Law enforcement officers sometimes damage property in the course of their work. For instance, they may break down a door while executing an arrest warrant, or may pull up floorboards in the course of conducting a search. This post addresses whether police are liable for the damage they cause. Potential liability under the Takings Clause. The Takings Clause of the Fifth Amendment provides that private property may not “be taken for public use, without just compensation.” When police inflict severe damage to real property, a commonly-litigated question is whether the damage requires compensation under the Takings Clause. Several federal appellate courts have considered that question in recent years. All of them have said no on the facts before them, though the various courts relied on different rationales that suggest different limits to their holdings. Some courts have ruled flatly that the Takings Clause applies only to the use of the eminent domain power, not to actions taken by government officials in the exercise of their police power. See Johnson v. Manitowoc County, 635 F.3d 331 (7th Cir. 2011); Lech v. Jackson, 791 Fed. Appx. 711 (10th Cir. 2019) (unpublished). This absolute approach suggests that even excessive or unnecessary property damage may not be a “taking” so long as it was inflicted in connection with the exercise of police power. Two more recent decisions have adopted more nuanced views. In Slaybaugh v. Rutherford County, Tennessee, __ F.4th __, 2024 WL 4020769 (6th Cir. Sept. 3, 2024), a couple filed suit after officers [...]
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