Search results for: swat takings

Here’s the latest in a case (and issue) we’ve been following.

In this latest iteration of what we call the “SWAT takings” issue, the Sixth Circuit, like every other federal appellate court, denied the owner of property severely damaged in the course of a police dislodging of a criminal suspect. But the court applied a different analysis. Instead of (incorrectly, we think) looking and whether the police were acting with the scope of their (ha!) police power, the court concluded that the police had a “privilege” to enter, so thus could destroy in the course of that entry, the petitioner’s property.

In short, your bundle of sticks never included the right to exclude the po-po.

Here’s the Question Presented:

A few weeks ago, this Court denied certiorari in Baker v. City of McKinney, 23-1363, a case about whether the Fifth Amendment’s Takings Clause re-quires compensation when a SWAT team destroys an innocent person’s property while pursuing a fugitive. The Fifth Circuit had held that there is an implicit exception to the Takings Clause when the govern-ment’s actions were “objectively necessary.”

In a statement respecting the denial of certiorari, Justice Sotomayor, joined by Justice Gorsuch, wrote that “[w]hether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.” Baker, No. 23-1363, 2024 WL 4874818, at *2 (U.S. Nov. 25, 2024).

The facts of the present case are materially identical to Baker, but the Sixth Circuit panel below denied compensation on different grounds: Because the Slaybaughs had no legal right to exclude the police, the panel reasoned, the destruction of their house was not actually a deprivation of their property rights. In sup-port of this conclusion, the panel relied on dicta from Cedar Point Nursery v. Hassid, where this Court noted that lawful searches do not “appropriate” an owner’s traditional right to exclude others from his or her property.

The question presented is: “Does a common law privilege to access property categorically absolve the government’s duty of just compensation for property it physically destroys?

The way the QP is framed to us implicates state precondemnation entry statutes under which condemnors may enter private property against the will of the owner to evaluate the property for future acquisition, but is not excused from takings liability for just compensation when that entry is more than minimal and innocuous.

Follow along on the Court’s docket here, and stay tuned, with fingers crossed.

Petition for a Writ of Certiorari, Slaybaugh v. Rutherford County, No. 24-755 (U.S. Jan. 16, 2025)

Continue Reading New Cert Petition: SWAT Takings, Part X

Here’s the latest in a case we’ve been following with keen interest

Yesterday, the Supreme Court denied certiorari in Baker v. City of McKinney, the case where municipal police severely damaged a home in the course of extracting a criminal suspect, after which the owner successfully sought just compensation for a taking. All good, until the Court of Appeals got it. Here’s the district court’s opinion finding a taking. (As we noted in this brief in an earlier similar case, homeowner’s insurance generally does not provide coverage for damages caused by government.)

And here’s the Fifth Circuit’s opinion reversing, concluding (correctly) that there is not a categorical “police power” exception to takings liability, but also that just compensation is not required when the government action and the resulting damage is “objectively necessary” for public safety.

Teed up that way, we thought this one had a chance. But alas, the Cert Fairy left a lump of coal under the pillow.

Perhaps a silver lining to the denial, however: two Justices (Sotomayor joined by Gorsuch – kind of an odd combination) issued a statement noting that the issues in the case, if refined and presented in a different case, could be of interest to the Court.

The very interesting part of the Statement starts on page 3, where Justice Sotomayor writes:

I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual.

….

This Court has yet to squarely address whether the government can, pursuant to its police power,require some individuals to bear such a public burden. This Court’s precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable.

Statement at 3-4.

Note the two cases cited by Justice Sotomayor next: Bowditch v. Boston, 101 U.S. 16 (1879), and United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952), which “do not resolve Baker’s claim …  because the destruction of her property was necessary, but not inevitable.” Statement at 5. In both Bowditch and Caltex, the destruction of the plaintiff’s property was pretty certainly going to happen anyway (in Bowditch by fire, by Caltex by the advancing Imperial Japanese Army — the “fortunes of war,” as the Court put it). The government blowing up the properties in these cases only hastened the inevitable. For more on these cases and the “inevitable” vibe, see the amicus brief our outfit (Pacific Legal Foundation) submitted.

