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)