Property Rights

South Dakota Supreme Court Rules Property Owners not Entitled to Compensation for Severe Damage to their Home Inflicted by Police During a Law Enforcement Operation

The ruling denies relief under a state constitutional provision requiring compensation for "taking" or "damaging" of private property by the government. Many other states have similar provisions.

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On February 10, in Hamen v. Hamlin County, the Supreme Court of South Dakota ruled that the government is not liable for police destruction of citizens' property under Article VI, Section 13 of the state constitution, which requires payment of "just compensation" when the private property is "taken for public use, or damaged." The case is one of a long series of rulings in which state and federal courts have held that the government is not required to pay takings compensation in cases where law enforcement operations damage or destroy private property. Robert Thomas, a leading commentator on takings law, has a helpful summary of the case at the Inverse Condemnation blog.

As Thomas notes, the case arose because the police were under the mistaken impression that Gary Hamen, a suspected wanted in connection with various crimes, was holed up in his parents' mobile home. They thereby proceeded to inflict some $18,000 in damage on the home, in the process of trying to force Gary to come out and surrender (which, of course, he could not do because he wasn't actually there in the first place). Despite the massive damage inflicted on the home of the completely innocent Hamens (the authorities do not allege that the parents had any role in their son's alleged criminal activities), the Court ruled that no compensation was owed under the Takings and Damagings Clauses of the state constitution.

The standard rationale for this result, also adopted in Hamen, is that there is no taking in cases where the government is exercising its "police power," which is what law enforcement agencies do when they destroy property in the process of pursuing suspects and other similar activities.  The police power is thereby distinguished from the use of "eminent domain" to seize property for some "public use" by condemnation. As the South Dakota Supreme Court put it:

[W]e 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.

I criticized that rationale in a post analyzing the 2019 Tenth Circuit decision in Lech v. Jackson, which ruled there was no taking, under the federal Constitutoion, in a case where the police destroyed an innocent family's home in the process of pursuing a suspected shoplifter:

The distinction between "police power" and "eminent domain"—with only the latter leading to a taking—is a false dichotomy. In many situations, courts have ruled that a taking has occurred even if the government did not try to use eminent domain—its authority to formally condemn private property for public use. That includes numerous cases involving both regulatory takings and physical invasions.

The fact that the "police power" may have been involved does not normally immunize the government from takings liability…. [T]he police power extends to government actions "for the protection of public health, safety, and welfare." Modern jurisprudence defines these concepts very broadly. Yet, in many contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety.

Cases where the government does go through the formal process of eminent domain often also involve the protection of health or safety. For example, the condemnation of property to build a road can increase health and safety if the new road is safer than the old, and thereby reduces the rate of traffic accidents. Yet, the government could not use that fact to seize the property and build on it without paying compensation.

A "police power" exception can potentially justify denying compensation in cases where the property itself—or the owner's use of it—poses a threat to public safety, as when the owner uses the property to commit a crime, or in cases where his use of it can cause the spread of dangerous communicable diseases (this is why courts have generally denied takings compensation to property owners harmed by Covid-19 shutdown orders).

But that doesn't apply in cases where the government damages or destroys the property of innocent people for the purpose of apprehending suspects or otherwise enforcing the law against third parties. The latter scenario is little different from other cases where the government seizes or destroys property for the purpose of advancing some general public interest, such as building a road, or flooding one area to prevent greater damage elsewhere. Such actions may well be beneficial. But that doesn't mean the government can deny takings compensation. As the Supreme Court put it in Armstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

Sadly, this is one of a number of areas where current jurisprudence gives law enforcement a pass on egregious behavior that would be ruled unconstitutional in almost any other context, as under the doctrine of qualified immunity (which also comes up in other parts of Hamen ruling itself, where the court considers other claims made by the plaintiffs). To the argument that allowing takings liability would make police unduly hesitant to enforce the law, I would respond that is often a feature rather than a bug. Law enforcement should be more sensitive to the harm it inflicts on innocent people during the course of its operations. Sometimes, it may be better to let a suspect get away than to inflict massive damage on innocents in order to apprehend him.

Moreover, any extra sensitivity is likely to be modest in nature, since individual officers are unlikely to have to pay for the damage out of their own salaries.