Also worth checking out is Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), where the Court held that commandeering property to prevent it from falling into the hands of the enemy in war was not a taking as long as the danger is “immediate and impending,” and waiting around for civil authority would be too late.

We wrote about these cases and the notion that even a compelling police power reason isn’t alone enough to avoid takings liability and the Armstrong redistribution principle, and similar in our article, “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).

Justice Sotomayor continued, “Whether the inevitable-destruction cases should extend to this distinct context remains an open question.” Statement at 5. The Statement also points out the lower court split in reasoning (but not outcome), and concludes:

All those decisions, save the Sixth Circuit’s, however, predate the Fifth Circuit’s determination that there is an “objectively necessary” exception to the Takings Clause. Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.

Statement at 6.

Count us intrigued.  

Statement of Justice Sotomayor, with whom Justice Gorsuch joins, respecting denial of certiorari, Baker v….

Continue Reading Cert Denied (With Hints) In SWAT Takings Case

If there’s a silver lining in the U.S. Court of Appeals for the Sixth Circuit’s opinion in Slaybaugh v. Rutherford County, No. 23-5765 (Sep. 3, 2024), a case about what we call “SWAT takings” (police destroy someone’s property in order to dislodge a criminal suspect), it’s that the court did not adopt the usual “this was a really, really good exercise of the municipality’s police power so there’s no taking” approach.

But even though it applied a different analysis, the result was the same: no taking. Instead of the “police power” rationale, the court dug into the substance a bit more and determined that the police were “privileged” to physically invade and destroy the Slaybaugh property.

The court first acknowledged that owners generally have the right to exclude:

In arguing their prima facie takings claim, the Slaybaughs contend that police infringed on their property rights by invading and damaging their home to arrest Conn. Appellant Br. at 14–15. They are correct in a general sense—their home constitutes real “property,” and the Slaybaughs undoubtedly possess a “bundle of rights” with respect to that property by virtue of their obtaining title to it. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“Property rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’” (quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945))); Cedar Point Nursery, 594 U.S. at 149–50 (“According to Blackstone, the very idea of property entails ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’” (quoting 2 W. Blackstone, Commentaries on the Laws of England 2 (1766))).

Slip op. at 6.

But the owner’s bundle of sticks never included the right to exclude Five-O:

But a property owner’s rights in his home are not absolute. Indeed, the Supreme Court has explained that “the range of interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments” may be limited by “‘existing rules or understandings that stem from an independent source such as state law.’” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). True, the Slaybaughs possess a right to exclude unwanted visitors from their home—“one of the most treasured” rights of property ownership. Loretto, 458 U.S. at 435. But that does not mean that they could exclude anyone from their home, in any circumstance. Rather, their right to exclude is limited by “relevant background principles” placed upon home ownership. Lucas, 505 U.S. at 1030.

The po-po can come on your property and destroy it because that is a “pre-existing limitation” on an owner’s title. The court relied on the tort concept of “search-and-arrest privilege” to conclude that reasonable invasions are ok. The opinion also took a dive into the history and tradition (issues which the Supreme Court finds particularly illuminating when it comes to understanding property rights), concluding that “[t]his 21st-century understanding of the search-and-arrest privilege is consistent with its history. In early common law, a police office generally could not break into a home to carry out an arrest or conduct a search unless he had a lawful warrant. … But with a warrant, English law permitted police to use force to enter homes, conduct searches, and carry out arrests.” Slip op. at 8 (citations omitted).

The court also recited the earlier cases which held that police could use force to effect an arrest without being worried about liability for damage. Slip op. at 10 (“Most relevant here, early state and federal court decisions (like prior English decisions) held that a police officer who used force to carry out a search or arrest was not liable for any damage resulting from his lawful actions.”).

