The situation in Hamen v. Hamlin County, No. 28671 (Feb. 10, 2021), a recent opinion by the South Dakota Supreme Court seems pretty bad, but a road we’ve gone down before. Believing that a suspect was inside, the local SWAT team (along with the county Special Response Team — drone and two armored vehicles included) damaged the mobile home belonging to the suspect’s parents:

To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

Well, it turns out the suspect wasn’t there. “Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.”

The owners of the trailer sued for $18k, asserting both inverse condemnation under the South Dakota Constitution (which has an “or damaged” clause), and for civil rights violations under 42 U.S.C. § 1983. The trial court granted the county and the sheriff summary judgment – no damaging.

In Hamen v. Hamlin County, No. 28671 (Feb. 10, 2021), the South Dakota Supreme Court agreed. The court understood it had a choice. Many states have concluded that the “or damaged” clause of their constitutions does not include situation where someone’s private property is, you know, damaged, as long as the damage was the result of “a manifestation of the police power.” Slip op. at 8. Other states go the other way, and hold that in some circumstances a property owner may seek just compensation when property is taken or damaged by law enforcement. 

After reviewing the language of article VI, § 13 of the South Dakota Constitution and decisions from other jurisdictions, we join the courts that have denied a right of compensation by eminent domain when law enforcement damages private property while executing a warrant or pursuing a fleeing felon. Courts which have denied compensation under similar eminent domain provisions of their state constitutions have properly applied “the framework established by [their] constitution” that a taking or damage claim arises from a public use function, rather than a police power function.

Slip op. at 15. In short, the damaging must — as in takings — be for a public use, and damage by the police in the course of their duties isn’t for public use. If that’s so, we ask: what did the inclusion of “or damaged” add to the South Dakota Constitution. We’re not sure (and on this, we defer to our SD colleagues, and to Molly Brady who has studied “damaging” clauses). Are they merely to recognize loss of access in eminent domain cases as compensable? 

This issue has bothered us for a while. Why wasn’t the damaging of the trailer “for public use?” It’s a good thing for police to go after potentially dangerous suspects, right? In our view, this really just boils down to a policy choice by the courts – do we want people suing for “self-executing” damages without a searching inquiry into issues usually associated with tort-y claims? As the South Dakota court noted, many states come down on the side of no.

We don’t think that has to be the case, and that courts don’t need to draw such a bright line of no liability, as we wrote in our amicus brief in support of the homeowner in the Colorado case, an invocation of “police power” isn’t the sole question the court should be asking, because the government’s assertion that it destroyed property for a police power purpose should be but one of the factors a court considers when an owner asserts the destruction resulted in a taking or damaging. Police power may be a compelling factor militating against compensation. But as we see it, the nature of the power being exercised should never be the sole factor, as South Dakota court concluded.

No better illustration of that than how the court addressed the second issue: whether the government actors were entitled to qualified immunity as a defense to the § 1983 claim. Check that out, starting on page 16 of the slip opinion. There, the analysis hinged on the reasonableness of the actors’ conduct. We’re not suggesting that the existing state of QI doctrine and analysis is satisfying to us, merely that hard lines of liability or no liability may not be the best way to examine these situations. You can see how, in some circumstances, a law enforcement action that damages property should be compensable. And how in others it might not be.

But the South Dakota Supreme Court instead chose a bright line rule of no takings or damaging liability at all once a court decides the action was undertaken under the police power. To that, we ask the question we’ve asked before: aren’t most “regulatory takings” cases based on the idea that the exercise of some power other than eminent domain (you know, like the police power) have the same effect as an affirmative seizure by eminent domain? 

Hamen v. Hamlin County, No. 28671 (S.D. Feb 10, 2021)