’ [citation], we deemed it prudent to focus our policy inquiry on situations which shared a general factual similarity with that present in Albers. Thus we limited our holding of inverse condemnation liability, absent fault, to ‘physical injuries of real property’ that were ‘proximately caused’ by the improvement as deliberately constructed and planned.” (Id. at pp. 303-304, italics added, fn. omitted.)

In the present case, of course, the property damage for which Customer seeks to recover bears no relation to a “public improvement” or “public work” of any kind. Instead, the damage was caused by actions of public employees having “no relation to the function” of a public improvement whatsoever. As the foregoing cases demonstrate, property damage caused in such a manner never has been understood to give rise to an action for inverse condemnation in California, but rather has been treated as subject to the general tort principles applicable to governmental entities.⁷

Any doubt that an action for inverse condemnation will not lie in the present case is dispelled by consideration of those cases applying the so-called emergency exception to the just compensation requirement. The emergency exception has had a long and consistent history in both state and federal courts. It is a specific application of the general rule that damage to, or even destruction of, property pursuant to a valid exercise of the police power often requires no compensation under the just compensation clause. “[I]n its legitimate exercise the police power often works not only damage to property but destruction of property. Injury to property can and often does result from the demolition of buildings to prevent the spread of conflagration, from the abandonment of an existing highway, from the enforced necessity of improving property in particular ways to conform to police regulations and requirements. . . . And equally well settled and understood is the law that in the exercise of this same power property may in some, and indeed in many, instances be utterly destroyed. The destruction of buildings, of diseased animals, of rotten fruit, of infected trees, are cases that at once come to mind as applicable to both personalty and realty. Always the question in each case is whether the particular act complained of is without the legitimate purview and scope of the police power. If it be, then the complainant is entitled to injunctive relief or to compensation. If it be not, then it matters not what may be his loss, it is damnum absque injuria [damage without injury].” (Gray v. Reclamation District No. 1500, supra, 174 Cal. 622, 638-639; Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24 [119 P.2d 1].)

In Holtz v. Superior Court, supra, 3 Cal.3d 296, 303, we noted the limits of the rule that compensation is not required for property damage resulting from a valid exercise of the police power. The plaintiffs in Holtz owned property abutting construction of a public transportation system—property that was damaged when extensive excavation deprived the plaintiffs’ buildings of lateral support. In holding that the plaintiffs were entitled to compensation, we noted: “[T]he ‘police power’ doctrine ‘[generally . . . operates in the field of regulation’ .... [T]his doctrine of noncompensable loss comes into play in connection with more direct ‘taking’ or ‘damaging’ of property only under ‘emergency’ conditions; i.e., when damage to private property is inflicted by government ‘under the pressure of public necessity and to avert impending peril.’ [Citation.]” (Id. at p. 305.)

In United States v. Caltex, Inc. (1952) 344 U.S. 149 [97 L.Ed. 157, 73 S.Ct. 200], compensation was denied for an oil terminal facility in Manila that the United States Army destroyed immediately prior to the Japanese invasion of the Philippine Islands. The facility was demolished in order to deprive the enemy “of a valuable logistic weapon.” (Id. at p. 151 [97 L.Ed. at pp. 160-161].) Similarly, in United States v. Pacific R.R. Co. (1887) 120 U.S. 227 [30 L.Ed. 634, 7 S.Ct. 490], compensation was denied for bridges destroyed during the Civil War by Union forces as the Confederate army advanced. As in Caltex, the bridges were destroyed “to prevent the advance of the enemy.” (Id. at p. 229 [30 L.Ed. at p. 635.) Fifty years ago, in House v. L. A. County Flood Control Dist., supra, 25 Cal.2d 384, 391, we recognized: “Unquestionably, under the pressure of public necessity and to avert impending peril, the legitimate exercise of the police power often works not only avoidable damage but destruction of property without calling for compensation. ... In such cases calling for immediate action the emergency constitutes full justification for the measures taken to control the menacing condition, and private interests must be held wholly subservient to the right of the state to proceed in such manner as it deems appropriate for the protection of the public health or safety. [Citation.]”⁸

In the same manner, law enforcement officers must be permitted to respond to emergency situations that endanger public safety, unhampered by the specter of constitutionally mandated liability for resulting damage to private property and by the ensuing potential for disciplinary action. This court never has sanctioned an action for inverse condemnation seeking recovery for incidental damage to private property caused by law enforcement officers in the course of efforts to enforce the criminal law. Permitting Customer to bring an action for inverse condemnation under the circumstances of the present case would constitute a significant, unprecedented, and unwarranted expansion of the scope of the just compensation requirement and might well deter law enforcement officers from acting swiftly and effectively to protect public safety in emergency situations.