The court rejected the owners’ arguments to the contrary:

The Slaybaughs provide several reasons why applying the search-and-arrest privilege does not resolve this case. They first argue that Cedar Point’s discussion of privileges is not controlling because that case involved “the mere entry upon” property; while here, officers intentionally destroyed their home. Appellant Br. at 23. But the Restatement, history, and precedent demonstrate that the privilege to enter includes a privilege to use force to enter. What’s more, the Cedar Point Court explained that its discussion of “longstanding background restrictions on property rights” referred to potential takings, and not to trespasses, which the Court defined as “[i]solated physical invasions, not undertaken pursuant to a granted right of access.” 594 U.S. at 159–60. By excluding isolated entries onto property from the realm of takings, the Court recognized that common law privileges could apply only to conduct that could be considered a taking, such as repeated violations of a landowner’s property rights. Id. Thus, even if Cedar Point itself involved only the entry onto property, the Court understood that a more severe incursion could be privileged at common law.

Slip op. at 12.

Finally, the Court avoided analyzing what we think is the most interesting issue, the question of whether “necessity” is an exception to takings liability (something we wrote about in this article).

We acknowledge that some historical evidence suggests that, in certain circumstances, persons could be compensated for the taking of property out of necessity. See United States v. Russell, 80 U.S. 623, 629 (1871) (holding that property owners may receive “full restitution” for property seized during wartime); Mitchell v. Harmony, 54 U.S. 115, 134 (1851) (holding that army officer who seized plaintiff’s workmen and chattels for use during the war was “not a trespasser,” but that “the government is bound to make full compensation to the owner”). However, that evidence is not conclusive—even the Slaybaughs acknowledge that the Supreme Court has held that no compensation is owed in other contexts where the necessity privilege would apply, such as when property is destroyed as an inevitable consequence of conflict, or when the property would have benefitted an enemy in battle. Appellant Br. at 15–16. See, e.g., Nat’l Bd. of YMCAs v. United States, 395 U.S. 85, 90–92 (1969) (holding that no compensation is required for damage to property during a riot where troops “act[ed] primarily in defense of [the owners’] buildings” and rioters would have inflicted damage on the building anyway); United States v. Caltex, 344 U.S. 149, 155 (1952) (finding no takings claim where army destroyed oil facilities that were a “potential weapon of great significance to the invader”); United States v. Pacific R.R., 120 U.S. 227, 234–35 (1887) (holding that property damaged “through necessity and by mere accident,” including “damages caused by the enemy” during battle, are not compensable).

Nonetheless, we need not resolve this “necessity” defense to an actual taking. We reject the Slaybaughs’ claim not because of that defense, but because they have failed to identify any history or precedent establishing that the police have “taken” their “property” within the meaning of the Fifth Amendment when the police damaged the property while conducting a lawful arrest.

Slip op. at 13-14. 

This case does not resolve the issue and the U.S. Supreme Court has been presented with a petition asking the Court to resolve the issue, so stay tuned.

Slaybaugh v. Rutherford County, No. 23-5765 (6th Cir. Sep. 3, 2024)

Continue Reading No SWAT Takings In CA6: Police’s Power To Arrest Includes Privilege To Damage Property

Here’s the latest in a case and an issue we’ve been following.

Recall that the U.S. District Court for the Eastern District of Texas concluded that the City of McKinney, Texas was liable for the taking of Vicki Baker’s home, after city police officers destroyed a large part of it while apprehending a suspect who had taken refuge therein. The court awarded just compensation and the city appealed.

Now, the other shoe drops: in Baker v. City of McKinney, No. 22-40644 (Oct. 11, 2023), the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that because the invasion was necessary and a justified use of the city’s police powers, it does not owe compensation.

We’ve been down this path before, so we won’t go over it in detail (recall that the Tenth Circuit reached the same conclusion and the subsequent cert petition was denied by the Supreme Court). Our thoughts about the issue are in the amicus brief we filed in that case, in which we argued that an invocation of police power or necessity isn’t dispositive or outcome-determinative. 

The Fifth Circuit has now joined the Tenth:

We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.

Slip op. at 2.

