42 USC § 1983 action to recover for property damage; Whether the damages plaintiffs’ home received when police executed a search warrant entitled them to damages for a “taking” under the Fifth Amendment; “Police power” exception to the Takings Clause; What counts as a “taking”; Common law tort privileges to access private property; Restatement (Second) of Torts §§ 204-206; The search-&-arrest privilege; Cedar Point Nursery v Hassid

In this case seeking compensation for damages the police caused during the execution of a search warrant, the court declined to apply a categorical “police powers” exception to the Takings Clause. But it held that the officers’ actions in executing a search warrant and arresting plaintiffs-Slaybaughs’ son fell under the search-and-arrest privilege. The police caused severe damage to plaintiffs’ home when executing a search warrant and arresting their son (C) for murder. They claimed their home sustained over $70,000 in damages, and that their insurance denied coverage because “because it was ‘caused by a civil authority.’” They alleged that the actions of the police constituted a “taking” under the Fifth Amendment. The district court granted defendants’ motion to dismiss for failure to state a claim. It held that plaintiffs’ “claim was barred under a categorical rule that, when the government acts pursuant to its ‘police powers,’ its actions are always exempt from the Fifth Amendment’s just compensation requirement.” It cited decisions from other circuits in support. On appeal, the court declined to apply the categorical “police powers” exception adopted by the district court. First, it was “questionable whether such an approach comports with the text and history of the Takings Clause or with precedent interpreting it.” In addition, “a categorical exception would run afoul of Supreme Court precedent recognizing that the government’s exercise of its police powers can, in some circumstances, amount to a taking.” But the court concluded plaintiffs failed to state a claim because the complaint showed “that the officers’ actions while arresting [C] were privileged, so police did not infringe on the Slaybaughs’ legally cognizable property interests.” The court noted that under “modern tort law, the authority to arrest ‘carries with it the privilege to enter land in the possession of another for the purpose of making such an arrest, if the person sought to be arrested is on the land or if the actor reasonably believes him to be there.’” The court concluded that “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.” And it held that the privilege applied here. Because plaintiffs failed “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.” Affirmed.