In an upsetting but not surprising decision, the Sixth Circuit has held that damage to property caused by police in the course of their duties, including finding and apprehending those who committed or are suspected of having committed a crime, is not compensable as a “taking” of property within the meaning of the Takings Clause of the US Constitution. Slaybaugh v. Rutherford Cnty., 2024 WL 4020769 (6th Cir. 2024). In this case, a mother and son were in her house and she could not convince him to give himself up to the police. She exited the home and they fired 35 tear gas cannisters into the home, causing $70,000 of damage to the house and the contents inside. The insurance company would not cover the loss because it was “self-inflicted” and the owner’s suit against the city failed because the longstanding rule is that the police cannot be hampered in carrying out their public safety duties by worrying about whether they will result in liable for property damage. The result seems highly unfair to the innocent property owner but the public policy reason for the rule is understandable. It is also the majority approach of courts in the United States.
The court noted that the law authorizes police to enter land to arrest someone who is there and to use force to accomplish this goal. They are correspondingly entitled to “break and enter” as long as their conduct is “reasonable.” Finally, neither those officers nor the government entity for whom they work is liable for property damage that occurs during the course of lawful exercise of their police powers. The court cited other courts that have come to the same conclusion, see, e.g., Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023), and that this rule persists even after the Supreme Court’s recent ruling in Cedar Point Nursery v. Hassid.