The Fifth Circuit takes a slightly more nuanced view, rejecting the city’s invitation to hold that any substantial police power reason would be enough to avoid the obligation to provide compensation. Instead, “the mere fact that Baker’s property has been damaged or destroyed pursuant to the City’s police power cannot decide this case.” Slip op. at 8. So the government isn’t categorically exempt. (Silver linings and all that.)

But the opinion also concluded that the worm doesn’t turn in the property owner’s direction either: “[w]hat Baker needs, in other words, is historical or contemporary authority that involves facts closer to those at bar and where the petitioner succeeded under the Takings Clause.” Slip op. at 11. And apparently, there is “historically oriented legal scholarship” that shows that the “‘necessity’ or ’emergency’ privilege has existed in Takings Clause jurisprudence since the Founding.” Slip op. at 12. [Barista’s note: our own contribution to the legal scholarship was somehow overlooked by the court – the nerve!]

Read the court’s journey through the history for more. See slip op. at 12-17.

The bottom line: if the invasion by Five-O was necessary, then no taking. And here, Baker acknowledges that “it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons.” Slip op. at 17.

But that’s not the right question in these type of cases, is it? After all, the central question isn’t necessity, but of cost spreading. The court acknowledged that the core vibe of takings is the Armstrong principle:

[T]he Supreme Court has often stated that “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. This statement’s relevance to Baker, who is faultless but must “alone” bear the burdens of a misfortune that might have befallen anyone, is manifest.

Slip op. at 18. In short, although it acknowledges that Baker alone is bearing the cost for a public good, the Fifth Circuit washes its hands of the most important question: is it just and fair that this is so? To the Fifth Circuit, history says yes.

And this leads to the opinion ending on what appears to be another silver lining, the Fifth Circuit seemingly inviting a cert petition asking what it views as the only court capable of making that call:

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.

Id.

Will one be forthcoming? We sure wouldn’t bet against it.

Baker v. City of McKinney, No. 22-40644 (5th Cir. Oct. 11, 2023)

Continue Reading Fifth Circuit Kicks Down The SWAT Takings Door (And Boots The Issue Upstairs)

You remember that case we posted recently, from the U.S. District Court for the Eastern District of Texas in which the court granted summary judgment to a property owner after the city police damaged her home in the course of the police’s apprehension of a suspect. The court rejected the Tenth Circuit’s rationale in a similar case (which concluded that these are “police power” actions, and thus never a taking).

After that ruling, the remaining issues (was the city liable under section 1983, and if so what is the just compensation owed) were tried by a jury.

On June 20, 2022, this case went to trial. Two days later, the jury returned its verdict (Dkt. #74). The jury found the City was liable under § 1983 because it acted under color of state law when it violated Baker’s constitutional rights under the Fifth Amendment of the United States Constitution by depriving her of her property without providing just compensation, and that this violation proximately caused Baker’s damages. The jury awarded Baker $44,555.76 in just compensation for the cost of repairs to her real property, and $15,100.83 in just compensation for the loss in market value to her personal property. Baker elected to recover damages pursuant to § 1983.

Order at 2.

The city wasn’t going down without throwing up every obstacle, and its strategy included a motion for judgment as a matter of law (JMOL, or as us old-timers call them, “directed verdicts” or JNOV), and a motion for a new trial. The motion for new trial simply argued that the jury got it wrong, while the JMOL argued that the property owner didn’t adequately plead and pursue a section 1983 claim. The district court denied both motions. See Order (denying new trial), and Order (denying JMOL). 