The dissent would not apply the emergency exception in the present case because, it asserts, “the government itself was a substantial cause of the emergency.” (Dis. opn., post, at p. 404.) We do not agree. The government did not create the situation of an armed and dangerous felon actively attempting to avoid capture, nor did the government cause that suspect to enter Customer’s store or to refuse to leave when lawfully ordered to do so by the police.

It is true that the unplanned entrance of marked patrol vehicles into the store’s parking lot altered Deputy Chapman’s plan to wait until the suspect emerged from the store before attempting to arrest him. But, as the dissent appears to acknowledge, this action by the authorities did not constitute a taking of Customer’s property within the meaning of section 19, because it constituted, at most, an act of “routine negligence.” (Dis. opn., post, at pp. 420, 421-422.)⁹

The dissent states: “[T]he ‘emergency’ claimed by defendants, and the involvement of plaintiff’s store in that emergency, were the sole and direct result of the time, place, and manner in which defendants themselves decided to achieve the capture of a public enemy.” (Dis. opn., post, at p. 421.) In other words, the government must be deemed to have “taken” Customer’s property within the meaning of section 19 because the efforts of law enforcement officers to locate and capture a felony suspect resulted in the suspect’s taking refuge in Customer’s store. But the dissent would hold that section 19 does not apply where law enforcement officers attempt to apprehend a suspect caught in the act of committing a crime, because such action by the government would confer “a significant private benefit” upon the owner of the damaged property. (Dis. opn., post, at p. 416, fn. 8, italics omitted.)¹⁰ The dissent’s rationale suggests that had the police followed Nash until he attempted to commit another robbery, the government would be shielded from liability under section 19, but that acting to prevent such a future attempt on his part rendered the government liable. Not only is such a distinction untenable, but an effort to apprehend the suspect while he is engaged in the commission of a dangerous felony would pose no less a threat of damage to private property and a far greater one to the safety of innocent persons.

Customer relies upon decisions from two states that have construed constitutional provisions (similar to our section 19) to require public entities to compensate the owners of property damaged by law enforcement officers in the course of enforcing the criminal law. As explained below, we find these decisions unpersuasive.

Wegner v. Milwaukee Mut. Ins. Co. (Minn. 1991) 479 N.W.2d 38 [23 A.L.R.5th 954] involved a situation quite similar to that in the present case. A fleeing suspect took refuge in the plaintiff’s residence. Police surrounded the house and, when the suspect ignored orders to surrender, fired tear gas canisters and “flash-bang” grenades into the residence—action resulting in the capture of the suspect, but causing damage to the plaintiff’s home in the amount of $71,000. The plaintiff sought compensation under a provision of the Minnesota Constitution that closely resembles our section 19.¹¹ The Minnesota Supreme Court recognized “that this is not an eminent domain action and should not be analyzed as such” (479 N.W.2d at p. 40), but nonetheless appeared to apply eminent domain principles, concluding that just compensation was required because the city had “taken” the plaintiff’s property for a public use. Rather than analyze and apply the law governing actions for inverse condemnation, however, the Minnesota court relied upon “policy considerations” to conclude that “the better rule, in situations where an innocent third party’s property is taken, damaged or destroyed by the police in the course of apprehending a suspect, is for the municipality to compensate the innocent party for the resulting damages.” (Id. at p. 42.) In reaching this conclusion, the court in Wegner placed primary reliance upon the decision of the Texas Supreme Court in Steele v. City of Houston (Tex. 1980) 603 S.W.2d 786.

