South Bend woman takes city to Seventh Circuit over home damage caused by police

CHICAGO (CN) — In June of 2022, a SWAT team raided the home of a woman named Amy Hadley in South Bend, Indiana. Police were looking for a wanted fugitive, and had connected him to Hadley’s home.

The SWAT team didn’t find their fugitive there, but in the process of searching for him they ripped apart Hadley’s home — to the point where it was uninhabitable for days afterward, she claims in court documents. Busted windows, holes in the walls, tear gas soaked into porous surfaces.

Hadley sued South Bend and its police department to have them pay for the damages to her home in the botched raid. She claims violations of property rights under the state and federal constitution — especially the right not to suffer the government taking property without just compensation outlined in the Fifth Amendment. But the federal court tossed most of her complaint last July, finding damage like the kind the police inflicted on Hadley’s home “is not compensable.”

“Ms. Hadley has not cited any authority for the proposition that damage from lawful police investigations or searches are compensable under the Fifth Amendment (aside from a state tort or other claim). To the contrary, a long tradition counsels that lawful policing activities are not Fifth Amendment takings,” U.S. District Judge Damon Leichty, a Donald Trump appointee, concluded.

On Wednesday, Hadley took the case to the Chicago-based Seventh Circuit Court of Appeals. Her attorney, Marie Miller, argued that police shouldn’t be able to avoid liability for wrecking an innocent person’s home — even if the damage they cause is supposedly part of the job.

“When, as here, officers on the government’s authority intentionally destroy an innocent person’s property, while trying to apprehend a fugitive, that set of facts invokes the per se takings rule,” Miller said.

Miller’s arguments faced pushback from U.S. Circuit Judge Michael Scudder, a Trump appointee. He focused on the role of “innocence” that Miller outlined, posing a hypothetical about police destroying a door while raiding a “stash house” under a no-knock warrant.

“The search begins with the front door being knocked down. Takings claim as to the complete destruction of the front door?” Scudder asked.

Miller said the answer would depend on the context of the situation, including whether or not the owner of the house was found to be culpable for the “stash.” She argued that the analysis would be different for a property owner who has not committed a public wrong versus one who has.

“Innocence does matter for takings analysis, it goes back to the whole animating purpose of the Fifth Amendment,” she said.

However, Miller also said “there could be” takings claims raised even in situations more nebulous than Hadley’s. Responding to another hypothetical Scudder raised, one where police damaged furniture while searching for electronic devices, she argued police liability for damages would depend on what actions they were authorized to take.

“If they weren’t authorized to do what they did, if they went well beyond what they were authorized to do, then there’s no taking. There must be authorized action,” Miller said.

Attorney Joseph Smith of the Indiana law firm Clark Johnson & Knight, arguing on behalf of South Bend, reiterated that damage caused by police has historically been excluded from Fifth Amendment coverage.

“Damage caused by law enforcement in the course of their law enforcement duties has never been considered a taking under the Fifth Amendment,” he said.

He pointed to a dearth of court precedent supporting Hadley’s position, and a surplus of precedent supporting South Bend’s. But as with Miller, Scudder challenged Smith with a hypothetical: What if the tear gas police fired into Hadley’s home had somehow caught fire, and left her homeless?

“What then?” Scudder asked.

Smith responded that would be an Indiana state law issue, not a constitutional violation.

“If the police negligently started a fire that burned the house down, that would be an issue for state tort law, not a takings issue,” he said.

Smith conceded, at Scudder’s prompting, that Hadley might still be able to raise a Fourth Amendment claim for money damages in the hypothetical the judge proposed. The Fourth Amendment protects people from “unreasonable searches and seizures” by the government.

“The plaintiff who owns the house can always claim that the police acted unreasonable,” Smith said. “That it was unreasonable for the police to use these tear gas grenades, flashbangs, to break down a door. That option is always available.”

The attorney stressed the difference between the Fourth and Fifth Amendments as they relate to police damage.

“The amount of the damage doesn’t matter for whether or not it was a taking,” Smith said. “It matters for whether the search was reasonable, but a search doesn’t become a taking because it does a lot of damage.”

Miller, on rebuttal, offered another way for the court to consider the issue: The Seventh Circuit could simply vacate the lower court’s judgment and remand the case for further proceedings without reaching a decision on the takings principles.

She argued the lower court had used an improper political framework and should have “another go,” taking into consideration recent statements by Supreme Court Justices Sonia Sotomayor and Neil Gorsuch on similar takings issues in the case Baker v. City of McKinney .

The Supreme Court justices noted last November that “only a few Courts of Appeals have weighed in on the extent to which the takings clause applies to exercises of the police power.”

The justices further argued that “how the takings clause applies when the government destroys property pursuant to its police power” is a question that would benefit from more lower court consideration.

Returning Hadley’s case to the lower court, Miller argued, would have the “advantage of heeding the call by Justice Sotomayor and Justice Gorsuch recently in their statement concerning Baker .”

The appellate panel on Wednesday, rounded out by U.S. Circuit Judges Joshua Kolar and Ilana Rovner, Joe Biden and Ronald Reagan appointees respectively, took the case under advisement but didn’t say when they’d deliver a ruling.

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