CA6: Some reasonable property damage during an arrest is not subject to 5A takings clause

As long as the police were reasonable in their actions, some damages to an arrestee’s property is not subject to the Fifth Amendment’s takings clause. Slaybaugh v. Rutherford Cty., 2024 U.S. App. LEXIS 22277 (6th Cir. Sep. 3, 2024):

The Supreme Court instructs us to look to common law privileges on property rights to determine whether a claimant has alleged that his property was taken for public use under the Fifth Amendment. One such privilege—the search-and-arrest privilege—provides that police are not liable for damage to property that occurs when they carry out a lawful search or arrest. That privilege is rooted in the common law, has been long recognized in our court system as a defense to trespass claims, and maps neatly onto our caselaw holding that persons who suffered an unreasonable search or seizure may be entitled to damages under the Fourth Amendment. Moreover, because we hold that the search-and-arrest privilege controls here, we need not conclusively decide whether another privilege, such as the necessity privilege, could also exempt law enforcement from takings liability. We only hold that in cases where police damage property while carrying out a lawful search or arrest, property owners are not entitled to compensation under the Takings Clause for that damage as long as the officers’ conduct is reasonable.

2. The Search-And-Arrest Privilege Applies Here

Having found that the search-and-arrest privilege can exempt law enforcement from takings liability, we next consider whether it exempts the police conduct at issue here. Based on the facts in the Slaybaughs’ Complaint, we conclude that it does. The Slaybaughs did not allege any facts suggesting that the search and arrest warrants justifying the officers’ actions were unlawful, or that police unreasonably executed those warrants when arresting Conn. To the contrary: they concede on appeal that they do not “mean to suggest that what the police did was unlawful.” Appellant Br. at 48. 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.