In Steele, escaped prisoners took refuge in a house owned by the plaintiff. In order to capture the escapees, police set fire to the residence, destroying the home and its contents. Although observing that the case was not “one of eminent domain or inverse condemnation” (Steele v. City of Houston, supra, 603 S.W.2d at p. 789), the Texas Supreme Court relied upon a literal interpretation of that state’s just compensation clause¹² and concluded, without citation to additional authority or supporting analysis, that the residence was taken “for the public use ... by proof that the City ordered the destruction of the property because of real or supposed public emergency to apprehend armed and dangerous men who had taken refuge in the house.” (Steele v. City of Houston, supra, 603 S.W.2d at p. 792.) But the court then appeared to recognize the traditional emergency exception to claims for just compensation by stating: “The defendant City of Houston may defend its actions by proof of a great public necessity. Mere convenience will not suffice.” (Ibid.) In the next paragraph, however, the decision appears to contradict itself, suggesting without explanation or citation of authority that the property owner was entitled to compensation without a determination whether the police were responding to an emergency: “We do not hold that the police officers wrongfully ordered the destruction of the dwelling; we hold that the innocent third parties are entitled by the Constitution to compensation for their property.” (Id. at p. 793.)

The opinion in Steele is poorly reasoned and internally inconsistent. The opinion in Wegner relies primarily upon the faulty reasoning in Steele. Neither decision gives serious consideration to the body of authority governing actions for inverse condemnation. Accordingly, we decline to follow these decisions.

Moreover, the opinions in Wegner and Steele relied upon by Customer do not represent a consensus on the issue before us. To the contrary, nearly every other court to consider this question has held that constitutional just compensation principles do not apply to damages caused by law enforcement officers in the course of performing their duties. Courts have held that an action for inverse condemnation did not lie when police officers executing a search warrant and arrest warrant fired smoke grenades, tear gas canisters, and percussion and flash grenades into a rented residence, causing a fire that destroyed the residence (Patel v. U.S. (N.D.Cal. 1993) 823 F.Supp. 696, 699), when a police officer entered the plaintiff’s automobile and ordered him to pursue another vehicle containing a fleeing suspect, and the plaintiff’s vehicle was damaged during the chase when it collided with a parked truck (Blackman v. City of Cincinnati (1942) 140 Ohio St. 25 [42 N.E.2d 158, 160]), when police fired tear gas into the plaintiff’s home to capture a felony suspect who had taken refuge there (Indiana State Police v. May (Ind.Ct.App. 1984) 469 N.E.2d 1183, 1184, disapproved on other grounds in Tittle v. Mahan (Ind. 1991) 582 N.E.2d 796, 800), when a volunteer’s motor vehicle was damaged while he assisted law enforcement officers in searching for a weapon involved in a crime (Bray v. Houston County (1986) 180 Ga.App. 166 [348 S.E.2d 709, 710-711]), and when the police drained a pond on the plaintiff’s property in search of a body, killing the plaintiff’s fish and damaging the pond (McCoy v. Sanders (1966) 113 Ga.App. 565 [148 S.E.2d 902, 905]). Although the reasoning of these cases varies widely, each concludes that an action for inverse condemnation does not lie to recover damages to property caused by law enforcement officers in the course of performing their duties.

In the present case an action for inverse condemnation does not lie, because the efforts of the law enforcement officers to apprehend a felony suspect cannot be likened to an exercise of the power of eminent domain. This is not a case in which law enforcement officers commandeered a citizen’s automobile to chase a fleeing suspect, or appropriated ammunition from a private gun shop to replenish an inadequate supply. Conceivably, such unusual actions might constitute an exercise of eminent domain, because private property would be taken for public use. (But cf. Blackman v. City of Cincinnati, supra, 42 N.E.2d 158, 160.) Nothing of this sort occurred in the present case, however. Application of the just compensation clause in the present case would mean, for example, that every time a police officer fires a weapon in the line of duty, that officer exercises the power of eminent domain over any property that the officer reasonably could foresee might be damaged as a result. (See YMCA v. United States (1969) 395 U.S. 85, 92 [23 L.Ed.2d 117, 124, 89 S.Ct. 1511].)

To adopt Customer’s position would be equivalent to holding that by adopting the “or damaged” clause in 1879, the voters abolished the then existing doctrine of sovereign immunity, at least as applied to damage to property. There is absolutely nothing in the history of the constitutional provision to support such a conclusion, however, and—from 1879 through the adoption of the Tort Claims Act in 1963—the Legislature and the courts of California uniformly interpreted the “or damaged” clause as not effecting such a general repeal of the governmental immunity doctrine. (See, e.g., Miller v. Palo Alto, supra, 208 Cal. 74, 75-77; Muskopfv. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457]; see generally, 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 115 et seq., pp. 190-191. [discussing the history of California’s governmental immunity doctrine].)

