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)