The U.S. Court of Appeals for the Seventh Circuit is the latest court to wade in (or more accurately, re-wade in) to what we call the SWAT Takings issue.
Those are cases where Five-O damages the property of an innocent owner in the course of apprehending a criminal suspect. Is this a taking triggering the obligation of the government to provide just compensation?
The logic is sound: under a governmental power (police power), the government (SWAT) has physically invaded (deprived the owner of an essential stick of private property, the right to exclude) a home (private property), for public use (police apprehending suspects is a good thing), triggering the obligation to spread the burden of this public good to the entire public (Armstrong).
But thus far, lower courts have all said no taking (albeit for various reasons). Two Justices of the Supreme Court, however, seem to think this is an issue worth resolving (as do we).
In Hadley v. City of South Bend, No. 24-2448 (Oct. 7, 2025), the court was presented with a situation where pursuant to a warrant, the police entered and damaged Hadley’s home. The court reaffirmed the position a prior Seventh Circuit panel adopted in Johnson v. Manitowoc County, 635 F.3d 331 (7th Cir. 2011), which presented similar facts.
The Hadley rationale was slightly different than Johnson, however. In Johnson, the court adopted a categorical rule: that government entries like this are under the police power, and thus can never be takings: “But the Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.” We criticized that analysis here.
Hadley backs off Johnson‘s rationale. When Hadley pointed out that a categorical exemption for police power actions would undermine the theory of regulatory takings (de facto takings which result from an exercise of sovereign power other than eminent domain), the court said no:
We see things differently. As noted above, Johnson staked our Circuit’s position on the specific issue in Hadley’s case—whether the Fifth Amendment requires compensation when police damage property while executing a valid search war-rant. The answer is no. Johnson, 635 F.3d at 336. And, as discussed above, Johnson’s application in the law-enforcement context is well supported by precedent from our sister circuits and the Supreme Court. Hadley points us to no authority showing this position is categorically wrong. Accordingly, we need not decide whether Johnson governs outside Hadley’s context.
Slip op. at 10-11.
The court buried its rationale somewhat. Unlike Johnson, the court held that a categorical exemption isn’t based on the power being exercised, but is based on valid police searches-and-seizures being preexisting limitations on property rights:
One way a government exercises its police power is when it investigates criminal activity. See id. at 160–61. But the Court has held the Fifth Amendment does not apply when a government takes property by asserting a “pre-existing limitation upon the landowner’s title.” Lucas, 505 U.S. at 1028–29. These limitations include “traditional common law privileges” like the “privilege to enter property to effect an arrest or enforce the criminal law under certain circumstances.” Cedar Point, 594 U.S. at 160–61. As such, “government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners.” Id. at 161.
Slip op. at 8-9.
That is a much different approach than Johnson.
Based on that distinction, the court noted that a different set of facts might result in a different conclusion:
If this case presented a claim outside the context of police executing a lawful search warrant, we might need to grapple with more of Hadley’s arguments. But it does not. Johnson settled the issue here: whether the Takings Clause applies when police damage property while executing a lawful search warrant. Johnson forecloses a takings claim under these circumstances, and Hadley gives us no reason to set that holding aside.
Slip op. at 7.
In the end, the court concluded that Hadley should have brought the claim under the Fourth Amendment, not the Fifth. See slip op. at 12 (“This is not to say Hadley was without recourse entirely. She could have sued police alleging they violated the Fourth Amendment by executing their search warrant unreasonably.”).
For more on our thoughts on SWAT takings, take a look at an article we published that focuses on Co-19 related emergency measures, but covers much of the same grounds as SWAT takings, “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).
Programming note: we shall be speaking on this issue next week at the Brigham-Kanner Property Rights Conference along with Jeffrey Redfern (Institute for Justice), Professor Patrick E. Reidy (Notre Dame), and Professor Shelley Ross Saxer (Pepperdine), in a session entitled “Public Safety, Private Property, and Just Compensation.”
Check out the complete agenda and speaker list for the Brigham-Kanner Conference here.
Hadley v. City of South Bend, No. 24-2448 (7th Cir. Oct. 7, 2025)