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 Appx. 711 (10th Cir. 2019) (unpublished).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 badly damaged the couple’s home by using tear gas grenades when arresting the couple’s son in the home. The Sixth Circuit rejected the categorical approach adopted in Johnson and Lech. Instead, it determined that while an exercise of police power could potentially constitute a taking, the common law gives officers a “search-and-arrest privilege” that allows them a right to enter private property when effecting a lawful search or arrest – and to damage the property if necessary. This common law understanding informs the Takings Clause analysis because it means that ownership of property does not bring with it a right to exclude an officer seeking to conduct a lawful search or arrest. Thus, nothing is “taken” from a property owner when an officer damages property in the course of such a search or arrest. Similarly, in Baker v. City of McKinney, Texas, 84 F.4th 378 (5th Cir. 2023), the court found that an “emergency” or “necessity” privilege allowed officers to damage property if necessary to effect a lawful arrest.
The Fourth Circuit has not considered a case closely on point. However, in Yawn v. Dorchester County, 1 F.4th 191 (4th Cir. 2021), a case involving a county spraying aerial pesticides to combat the Zika virus and in the process allegedly killing the plaintiff’s bees, the court stated that “Government actions taken pursuant to the police power are not per se exempt from the Takings Clause,” suggesting that the Fourth Circuit may be more closely aligned with Slaybaugh and Baker than with Johnson and Lech.
Under the approach endorsed in Slaybaugh and Johnson, an officer who inflicts damage beyond what is reasonable or necessary would seem to be acting outside the common law privileges identified by the courts. Such an officer may therefore commit a taking that is compensable under the Takings Clause. That is a potentially important exception, but the general rule remains clear: all four decisions on point agree that property damage inflicted by an officer conducting a lawful search or arrest in a reasonable manner does not implicate the Takings Clause.
At least that’s the general rule for now. The Institute for Justice, a nonprofit law firm dedicated to fighting what it sees as abuses of government power, has filed a petition for certiorari asking the Supreme Court of the United States to review the Baker case. Some legal commentators have criticized existing Takings Clause jurisprudence, which may increase the odds that the Supreme Court will agree to hear the case. See, e.g., Tristan Reagan, Comment, Dude, Where’s My House: The Interaction Between the Takings Clause, The Police Power, the Militarization of Law Enforcement, and the Innocent Third-Party Property Owner, 58 Tulsa L. Rev. 99 (Fall 2022); Zachery Hunter, You Break It, You Buy It – Unless You Have a Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation, 82 Ohio St. L.J. 695 (2021).
Potential liability for a taking under the North Carolina Constitution. The state constitution does not have an obvious counterpart to the Takings Clause. However, Article I, section 19 of the state constitution provides that no person shall be “deprived of his life, liberty, or property, but by the law of the land.” The Supreme Court of North Carolina has held that this prohibits uncompensated governmental takings of property. See Kirby v. North Carolina Department of Transportation, 368 N.C. 847, 853 (2016) (noting that the court has “long recognized the existence of a [state] constitutional protection against an uncompensated taking”).
No case law addresses whether or when our state constitution requires compensation for property damage caused by police. Although the appellate division often deems the protections of the state and federal constitutions to be coextensive, it need not do so and there are circumstances in which the state constitution has been held to be more protective of individual rights than the United States Constitution. A few courts in other states have held that police damage to property is a compensable taking under their state constitutions. See generally Samuel D. Hodge, Jr., Will the Government Reimburse an Innocent Property Owner Whose Home Is Damaged During Police Activity? Don’t Hold Your Breath, 48 Real Est. L. J. 424 (Spring 2020) (collecting cases across jurisdictions and noting that decisions in Texas, Minnesota, and New Jersey have found damage inflicted by police to be a taking under state law).
Potential liability under section 1983 and the Fourth Amendment. Another potential basis for liability is 42 U.S.C. § 1983, which provides that any person who, acting under color of law, subjects another to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” This section is sometimes referred to as a “constitutional tort” because it may be used to sue government officials for alleged deprivations of constitutional rights.