We suggest you read them. Here’s a couple of highlights:

First, the City takes issue with the Court’s reliance on Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (Dkt. #85 at p. 4). The City correctly points out that Cedar Point did not involve physical damage from law enforcement action. The Court was well aware of this point at the time it rendered its opinion. That said, the Court merely drew general principles from the Supreme Court’s opinion to guide in the Court’s own analysis. Moreover, the City emphasizes the Supreme Court “confirmed that the common law authorizes law enforcement to enter private property to avert public or private harm, arrest a suspect, or enforce criminal law without compensation to the property owner” (Dkt. #85 at p. 3 (citing Cedar Point, 141 S. Ct. at 2079)). Cherry-picking this one quote from Cedar Point, the City makes the leap that “the Fifth Amendment does not apply to property damage caused by law enforcement when reasonably performing law enforcement tasks” (Dkt. #85 at p. 4). However, the Supreme Court in Cedar Creek confirmed law enforcement could lawfully enter property pursuant to the public interest—not destroy it, as law enforcement did to Baker’s property. For these reasons, the Court is not persuaded to re-evaluate its prior reading of Cedar Point or change its holding that the Fifth Amendment applies here.

Order (denying new trial). at 4.

Rejecting the city’s argument that while the owner might have adequately pleaded a 1983, she did not pursue it, the court held:

Based on these statements made by counsel at the pretrial conference, it cannot be argued that Baker no longer intended to pursue her claim under § 1983 at trial, or that the City lacked awareness that this claim would be adjudicated at trial. Thus, when the Pretrial Order is read in conjunction with the representations of the parties at the pretrial conference, it is evident that Baker did not waive her claim under § 1983 and that the City was on notice of it. See, e.g., Excel Modular Scaffold & Leasing Co. v. O.S.H.A., 943 F.3d 748, 755 (5th Cir. 2019) (holding defendant waived affirmative defense where defendant omitted defense from the pretrial order and repeatedly failed to mention its desire to pursue the defense at the pretrial conference despite being afforded multiple opportunities); SRSB-IV, Ltd. v. Cont’l Savs. Ass’n, 33 F.3d 1379, 1994 WL 487239, at *3 (5th Cir. 1994) (unpub.) (holding that party waived issues of liability and damages where party did not include the issues in the pretrial order and subsequently failed to raise the issues at the pretrial conference).

Order (denying JMOL) at 10.

A hearty well done to our colleagues at the Institute for Justice for this case.

Memorandum Opinion and Order (JMOL), Baker v. City of McKinney, No. 4:21-CV-00176 (E.D. Tex. Aug 26, 2022)

Memorandum Opinion and Order (New Trial), Baker v. City of McKinney, No. 4:21-CV-00176 (E.D. Tex. Aug 26, 2…

Continue Reading District Court Declines To Back Off Its “SWAT Takings” Verdict

Here’s the latest in a case we’ve been following for a long time.

In Baker v. City of McKinney, No. 25-40396 (May 22, 2026), the U.S. Court of Appeal for the Fifth Circuit, in an unsigned per curiam opinion approved of the property owner’s “reelection of remedy” to ask for relief under the Texas Constitution, after the original section 1983 just compensation claim was rejected.

You remember this case, one of those “SWAT takings” claims that actually succeeded in the district court. The Fifth Circuit, however, said that the Fifth Amendment doesn’t require compensation if the government is validly exercising its police power, and the U.S. Supreme Court (over the mild objections of two Justices) denied cert.

But that wasn’t the end of the road:

After our court denied panel and en banc rehearing, see Baker v. City of McKinney, 93 F.4th 251, 251 (5th Cir. 2024) (per curiam), and the Supreme Court denied Baker’s petition for writ of certiorari, see Baker v. City of McKinney, 145 S. Ct. 11, 11 (2024) (mem.), this case returned to the district court. In December 2024, Baker filed a “Reelection of Remedy,” requesting the district court “reenter judgment pursuant to Article I, Section 17 of the Texas Constitution.” The City opposed Baker’s reelection and moved to dismiss her Texas takings claim, arguing that the district court should decline to exercise supplemental jurisdiction. In June 2025, the district court granted Baker’s reelection of remedy, denied the City’s motion to dismiss, and entered final judgment in favor of Baker. The City timely appealed the district court’s opinion and order, final judgment, and other filings in favor of Baker on her Texas takings claim.

Slip op. at 3.

