Mollie Slaybaugh, et vir v. Rutherford County, Tennessee, et al.

A few weeks ago, this Court denied certiorari in Baker v. City of McKinney, 23-1363, a case about whether the Fifth Amendment’s Takings Clause requires compensation when a SWAT team destroys an innocent person’s property while pursuing a fugitive. The Fifth Circuit had held that there is an implicit exception to the Takings Clause when the government’s actions were “objectively necessary.” In a statement respecting the denial of certiorari, Justice Sotomayor, joined by Justice Gorsuch, wrote that “[w]hether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.” Baker, No. 23-1363, 2024 WL 4874818, at *2 (U.S. Nov. 25, 2024). The facts of the present case are materially identical to Baker, but the Sixth Circuit panel below denied compensation on different grounds: Because the Slaybaughs had no legal right to exclude the police, the panel reasoned, the destruction of their house was not actually a deprivation of their property rights. In support of this conclusion, the panel relied on dicta from Cedar Point Nursery v. Hassid, where this Court noted that lawful searches do not “appropriate” an owner’s traditional right to exclude others from his or her property. The question presented is: “Does a common law privilege to access property categorically absolve the government’s duty of just compensation for property it physically destroys?”