M.D.Tenn.: 4A unreasonable search clause may apply to excessive damaging search

In executing a search warrant unreasonably causing excessive and unnecessary property damage, the takings clause of the Fifth Amendment almost never applies, but the Fourth Amendment’s unreasonable search clause may. Slaybaugh v. Rutherford Cty., 2023 U.S. Dist. LEXIS 149105 (M.D. Tenn. Aug. 24, 2023) (finding plaintiffs could state a claim):

In sum, the weight of authority indicates that claims based on damages caused by the exercise of police power in the course of enforcing criminal laws do not provide a basis for taking claims under the Fifth Amendment. [See Lech v. Jackson, 791 F. App’x 711 (10th Cir. 2019), cert. denied, 141 S. Ct. 160 (2020).] At the same time, however, several courts have found that plaintiffs have stated viable claims under the Fourth Amendment, where the exercise of police power was allegedly unreasonable or out of proportion to the suspected crimes. For instance, in Denby v. City of Casa Grande, the court summarily dismissed the plaintiffs’ Fifth Amendment claim arising from police officers’ near destruction of their home in the course of apprehending a suspect, on the basis that the “Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.” No. CV-17-00119-PHX-SPL, 2018 WL 1586650, at *3 (D. Ariz. Mar. 31, 2018) (quoting AmeriSource Corp., 525 F.3d at 1154). In later proceedings, however, the court denied the defendants’ motion for summary judgment on the plaintiffs’ Fourth Amendment claim arising from the same event, finding material factual disputes as to the reasonableness of the police officers’ intrusion and the amount of force used. Denby v. City of Casa Grande, No. CV-17-00119- PHX-SPL, 2023 WL 2787759 (D. Ariz. Apr. 5, 2023). In that case, the intrusion was great, and there were material factual disputes as to the reasonableness of the police officers’ belief that the suspect was inside the home (it was later discovered that he had been hiding under a tarp outside the home during the entire operation), as to whether police reasonably believed the suspect was armed and dangerous, and as to whether the destruction was either necessary or in line with the degree of risk posed by the suspect. The court recognized that, while officers executing a search warrant must occasionally “damage property in order to perform their duty,” it was well established that “unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively,’ may sometimes amount to a Fourth Amendment violation.” Id. at *3 (citations omitted).

Likewise, in Lawmaster v. Ward, the Tenth Circuit found that the plaintiff’s allegations that police officers left a pistol submerged in the dog’s water bowl and spread cigar and cigarette ashes throughout his home and bedding in the course of executing a search of the plaintiff’s home were sufficient to state a claim under the Fourth Amendment. 125 F.3d at 1349. Noting that “whether an officer’s conduct is reasonable is a highly fact-dependent inquiry that can only be determined on a case-by-case basis,” the court was “unable to hold the Agents’ conduct … was reasonably necessary to carry out the warrant’s purpose to search for and seize a machine gun and parts.” Id. at 1349-50. At the same time, however, the court found that the plaintiff did not allege a taking, even assuming the officers’ conduct was unreasonable. Id. at 1351; see also Johnson v. Manitowoc Cty., 635 F.3d at 336 (categorically rejecting the plaintiffs’ Fifth Amendment claim based on police officers’ destruction of his home in executing a search warrant associated with a murder investigation in which the plaintiff’s tenant was a suspect on the basis that the “Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain” (citing AmeriSource Corp., 525 F.3d at 1154, and Bennis, 516 U.S. at 452) but analyzing the plaintiffs’ Fourth Amendment claim under a reasonableness standard).

In this case, the plaintiffs do not allege that police officers acted unreasonably or exceeded their authority in executing the arrest warrants and apprehending Conn. They make no attempt, that is, to state a claim under the Fourth Amendment or under state common law for trespass, which is an option if police exceed the scope of their privilege to enter property. Based on all of the authority referenced above, as unfair as it seems, the court finds that the police officers’ act of apprehending Conn, in the course of which they damaged the plaintiffs’ home, constituted a valid use of their police power and it did not constitute a taking, for purposes of the Fifth Amendment. Because no taking occurred, the defendants had no responsibility to compensate the plaintiffs. The plaintiffs’ claims under the Fifth Amendment and § 1983, therefore, will be dismissed.