With the federal claim gone, the City asserted that the district court should not have continued to exercise its (supplemental) jurisdiction over the remaining state law claim. Often, we see federal courts, when asked to consider state law claims after the federal claims go away, back off. But not here.

The Fifth Circuit first considered the question of whether there was a Texas taking. The court noted that the standards for liability “are not the same.” Slip op. at 6. The court also noted that the Texas Supreme Court has affirmed that the Texas Constitution may require compensation even if the government has destroyed property in the course of apprehending criminal suspect. See Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980). Slip op. at 6-7. So yes, a property owner who has suffered damage resulting form a police power action may recover for a taking under the Texas Constitution.

The Fifth Circuit also rejected the city’s claim that Baker didn’t properly reelect her state law remedy after remand:

The district court plainly instructed the jury on Baker’s federal and state takings claims, and our court has explained that, “[w]hen a plaintiff prevails on both federal and Texas state law causes of action for the same injury, federal courts apply Texas’s one satisfaction rule, which requires the prevailing party to elect between the alternative claims for purposes of recovery.” Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016) (citation omitted). Baker was given the choice to make such an election and chose to pursue relief via § 1983, see Baker I, 84 F.4th at 382, and the City fails to identify “any authority holding that [Baker] cannot change h[er] election” in this case, where “the [§ 1983] claim [s]he elected to recover on [wa]s reversed” in Baker I, Malvino, 840 F.3d at 233. The “equitable nature” of Texas’s “one satisfaction rule counsels against such a stringent approach,” as there is no risk of “double recovery” for Baker post-Baker I. Id. at 233–34. As such, we do not disturb the district court’s application of Texas reelection of remedies law.

Slip op. at 7-8.

It’s good to see the courts approve what both looks like justice as well as dogged lawyering by Baker’s counsel.

Baker v. City of McKinney, No. 25-40396 (5th Cir. May 22, 2026) (per curiam)

There’s not a lot of new territory forged in the U.S. Court of Appeals for the Ninth Circuit’s opinion in Pena v. City of Los Angeles, No. 24-2422 (Nov. 4, 2025), holding that the city could not be liable for a taking after SWAT officers severely damaged a home in the course of apprehending a suspect who had taken refuge there.

After all, the other federal courts which have addressed the issue of whether a local government’s damaging or destroying a home in the course of apprehending a criminal suspect is a taking have all concluded no, although for a variety of reasons. Some say there’s no absolute right to exclude, with the issue turning on whether the police are acting pursuant to a valid warrant, incorporating by reference Fourth Amendment property law. Some say the owner has no expectations of exclusion of the government as a background principle. Some say the owner can and should anticipatorily mitigate by buying insurance.

And in what we find to be the least defensible justification, conclude that because the police are exercising the police power—are acting for the public’s health, safety, and welfare—there can be no taking—categorically. This is where Ninth Circuit’s panel majority came down, holding that LAPD SWAT’s use of force to dislodge a suspect who had taken refuge in Pena’s print shop was “authorized, reasonable, and lawful” (as the parties agreed), and thus could not be a taking. The court concluded:

At the time of the Founding, the principle of just compensation did not require payment in cases where, like here, the government reasonably and necessarily destroyed property in pursuit of a dangerous fugitive. History counsels that such reasonable and necessary destruction by law enforcement officers falls outside the scope of the Takings Clause.

Slip op. at 7-8. The court recognized a “public safety” (aka necessity) exception to the Just Compensation requirement, and concluded that if the police are acting reasonably to protect the public interest, there can be no taking. The bottom line:

Accordingly, we hold only that no taking occurs for the purposes of the Takings Clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety.

Slip op. at 14.

The court also acknowledged the circuit split on the mode of analysis (whether the “no taking” conclusion is absolute, or might the government be liable in some circumstances), and that two Supreme Court Justices (Sotomayor and Gorsuch) think there is something certworthy there. See slip op. at 9.

One Ninth Circuit judge concurred, and would have held “that the Los Angeles police’s actions fell under the search-and-arrest privilege that serves as a background limitation on all property rights, including Pena’s here, so no property right was infringed at all and, accordingly, no compensation is owed.” Slip op. at 31-32 (footnote omitted). Another categorical exception.