Although in many circumstances it may appear “fair” to require the government to compensate innocent persons for damage resulting, for example, from routine efforts to enforce the criminal laws, inverse condemnation is an inappropriate vehicle for achieving this goal because it was not designed for such a purpose. Thus, for example, inverse condemnation is limited to damage to property and does not apply to damage involving personal injury. In the present case, for example, counsel for Customer acknowledged at oral argument that, under its proposed theory, although Customer would have a constitutional right to recover for damage to its store and its merchandise caused by the tear gas, had a store employee been on the premises, he or she could not recover, under the just compensation clause, for any personal injuries suffered as a result of the police use of tear gas. As explained below, this anomalous result—under which individuals would be afforded protection against property damage caused by tortious governmental conduct but not against personal injury caused by the same act—is avoided if governmental liability is evaluated, as it should be, under the provisions of the Tort Claims Act. (Gov. Code, § 810 et seq.)¹³

The anomaly of elevating claims for property damage above claims for personal injuries arising from the same type of governmental conduct is exacerbated by the special provisions applicable to inverse condemnation actions. Because such suits originated as an adjunct to the law of condemnation (affording real property owners a remedy when the government takes or damages their property in the construction of a public works project without first condemning the property and compensating the owner), the remedies available in inverse condemnation actions are unusually generous to plaintiffs in several respects. A prevailing plaintiff is entitled by statute to recover attorney fees. (Code Civ. Proc., § 1036.)¹⁴ Even if the case is settled, the attorney representing the public entity that effects the settlement is required to include in the settlement a reasonable amount for attorney fees and other costs. In addition, the costs to which a prevailing plaintiff is entitled, whether the action is settled or proceeds to judgment, also are quite generous in encompassing all costs incurred from the time of the damage, including such items as appraisal and engineering fees. (8 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 1062, p. 633.)

A prevailing plaintiff in an inverse condemnation action also is entitled to prejudgment interest. Such interest accrues not from the time the action is commenced, but from the time the damage occurs. (Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 657 [131 Cal.Rptr. 646, 552 P.2d 430].) Because the plaintiff has a constitutional right to such prejudgment interest under the just compensation clause, the Legislature cannot restrict this right. (Ibid. [“[I]nterest must be computed from the date the taking or damaging was sustained in order to fulfill the constitutional mandate for just compensation. [Citations.]”]; Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 759 [185 P.2d 597].) The “ultimate determination of the rate of interest required for ‘just compensation’ is a judicial function.” (Redevelopment Agency v. Gilmore, supra, 38 Cal.3d 790, 797.) The court must determine “the prevailing market rate” of interest in order to provide plaintiff the “ ‘full and perfect equivalent of the property taken. [Citation.]’ ” (Id., at pp. 796-797, italics in original.) Accordingly, Code of Civil Procedure sections 1268.311 and 1268.350, which provide that the rate of such prejudgment interest shall be based upon “the rate of earnings by the Surplus Money Investment Fund” for each six-month increment of the applicable period, merely establish the minimum rate of prejudgment interest. (People ex rel. Dept. of Transportation v. Diversified Properties Co. III (1993) 14 Cal.App.4th 429, 451 [17 Cal.Rptr.2d 676].)

Allowing Customer to bring an action for inverse condemnation not only would permit Customer to seek recovery of its damages without complying with the requirements of the Tort Claims Act, including its immunity provisions,¹⁵ but would allow Customer as well to seek recovery of its attorney fees and an award of prejudgment interest, neither of which would be available in a negligence action under the Tort Claims Act. Customer has alleged that the total property damage to its store exceeded $275,000. Customer’s attorney fees up to this point total $360,000. Prejudgment interest for the alleged property damage, from the date of the injury, currently would total at least $185,784. Thus, the amount of attorney fees and prejudgment interest far eclipse the amount of Customer’s property loss. We see no reason why a plaintiff seeking recovery for property damage should be permitted to obtain the additional benefit of attorney fees and prejudgment interest by bringing an action for inverse condemnation, while a plaintiff seeking recovery for personal injuries sustained by the same governmental conduct would not be entitled to such remuneration.

As noted at the outset of our opinion, a conclusion that the government’s conduct in the present case does not give rise to an inverse condemnation action under section 19 does not necessarily mean that California law precludes a property owner, like Customer, from recovering damages under the circumstances involved in this case. Instead, the government’s potential liability for this type of conduct properly should be evaluated, as it always has been in the past, under the provisions of the Tort Claims Act. (Gov. Code, § 810 et seq.) In enacting the elaborate and detailed provisions of that act, the Legislature carefully considered the competing considerations that arise from the imposition of liability upon the government in various tort settings, and deliberately fashioned immunity provisions designed to avoid deterring the government from proceeding with the enforcement of important public policies. As noted above, to allow Customer to bring an action for inverse condemnation would “trump” all of the immunity provisions set forth in the Tort Claims Act.

