On September 3, 2024, the Sixth Circuit Court of Appeals decided Slaybaugh v. Rutherford Cnty[i], in which the court examined whether a county was liable to plaintiffs for damage done to the residence while the police executed a search and arrest warrant for the plaintiffs’ adult son who was in the residence and refused to come out. The relevant facts of Slaybaugh are as follows:
The Slaybaughs’ residence is in the Town of Smyrna, located in Rutherford County, Tennessee. On January 23, 2022, they agreed to let Conn stay at their house. There, later that evening, Mrs. Slaybaugh looked out a window and noticed two police cars parked outside her neighbor’s home. Curious as to what was happening, she went and opened her front door. Standing on the doorstep were two police officers, one with a gun drawn and the other holding a flashlight. The officers told Mrs. Slaybaugh that her son was wanted for questioning regarding a homicide investigation, and they asked her to step outside. In fact, Conn was suspected of killing Puckett, a Robertson County Sheriff’s Deputy, who was his ex-girlfriend.1 According to the Slaybaughs, this was when they first learned that their son was in trouble with the law.
After speaking with the officers, Mrs. Slaybaugh asked to go back inside. She said she would persuade her son to exit, but the officers refused to allow her back in her home. Finally, after several hours of waiting for Conn to emerge, the police left the residence, and Mrs. Slaybaugh decided to spend the night at her daughter’s house. Mr. Slaybaugh remained at a different property throughout this time.
The next morning, Mrs. Slaybaugh returned to her home, which was now surrounded by a perimeter of police. The officers had obtained an arrest warrant for Conn and a search warrant for the Slaybaughs’ residence. Mrs. Slaybaugh again asked to speak with her son, but police again told her that she was not permitted to enter the home.
More hours passed, and Conn still had not come outside. At that point, officers tried to smoke him out: they fired approximately 35 tear gas cannisters into the dwelling. They entered the home and arrested Conn shortly thereafter. No one suffered any serious physical injury. But according to the Complaint, the barrage of the house caused “extensive damage to both the internal and external structure of [their] home and the contents inside.” Compl., R. 1, PageID 4. Because of the officers’ actions, “cannisters of tear gas were lodged into the drywall, flooring was burnt, and nearly-new furniture was destroyed.” Id. According to the Slaybaughs, they have suffered approximately $70,000 in damages so far, and repairs are not complete.
Adding to their misery, the Slaybaughs’ home insurer denied coverage for the damage because it was “caused by a civil authority.” Ins. Letter, R. 1-3. But the civil authority would not pay either: the Slaybaughs requested compensation from the Town and County, both of which refused.[ii]
The Slaybaugh’s filed suit and asserted claims for the damage to the residence under the Fifth Amendment’s Takings Clause and the Tennessee Constitution.[iii] The county and other defendants filed a motion to dismiss the claims for failure to state a claim. The district court granted the motion and dismissed the case, holding that the police action did not amount to a “taking” under the Takings Clause of the Fifth Amendment. The Slaybaugh’s appealed to the Sixth Circuit Court of Appeals.
On appeal, the Slaybaugh’s argued that they are entitled to just compensation for the government-caused damage to their property, which amounted to a “taking” under the Takings Clause.
The court of appeals examined history, English common law, the intent of the Founders of the Constitution, as well as old and current court precedent related to the plaintiff’s claim under the Takings Clause of the Fifth Amendment.
The court of appeals noted that the Supreme Court, in Cedar Point Nursery v. Hassid,[iv] explained that common law tort privileges can help define what does and what does not amount to a “taking” of property under the Fifth Amendment.[v] In that case, the Supreme Court explained that
[M]any government-authorized physical invasions will not amount to takings” because “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.‘” Id. (quoting Lucas, 505 U.S. at 1028-29). The Court listed several “traditional common law privileges to access private property” as examples:
One such privilege allowed individuals to enter property in the event of public or private necessity. See Restatement (Second) of Torts § 196 (1964) (entry to avert an imminent public disaster); § 197 (entry to avert serious harm to a person, land, or chattels) . . . . The common law also recognized a privilege to enter property to effect an arrest or enforce the criminal law under certain circumstances. Restatement (Second) of Torts §§ 204-205. Because a property owner traditionally had no right to exclude an official engaged in a reasonable search, . . . government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners.[vi]
The court of appeals further explained
[T]he search-and-arrest privilege covers police use of force when carrying out a lawful arrest, is deeply rooted in the common law and our nation’s history, [and] is consistent with our concept of reasonableness under the Fourth Amendment…[vii]
Thus, for the privilege to apply, the officers must be engaged in a lawful arrest and/or search.