The entire opinion is well worth a read. The court walked through text, history, and tradition (no surprise there), and concluded that the “Supreme Court has never held that the State’s reasonable and necessary destruction of property under its police power constitutes a compensable taking.” Slip op. at 24.

To us, to conclude that because that police action was super-necessary it is not a taking, is to reject the foundation of the regulatory or de facto takings doctrine: that an otherwise valid exercise of some power other than the eminent domain power will, if it “goes too far” into the property rights of an owner, be deemed to be a taking requiring compensation giving the government a choice: stand down or pay up. Indeed, the more necessary for public health, safety, and welfare, the more it should be compensated. These are not Kelo-like actions where the government conduct has only predictable, or attenuated, public benefits, but a direct promotion of the public good.

That all said, we tend to focus on the Holmes-authored eight-Justice majority in Mahon and its “goes too far” language, contrasting it with the “government could hardly go on” phrasing later in the opinion. But we should pay more attention to the solo dissent of Justice Brandeis, who argued that because the Kohler Act was so necessary, it cannot be a taking, and cannot result in compensation. (And in our view, there’s no question the Kohler Act was, like, really necessary.)

This was a dissenting view, and why we think it is too bad that it is overlooked, is that the necessity principle seems to adopt and incorporate it, and it is troubling that Brandeis’ rationale is deployed to deny compensation, when a solid exercise of police power is not terribly relevant to the compensation question. But it is a minority view, and it should be seen as such.

But that’s just saying what won’t work. Thus far, the question of SWAT takings has not been taken up by the Supreme Court under any theory, despite at least a couple of very solid vehicles presenting the case. So what approach might interest the Court? Especially in a way that does not risk the Court’s majority, or even a minority in dissent, scaling back on what we view as the fundamental principles of Mahon?

This was the topic of our recent presentation at the 2025 Brigham-Kanner Conference, if you want to see our thinking on this topic. For our overall thinking on “emergency” takings like these, take a gander at an article we published a few years ago, “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).

Will there be more action in this case? We suspect so.

Pena v. City of Los Angeles, No. 24-2422 (9th Cir. Nov. 4, 2025)

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)

As we noted here (“SCOTUS Denies Review To Remaining Rent Control Takings Petitions: “Important and pressing question” (Just Not In This Case)“), a small silver lining in the Court declining review was the statement of Justice Thomas accompanying the denial, where he noted the issue is an “important question,” and set out a rough roadmap to future challenges.

Here’s a cert petition which asserts this is the case to take up the issue. Here’s the Question Presented:

New York’s Housing Stability and Tenant Protection Act of 2019 transforms a temporary rent- regulation system into a permanent expropriation of vast swaths of private real estate, without just compensation, in the name of “affordable housing.” Among other things, the Act prohibits owners—even of small and midsized apartment buildings like Petitioners—from reclaiming rental units for their own personal use, and grants tenants a collective veto right over condo/co-op conversions. As Justice Thomas has observed, the constitutionality of regimes like New York’s is “an important and pressing question” that has divided the courts of appeals and should be addressed in “an appropriate future case.” 74 Pinehurst LLC v. New York, 2024 WL 674658, at *1 (U.S. Feb. 20, 2024) (statement respecting denials of certiorari). Although case-specific vehicle concerns may have dissuaded the Court from granting other recent petitions that sought to challenge the constitutionality of rent-control regimes in general, this case is based on a substantially different record, targeting only a specific set of amendments to New York’s regulatory regime, and thus provides an ideal vehicle for this Court’s review.

The questions presented are:

1. Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings.

2. Whether this Court should overrule Penn Central or at least clarify the standards for determining when a regulatory taking occurs.

Here’s the unpublished Second Circuit decision.

Follow along this case here or on the Court’s docket here.