In the present case, Customer alleged a cause of action for negligence under the Tort Claims Act in addition to its inverse condemnation claim, but the superior court and the Court of Appeal concluded that the defendant public entities were immune from such tort liability, pursuant to Government Code section 820.2, which (as noted above) provides immunity for those acts and omissions of public employees resulting from their “exercise of discretion.” Customer did not seek review from this portion of the Court of Appeal’s ruling. Following oral argument, we requested supplemental briefs addressing whether Customer would be entitled to relief under the Tort Claims Act. In its supplemental brief, however, Customer expressly “waived the right to relief under the Tort Claims Act,” offering the following reason for this waiver: “ [Customer]’s attorneys fees and costs to date in this matter total $360,000. . . . [Customer] is not willing to incur the additional expense of a trial of the issues whether the police acted negligently, a trial in which even if [Customer] prevails it will be required to pay its attorney’s fees.” As noted above, were Customer to prevail in its cause of action for inverse condemnation, it would be entitled to recover its attorney fees.

In order to determine whether Customer could recover under the Tort Claims Act, we would have to decide whether the superior court and the Court of Appeal were correct in concluding that City and County are immune from liability pursuant to Government Code section 820.2, which provides that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused,” and Government Code section 815.2, subdivision (b), which provides that “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

This court has held that Government Code section 820.2 “confers immunity only with respect to those ‘basic policy decisions’ which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions [citation].” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793 [221 Cal.Rptr. 840, 710 P.2d 907].) But we have not resolved whether the selection of the means employed to effectuate an arrest is such a “basic policy decision” to which the immunity applies. (See ibid.; Nunn v. State of California (1984) 35 Cal.3d 616, 622 [200 Cal.Rptr. 440, 677 P.2d 846]; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 414-415 [134 Cal.Rptr. 402, 556 P.2d 764]; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 445 [131 Cal.Rptr. 14, 551 P.2d 334]; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453]; Johnson v. State of California (1968) 69 Cal.2d 782, 797 [73 Cal.Rptr. 240, 447 P.2d 352].) In light of Customer’s express waiver of its negligence claim, it would be inappropriate for us to decide in the present case whether the immunity provisions of Government Code section 820.2 apply under the circumstances of the present case.

We observe that one remaining avenue may be open to property owners in Customer’s position. They may be able to secure reimbursement for all or part of their loss from the public entity under a statutorily authorized program established to aid victims of crime. The Legislature has enacted Government Code sections 29631 and 29632, which specifically authorize cities and counties to establish reimbursement programs for damage to the property of “innocent residents” caused by peace officers engaged in detecting crime or apprehending suspects.¹⁶ Property owners such as Customer appear to fall within the category of innocent victims these statutorily authorized programs were designed to benefit. It is worth noting that these statutes, and the reimbursement programs they authorize, would be unnecessary if Customer were correct in its assertion that public entities are required by section 19 to compensate property owners for the damage they suffer as the result of efforts by law enforcement officers to enforce the criminal laws.

For the foregoing reasons, we hold that the superior court properly granted judgment on the pleadings, in favor of the City and the County, on Customer’s cause of action for inverse condemnation.

IV

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Kennard, J., and Werdegar, J., concurred.

1 Although uncommon, such attempts to bring an action for inverse condemnation rather than for negligence are hardly unprecedented. In a 1948 annotation discussing such efforts, it was observed: “When private property is damaged by negligence of governmental agents . . . , the primary obstacle with which a litigant and counsel may be confronted, in attempting to secure redress, is the traditional immunity of certain governmental bodies from liability for tort. If recovery is to be had, this barrier must somehow be skirted, and the ‘eminent domain’ theory is one way of attempting to go around it.” (Annot., Taking for Public Purpose (1948) 2 A.L.R.2d 677, 678, fn. omitted.)