As to property damage inflicted by police, the most commonly invoked constitutional provision is the Fourth Amendment’s Search and Seizure Clause, which prohibits “unreasonable searches and seizures.” The Supreme Court has recognized that police “on occasion must damage property in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 257 (1979). However, it has also stated that “[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment.” United States v. Ramirez, 523 U.S. 65 (1998).
The Fourth Circuit considered a claim that police violated the Fourth Amendment by causing property damage in Cybernet, LLC v. David, 954 F.3d 162 (4th Cir. 2020), a case arising out of property damage allegedly caused by officers executing a search warrant at a sweepstakes parlor. The court applied the standard of “objective reasonableness” and determined that the damage inflicted was “incidental” rather than “excessive” and so did not amount to a Fourth Amendment violation. Importantly, the court stated that reasonableness does not necessarily require the use of the least intrusive means to effect a search.
Section 1983 litigation comes with a number of procedural complexities, including the potential for qualified immunity to protect officers sued in their individual capacities. Still, a plaintiff who can establish that officers inflicted an excessive or unreasonable degree of property damage may have a viable claim.
Like the Takings Clause, though, section 1983 and the Fourth Amendment have nothing to offer to property owners like the plaintiffs in Slaybaugh and Baker. The plaintiffs in those cases acknowledged that the officers’ actions were reasonable and necessary, foreclosing any Fourth Amendment claim. Nonetheless, through no fault of their own, the plaintiffs suffered tens of thousands of dollars of uncompensated property damage.
Potential liability under state tort law. A plaintiff seeking compensation for property damage inflicted by an officer might potentially bring state law tort claims, such as claims for trespass or negligence. There is little case law illuminating how such claims might work. Perhaps that is because of the various immunities that could potentially apply to such claims. Immunities under state law are discussed in this paper by my former colleague Trey Allen, now a justice on the Supreme Court of North Carolina. It seems unlikely that an officer conducting a lawful search or arrest in a reasonable manner could be held liable for these torts. Taking trespass as an example, an entry pursuant to a warrant is legally authorized and therefore not a trespass. Similarly, property damage inflicted during a reasonable search is unlikely to be viewed as negligent. Therefore, like section 1983, these tort claims might provide a remedy for property damage that is unnecessary and excessive but seem unlikely to reach lawful and reasonable conduct.
The outcome of the search or arrest doesn’t matter. When I talk to citizens about this issue, they often ask, “What if the police tear my house up and they don’t find anything? They have to pay then, right?” That’s an understandable question, but from a legal perspective, it misses the boat. What counts legally is whether the police are acting lawfully and reasonably at the time they damage the property, not whether the search was justified in hindsight. In other words, if officers execute a lawful search warrant in a reasonable manner, whether the search turns up crucial evidence or no evidence at all, the police are not responsible for property damage they cause. Likewise, reasonable damage inflicted during an attempt to make a lawful arrest is not compensable under the law, regardless of whether officers succeed in making the arrest or not, or whether the prosecution of the arrestee bears fruit or not.
Just because police aren’t required to pay doesn’t mean they can’t pay. Even if the police are not legally obligated to pay to repair damage that they cause, they may choose to do so in the interest of fairness or in order to maintain good relationships with the community. In my limited experience, police are more likely to offer to pay when the property that is damaged belongs to an innocent third party rather than to a suspected criminal. A person whose property is damaged and who is denied reimbursement by a municipal police department could potentially “appeal” the denial to the city manager or city council, though I’m not sure how often that happens or how frequently it is successful.
As a final note, some readers might be wondering whether a homeowner’s insurance will pay to repair damage caused by policy. The answer may depend on the details of the policy in question, but in both Slaybaugh and Baker the insurance company denied the homeowner’s claim on the grounds that the damage was not caused by a source covered by the policy.
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