Petition for Writ of Certiorari, G-Max Mgmt, Inc. v. State of New York, No. 23-1148 (U.S. Apr. 18, 2024)

Continue Reading We Heard You, Justice Thomas: NY Property Owners File New Takings Cert Petition Challenging Rent Control

The situation in Hamen v. Hamlin County, No. 28671 (Feb. 10, 2021), a recent opinion by the South Dakota Supreme Court seems pretty bad, but a road we’ve gone down before. Believing that a suspect was inside, the local SWAT team (along with the county Special Response Team — drone and two armored vehicles included) damaged the mobile home belonging to the suspect’s parents:

To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

Well, it turns out the suspect wasn’t there. “Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.”

The owners of the trailer sued for $18k, asserting both inverse condemnation under the South Dakota Constitution (which has an “or damaged” clause), and for civil rights violations under 42 U.S.C. § 1983. The trial court granted the county and the sheriff summary judgment – no damaging.

In Hamen v. Hamlin County, No. 28671 (Feb. 10, 2021), the South Dakota Supreme Court agreed. The court understood it had a choice. Many states have concluded that the “or damaged” clause of their constitutions does not include situation where someone’s private property is, you know, damaged, as long as the damage was the result of “a manifestation of the police power.” Slip op. at 8. Other states go the other way, and hold that in some circumstances a property owner may seek just compensation when property is taken or damaged by law enforcement. 

After reviewing the language of article VI, § 13 of the South Dakota Constitution and decisions from other jurisdictions, we join the courts that have denied a right of compensation by eminent domain when law enforcement damages private property while executing a warrant or pursuing a fleeing felon. Courts which have denied compensation under similar eminent domain provisions of their state constitutions have properly applied “the framework established by [their] constitution” that a taking or damage claim arises from a public use function, rather than a police power function.

Slip op. at 15. In short, the damaging must — as in takings — be for a public use, and damage by the police in the course of their duties isn’t for public use. If that’s so, we ask: what did the inclusion of “or damaged” add to the South Dakota Constitution. We’re not sure (and on this, we defer to our SD colleagues, and to Molly Brady who has studied “damaging” clauses). Are they merely to recognize loss of access in eminent domain cases as compensable? 

This issue has bothered us for a while. Why wasn’t the damaging of the trailer “for public use?” It’s a good thing for police to go after potentially dangerous suspects, right? In our view, this really just boils down to a policy choice by the courts – do we want people suing for “self-executing” damages without a searching inquiry into issues usually associated with tort-y claims? As the South Dakota court noted, many states come down on the side of no.

We don’t think that has to be the case, and that courts don’t need to draw such a bright line of no liability, as we wrote in our amicus brief in support of the homeowner in the Colorado case, an invocation of “police power” isn’t the sole question the court should be asking, because the government’s assertion that it destroyed property for a police power purpose should be but one of the factors a court considers when an owner asserts the destruction resulted in a taking or damaging. Police power may be a compelling factor militating against compensation. But as we see it, the nature of the power being exercised should never be the sole factor, as South Dakota court concluded.

No better illustration of that than how the court addressed the second issue: whether the government actors were entitled to qualified immunity as a defense to the § 1983 claim. Check that out, starting on page 16 of the slip opinion. There, the analysis hinged on the reasonableness of the actors’ conduct. We’re not suggesting that the existing state of QI doctrine and analysis is satisfying to us, merely that hard lines of liability or no liability may not be the best way to examine these situations. You can see how, in some circumstances, a law enforcement action that damages property should be compensable. And how in others it might not be.

But the South Dakota Supreme Court instead chose a bright line rule of no takings or damaging liability at all once a court decides the action was undertaken under the police power. To that, we ask the question we’ve asked before: aren’t most “regulatory takings” cases based on the idea that the exercise of some power other than eminent domain (you know, like the police power) have the same effect as an affirmative seizure by eminent domain? 

Hamen v. Hamlin County, No. 28671 (S.D. Feb 10, 2021)

Continue Reading The “Or Damaged” Part Of South Dakota’s Constitution Doesn’t Really Add Much: Damages From Police Actions Are Neither Takings, Nor Damagings