In a supplemental brief, Customer suggested it may have had additional reasons for abandoning its negligence cause of action: “Appellant’s attorneys fees and costs to date in this matter total $360,000.00. It. . .is not willing to incur the additional expense of a trial of the issue[] whether the police acted negligently, a trial in which even if Appellant prevails it will be required to pay its attorney’s fees.” As discussed below, if Customer were to prevail on its inverse condemnation cause of action, it would be entitled to recover its costs, including attorney fees (Code Civ. Proc., § 1036), and the judgment would include prejudgment interest of at least $185,784 (Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790, 797 [214 Cal.Rptr. 904, 700 P.2d 794]).

2 Customer does not base its claim upon the takings clause of the Fifth Amendment to the federal Constitution, which is applicable to the states through the Fourteenth Amendment (Dolan v. City of Tigard (1994) 512 U.S. _, _ [129 L.Ed.2d 304, 315, 114 S.Ct. 2309, 2316] and provides: “[N]or shall private property be taken for public use, without just compensation.”

3 “Eminent domain is the right of the people or government to take private property for public use.” (8 Wilkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 918, p. 467; see Code Civ. Proc., § 1240.010.)

4 “An inverse condemnation action is an eminent domain proceeding initiated by the property owner rather than the condemner. The principles which affect the parties’ rights in an inverse condemnation suit are the same as those in an eminent domain action. [Citations.]” (Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 663, fn. 1 [39 Cal.Rptr. 903, 394 P.2d 719]; Bacich v. Board of Control (1943) 23 Cal.2d 343, 347 [144 P.2d 818]; Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility (1966) Wis. L.Rev. 3, 4, fn. 2.)

5 For example, in Dolan v. City of Tigard, supra, 509 U.S. _, _ [129 L.Ed.2d 304, 316, 114 S.Ct. 2309], the high court held that the just compensation clause limits the authority of a city to require that a property owner, in order to obtain a building permit, dedicate a portion of his or her property to the city for flood control and traffic improvements: “Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. [Citation.]” In Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003, _ [120 L.Ed.2d 798, 813-814, 112 S.Ct. 2886], the high court considered the rationale for the rule that a regulation that “denies all economically beneficial or productive use of land” will be considered a taking: “Perhaps it is simply, as Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation. [Citation.]” The opinion later notes “the practical equivalence in this setting of negative regulation and appropriation.” (Id. at p. _ [120 L.Ed.2d at p. 815.) In Nollan v. California Coastal Comm’n (1987) 483 U.S. 825, 831 [97 L.Ed.2d 677, 685-686, 107 S.Ct. 3141], the high court held that property owners could not be required to allow a public easement over a portion of their beachfront property in order to obtain a permit to demolish an existing structure and replace it with a new residence: “Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking.” Terming such conditions “ ‘extortion’ ” (id. at p. 837 [97 L.Ed.2d at p. 689]), the opinion ends by stating that if California “wants an easement across the Nollans’ property, it must pay for it.” (Id. at p. 842 [97 L.Ed.2d at p. 692].)

6 “[T]he injury inflicted is without damage, and the damage without injury, curtly expressed in the maxim ‘damnum absque injuria.’ The right of the owner of the property, who has sustained such damage, must yield to the promotion and advancement of the public good.” (Reardon v. San Francisco, supra, 66 Cal. at p. 504.)

7 The foregoing discussion should make it clear that we do not agree with the dissent’s assertion that the issue presented by this case is one of first impression in California. (Dis. opn., post, at p. 406.) On the contrary, the cited authorities make it clear that section 19 has been interpreted, consistently and repeatedly over the past century, not to apply to property damage caused by the type of governmental activity here at issue.

8 The dissent states that the emergency exception does not apply in the present case because, in contrast, “[m]any, if not all,” of the California and United States Supreme Court cases applying the emergency exception involved property that had become a nuisance and had “already lost its compensable value.” (Dis. opn., post, at p. 418.) But this statement is not true as to three of the cases cited by the dissent in support of its assertion. The bridges at issue in United States v. Pacific R.R. Co., supra, 120 U.S. 227 were destroyed by the military to slow the advance of enemy troops, not because the bridges had become a nuisance or had lost any of their value. As explained by our high court: “The safety of the state in such cases overrides all considerations of private loss.” (Id. at p. 234 [30 L.Ed. at p. 637].) Similarly, the cedar trees destroyed in Miller v. Schoene (1928) 276 U.S. 272 [72 L.Ed. 568, 48 S.Ct. 246] had not lost any of their value. Rather, they were deemed a nuisance and were destroyed simply because they harbored a pest harmless to cedar trees but ruinous to apple trees, which were of greater commercial value. The high court recognized that, because the cedar trees and apple trees could not coexist in close proximity, the state was compelled to decide which would be sacrificed: “When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.” (Id. at p. 279 [72 L.Ed. at p. 571].) Finally, Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494 [221 Cal.Rptr. 225] held the state was not required to compensate property owners for damage to the paint on their automobiles caused by aerial spraying intended to eradicate the Mediterranean fruit fly. Clearly, those vehicles did not constitute nuisances and had not lost their value prior to the spraying.