All of these points apply to Hamen no less than to similar cases decided under the Takings Clause of the federal Fifth Amendment. But Hamen is particularly egregious because it denied compensation under a state constitutional provision that requires compensation for government "damaging" of property, as well as takings. As Harvard Law School Professor Molly Brady explains in a path-breaking article on the subject (I discussed her article here), the whole point of "damagings clauses" (which have been adopted by 27 state constitutions), is to require compensation in situations where the government damages or destroys property in ways that might not qualify as "takings," and where there has not been any use of eminent domain. Even if you can argue that police operations like the ones in Hamen and Lech do not really "take" property, it's hard to conclude they don't "damage" it.

As the Hamen court recognizes, there is a divergence among state courts on this issue. Appellate courts in  California, Georgia, Oklahoma, and Washington, have all ruled that damagings clauses do not apply to law enforcement operations; South Dakota has now joined them. By contrast, state supreme court rulings in Iowa, Minnesota, and Texas have all gone the other way. The latter group of states is right, and I hope their position will ultimately prevail in the long run.

The issue might also be rendered moot if the federal Supreme Court ever addresses this issue under the Takings Clause of the Fifth Amendment and overrules cases like Lech v. Jackson. But the Court refused to hear the Lech case itself, and I am far from certain it is going to take up this question anytime soon.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. So in order to have “my home is my castle”, it damn well has to BE a castle?

    1. Don’t give them an excuse to break out the tanks and trebuchets

  2. I’d just leave it there and then let them try to make an issue about it being decrepit.

    1. The police are the agents of the prosecutor. End all lawyer self dealt immunities, including those of the Supreme Court, the Congress, and the President.

  3. I might ask what probable cause they had to believe he was in his parents mobile home? If they lacked probable cause then that might give them another avenue to sue.

    1. The fact that he regularly dwelt there (with his parents’ permission), had been there recently, and was in fact in the immediate vicinity? Did you even read the opinion? BTW, note the disingenuous manner in which Somin refers to the Hamens’ “home”: it was their home in the sense of being a mobile home (as it is called) which they owned and allowed their criminal son to live in, not in the sense of being their dwelling.

  4. I just don’t get how this passes constitutional muster. The government coming in to trash your property is one of those jolly activities that the colonists wanted to get away from when we broke off from British rule. They didn’t want their new government doing it either so they wrote the 4th amendment.

    Yet this kind of decision, like civil forfeiture, just seems to just sail through the court system with almost no impediment.

  5. Wouldn’t the federal takings clause be applicable to states, which would be permitted to be more protective of their citizens’ rights, but not less protective?

  6. In each of the regulatory takings cases Professor Somin cites, the police are not in hot pursuit of somebody and an army is not waging war. Rather, a government body has made a decision calmly, and ith full opportunity for deliberation.

    Professor Somin may not agree with the distinction between government acting legislatively with calm deliberation and police or armies acting in the heat of the moment. But it is a standard one the law makes.

    1. That distinction makes precious little difference to the person who’s property has been taken and/or destroyed. Perhaps the law shouldn’t make such a distinction.

    2. So in cases were a government agent stops, scratches his chin for a bit, mulls over what is about to happen, and then still concludes it best to run roughshod over some rando’s home is BETTER to you??? That is MORE defensible???

      Surely that can not be your position. Please help me understand you better on this. I am totally open to hearing a rational justification for “FYTW” as a reason to not make reparations to someone who is wronged… but this doesn’t seem like a stance one should take. I have to be misunderstanding you… right?

      1. Um, no, you have it backwards. Read it again.

    3. This has no relevance to the principle embodied in the takings clause, which is that when the government does something for the general welfare, the cost must fall on the general population, not some designated fall guy.

      1. Let’s just be clear: the “designated fall guy” is an insurance company, so the choice is between the taxpayers and the policyholders. I know which group is better able both to internalize the cost of harboring criminals and to bear the losses which cannot be prevented.

        1. I know which group is better able both to internalize the cost of harboring criminals and to bear the losses which cannot be prevented.

          The taxpayers, right?