The court then summarized applicable rule in this case and stated
In sum, under the search-and-arrest privilege, law enforcement may forcibly enter a home to arrest someone, so long as (1) the arrest is lawful and (2) the use of force in carrying out the arrest is reasonable.[viii]
The court explained what constitutes reasonableness in carrying out the arrest. Specifically, the court stated
The Cedar Point Court clarified that only police “searches that are consistent with the Fourth Amendment and state law” are privileged, such that they “cannot be said to take any property right from landowners.” 594 U.S. at 161. And an officer must provide an “explanation and demand for admittance” before using force to enter a home and make an arrest, “unless the actor reasonably believes such demand to be impractical or useless.” Restatement (Second) of Torts § 206(1).[ix]
The court of appeals noted that this approach to the Takings Clause is consistent with current court precedent, which typically holds that “where police act unlawfully, injured parties can recover for any resulting property damage in a [state] action for trespass.[x] The court also noted that the Sixth Circuit has “repeatedly recognized property damage resulting from an unlawful search or seizure counts as a Fourth Amendment ‘injury’ that may be compensated.”[xi] The court of appeals further stated
[W]here police comply with the Fourth Amendment, we have held that no compensation is owed. See, e.g., Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 575-76 (6th Cir. 2016); Meeks v. Larsen, 611 F. App’x 277, 285 (6th Cir. 2015)
This is the case even where a homeowner suffers extensive property damage because of officers’ lawful conduct. As we have recognized, “officers executing search warrants on occasion must damage property in order to perform their duty.” Battle Creek Police Dep’t, 844 F.3d at 575 (quoting Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979)); see United States v. Whisnant, 391 F. App’x. 426, 430 (6th Cir. 2010) (finding that officers acted reasonably in cutting a hole in the interior wall of defendant’s house); United States v. Dawkins, 83 F. App’x 48, 51 (6th Cir. 2003) (holding that the use of a flash-bang while executing a search warrant was objectively reasonable, “[a]lthough Mr. Dawkins suffered some property damage from the device’s use (the shattered penny jar, a dented file cabinet, and burn marks on the floor)”); see also Pena v. Marcus, 715 F. App’x 981, 986-87 (11th Cir. 2017) (finding SWAT team’s damage to plaintiff’s doors and walls while executing search warrant was reasonable).[xii]
The court of appeals then examined whether “search and arrest privilege” applied in the Slaybaugh’s case. The court noted that in their Complaint, the Slaybaugh’s do not allege any facts to suggest that the search and arrest warrants were unlawful or unreasonably executed. In fact, the Slaybaugh’s, on appeal, conceded that “they do not mean to suggest that what the police did was unlawful.”[xiii] Therefore, the court of appeals held
By failing to plead facts suggesting that the search of their house was unlawful, they do not come close to establishing that police exceeded the scope of the search-and-arrest privilege. And because police acted within that privilege when they damaged the house, the Slaybaughs are not entitled to compensation for that damage under the Fifth Amendment.[xiv]
Thus, the court of appeals affirmed the decision of the district court and dismissed the suit in favor of the county.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
____________________________________________________
Citations
1 Conn later pleaded guilty to three charges related to Puckett’s death, including first-degree murder and aggravated arson. See Tyler Graves, Smyrna Man Charged in Murder of Robertson County Deputy Faces Life in Prison After Guilty Plea, Murfreesboro Post (Aug. 15, 2023), https://mainstreetmediatn.com/articles/murfreesboropost/killer-of-robertson-county-deputy-faces-life-in-prison-after-guilty-plea/.
[i] No. 23-5765 (6th Cir. September 3, 2024)
[ii] Id. at 2-4
[iii] Note: The state law claims will not be discussed in this article.
[iv] 594 U.S. 139 (2021)
[v] Slaybaugh at 6
[vi] Id. at 6-7 (emphasis added)
[vii]Id. at 10-11 (emphasis added)
[viii] Id. at 12 (emphasis added)
[ix] Id. (emphasis added)
[x] Id. at 17 (citing ., Brutsche v. City of Kent, 164 Wn.2d 664, 193 P.3d 110, 118 (Wash. 2008) (recognizing that city could be liable in trespass for police damage to property when police acted unreasonably while conducting the search); Onderdonk v. [**11] State, 170 Misc. 2d 155, 648 N.Y.S.2d 214, 219 (N.Y. Ct. Cl. 1996) (holding that the plaintiff is entitled to recovery on her trespass claim where police damaged property in the course of an unreasonably conducted search); Richardson v. Henderson, 651 So.2d 501, 504-06 (La. Ct. App. 1995) (awarding plaintiffs compensatory damages in trespass action where officers acted unreasonably while carrying out a search warrant).
[xi] Id. at 17-18 (citing ., Gardner v. Evans, 920 F.3d 1038, 1049-51 (6th Cir. 2019); Smith v. City of Detroit, 751 F. App’x 691, 696-97 (6th Cir. 2018); Spangler v. Wenninger, 388 F. App’x 507, 511-12 (6th Cir. 2010); Livingston v. Luken, 151 F. App’x 470, 475-76 (6th Cir. 2005). See generally Heck v. Humphrey, 512 U.S. 477, 487 n.7, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (clarifying that a plaintiff seeking damages for a Fourth Amendment violation under 42 U.S.C. § 1983 “must prove not only that the search [or seizure] was unlawful, but that it caused him actual, compensable injury” (internal citations omitted)).
[xii] Id. at 18 (emphasis added)
[xiii] Id. at 25
[xiv] Id. (emphasis added)