9 Although the entry of the marked vehicles into the parking lot was unplanned, as events unfolded it did not necessarily turn out to be a poor strategy. Unknown to the officers at the time, the suspect had left his weapons in the stolen automobile and was unarmed while inside the store. Had the suspect been permitted to return to the automobile, he might have resisted arrest by firing his weapons, attempting to escape in the vehicle, or reentering the store while armed and taking the store clerk hostage. Deputy Chapman, noting that the suspect had vowed to “shoot it out” rather than be arrested, observed that any attempt to arrest the suspect after he left the store posed its own dangers and was not necessarily preferable to confronting the suspect while he was inside the store: “So, knowing that, I am assuming he would run from us in the car, and we’d have a vehicle pursuit, maybe shots fired, maybe collisions. It didn’t really make much difference. ... [¶] It was just whatever fell in place at the time, you go with it.”

Obviously, there is no easy or safe method for apprehending an armed and dangerous suspect. Only a few days earlier, this suspect had detected the presence of an undercover officer in an unmarked vehicle and eluded the police by driving evasively. Although in the present case the suspect’s refusal to surrender resulted in considerable and regrettable damage to Customer’s property, it must be remembered that the law enforcement officers succeeded in apprehending an armed and dangerous suspect without anyone being killed or injured.

10 It certainly could be argued that the government conferred a significant private benefit upon Customer by removing the barricaded suspect from its premises. Because Customer could not have operated the store while the suspect was hiding inside, allowing him to remain indefinitely (he had ample supplies of food and drink) eventually would have caused Customer to suffer an equal or greater economic loss, as well as posing an intolerable threat to public safety, both from the presence of the suspect inside the store and the diversion of a large proportion of the police force from its other duties.

11 Article I, section 13, of the Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without just compensation, first paid or secured.”

12 Article I, section 17, of the Texas Constitution provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . .”

13 The dissent, acknowledging that its interpretation of section 19 would impose liability only for property damage and not for personal injury arising from the same act, asserts: “[T]here is no doubt that for profound historical reasons, the California Constitution, like its federal counterpart, is peculiarly concerned with the power and temptation of unchecked government to decree the uncompensated sacrifice of private property for the common benefit.” (Dis. opn., post, at p. 416.) No authority is cited in support of the dissent’s theory that the respective drafters of our state and federal Constitutions, with regard to the risk of harm posed by the type of governmental actions here at issue, for “profound historical reasons” afforded greater protection to private property than to the welfare of individuals.

14 Code of Civil Procedure section 1036 provides: “In any inverse condemnation proceeding brought for the taking of any interest in real property, the court rendering judgment for the plaintiff by awarding compensation for such taking, or the attorney representing the public entity who effects a settlement of such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or such attorney, reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.”

15 Such an expansion of the takings clause of our state Constitution effectively would nullify all applicable governmental immunity statutes, such as Vehicle Code section 17004.7, which governs vehicular pursuits, and Government Code section 820.2, which immunizes discretionary governmental acts.

16 Government Code section 29631 states: “The Legislature hereby declares that it serves a public purpose, and is of benefit to the state and to every county and city in the state, to indemnify those innocent residents of the State of California whose property has been injured or destroyed as a result of the acts specified in Section 29632.”

Government Code section 29632 states: “The legislative body of a county or of a city may establish a program which provides for the reimbursement of any innocent resident . . . whose property is or has been . . . injured or destroyed as the consequence of: [¶] (a) An act of a peace officer in the detection of crime or the apprehension or arrest of any person for any public offense; or [¶] (b) An act of a person in resisting or avoiding arrest.”

Government Code section 29636 provides that a court may order a person convicted “of a crime which has resulted in the injury or destruction of property for which reimbursement is provided for under a program established pursuant to this article ... to pay a fine in an amount sufficient to pay for the replacement or repair of the property injured or destroyed . ...” A portion of such fine shall be used to pay claims pursuant to that reimbursement program.