          Well, I guess they don’t internalize the costs, but do the policyholders do that either? “I’m willing to pay $2.00 extra so I get compensated if the police destroy my property,” sounds pretty abstract.

          And does normal homeowners’ insurance even cover this sort of thing?

          Besides, what does it matter? No doubt Bill Gates is better able to bear the costs than the Hamens. Maybe he should pay.

        2. You’re assuming there’s adequate insurance that covers it, which I would not automatically assume to be the case.

          1. There’s a deductible, too, which could be $1,000.

            And, it may be that this kind of loss is excluded.

          2. What if there is?

            Why should the loss be borne by the insurer’s shareholders?

    4. No, it’s not a distinction that is relevant to takings jurisprudence. The “police power” as invoked in these cases has nothing to do with emergencies or the distinction between legislative and executive power. Such a distinction would be contrary to the original understanding of the Fifth Amendment, in any event. Indeed, St. George Tucker’s first commentaries on the Constitution stated that the Takings Clause was probably drafted in response to excesses of the Continental Army during the Revolutionary War.

  7. OK, I see the path forward. Put all redevelopment, road building, etc under the police department. Have the cops show up, with hardhats of course, and wantonly blaze away, even if it’s just a farm and they have to shoot into the dirt, or a lake and they have to shoot into the water.

    Bingo! Free property! The cops ought to be all over this extension of civil asset forfeiture.

    1. It’s hard to argue you haven’t taken something when you’ve actually, you know, taken it. So no, this doesn’t get them free property. At most the free use of the property for a day, and the chance to go wild and let out some destructive feelings at someone else’s expense.

  8. As the Hamen court recognizes, there is a divergence among state courts on this issue. Appellate courts in California, Georgia, Oklahoma, and Washington, have all ruled that damagings clauses do not apply to law enforcement operations; South Dakota has now joined them.

    A question what do those state’s courts think a damages clause would cover if law enforcement (and presumably if it ever comes up, other emergency/first responders) is excluded that would not be covered under a takings clause?

  9. Some years ago (maybe around 1990), police chasing my friend’s cousin broke down her front door. Repair would strain her meager finances. She asked me if she could sue. She was in a conservative state so her only recourse was federal law. My research showed that there was a de minimus exception that applied. Not my area of the law, but I wonder if that’s still true.

    1. You know, this is where she could *embarrass* the police or city into paying — if panhandling is a Constitutional right (and it *is* in most states) then she could have shown up at press conferences and such soliciting public donations to pay for the door.

  10. The judiciary is an arm of government that seeks to protect government. Much like the “independent” Federal Reserve that steals our money by printing trillions of fake money to give to Democrat Party voters.

      1. These people should all be gassed.

        1. Liberals should be gassed?

          That seems uncivil, but it provides no cause for worry about civility standards. Not at this ‘often libertarian’ site that positions itself as a champion of free speech.

          Just don’t call any police-coddling conservatives ‘c_p succ_rs’ — do that, and Volokh Conspiracy management will declare your contribution to the debate inconsistent with this blog’s censorship standards, and delete your comment.

          I will stop mentioning this blog’s hypocritical, partisan, viewpoint-driven censorship when (1) a suitable apology, with acknowledgement of mistake and remorse, is provided or (2) a ban prevents mention of the right-wing censorship.

          1. Yes. Liberals are evil people who seek to destroy Western civilization. Gassing traitors has always been a legitimate aim.

          1. The bloggers don’t give a shit. Insult them directly and they’ll remove your post. Advocating mass-murder though is fine by them.

  11. The Background section in the court ruling in the Hamen case is interesting and calls into question if this case is a good moral argument for requiring compensation for damage done by law enforcement actions.

    The son had outstanding arrest warrants for felony burglary and misdemeanor violations of a protection order and had allegedly threatened that morning to kill himself and anyone he came in contact with. The parents allowed their son to stay in the mobile home when he wasn’t working.

    While the police were visiting the parent’s residence, which was about 600 feet from the mobile home in question, the suspect called his father and the police could overhear the conversation where the suspect said he was at the mobile home and asked for help in escaping to Mexico or Canada (because, of course, we surely don’t have extradition treaties with either!). The father didn’t tip off his son that the police were there.

    Subsequently the police observed the mobile home from some distance away and saw the suspect leave and reenter the home at which time they began a process of establishing a perimeter, at first loose and, as resources arrived, subsequently strengthened. After the initial observation from a distance, the police were unable to contact the suspect “on site” – he didn’t respond to PA announcements from an armored vehicle. The police called his cell number and the suspect, sounding breathless, claimed he was “almost in Minnesota” (which appears to be about 25-30 miles from the site). There were a couple of reports of sightings of the suspect from locals, but police could not find him in the area he was supposedly sighted. They also searched a residence where the suspect had stayed the prior night (his sister’s home which appears to less than a mile away). At this point, based on police radio traffic, it appears some of the LEOs (from multiple jurisdictions) didn’t think the suspect was in the mobile home but apparently others did.

    Only then did the police breach the mobile home with two armored vehicles causing the damage. Police had told the father they were going to enter the mobile home, but gave no details on what that meant and didn’t get permission to do so.

    After the breaching they of course didn’t find the son in the mobile home but later found him in the river near the parent’s home and arrested him (so it would appear that he was lying when he said he was “almost to Minnesota” and that cell phone triangulation, if used, likely would not have been definitive about if the suspect was in the mobile home or not).

    Note that the police were trying to capture the suspect before he could get to the bustling (NOT) metropolis of Castlewood South Dakota (population 641)) with homes less than 1/2 mile away.

    This case really doesn’t seem like a great case to highlight the, admitted, moral injustice of law enforcement being given an exemption from damages.

    If, for example, a responding police vehicle was driving too fast and ran off the road and damaged a mobile home a mile away, that would be a great case (if the city/county would even deny compensation in that case).

    At the other extreme, if the mobile home had been owned by the son and he had actually been inside and refused to come out and that resulted in the damages, few (I think) would hold the government morally responsible for the damage.

    Even if the suspect had broken into the mobile home without authorization of the owner, the owner probably should be compensated for damages for police action (regardless of if the suspect was located or not).

    However in this case it appears the father had allowed the son to stay in the mobile home and the son had access to it. Even though the father might not have known the son was a criminal with outstanding warrants, the father bears some responsibility for who he lets stay in/on his property (and, frankly, it seems doubtful that a father in what appears to be closeknit community like this would be oblivious to his adult son’s behavior, record, and, likely, reputation).

    (BTW, for context, it appears that the suspect, Gary, is about 40 years old and the father, Gareth, is about 85 years old. That really doesn’t matter much, but may help explain some of the dynamics.)

  12. This is a very bad outcome. It will lead to articles and Internet threads about what force (including deadly force) citizens can use to defend their property from police. That’s certainly not the way we want things to go.

    What happened to the simple principle, that every problem should have a remedy under the law?

    1. What I worry more about is revenge against the police and their families. Something like this could push an unbalanced person over the edge and lead her to go burn down Officer Friendly’s house in retribution. Or go shoot a random cop in a parked cruiser — which *has* happened, and more than once, in recent years.

      If I were a police officer, I’d want my department to pay for things like this for just the public relations aspects.

      1. The rule of law and legal liability was a great invention 10000 years ago. It replaced endless cycles of violent revenge. Contract law replaced hostage taking to enforce a promise. I support that goal that makes life livable, and not consumed by physical survival.

        I advocate making it work not ending it.

        As far as violence is concerned, humans are one tenth as aggressive as other primates, more bonobo, less chimp or gorilla.

  13. There is no organized crime family greater than government.

    1. Pretty much: Governments are, after all, just highly evolved protection rackets.

      1. Anti-government right-wing cranks angered by all of this damned inclusiveness, progress, and reason are among my favorite culture war casualties.

        1. Hey kirkland, what happened to Defund the Police? Black lives matter! Here’s the perfect example for you to decry the police and instead you defend them.

          1. I support attracting a better class of person to law enforcement and promoting better performance: Better training, better management, better education, better character and temperament, more accountability, less authoritarianism, less militarism, fewer bigots, fewer dopes, fewer petty tyrants looking for the respect they can’t earn without a badge and gun.

            I dislike the reported decision in this case from South Dakota.

            None of that puts me one step closer to common cause with anti-government cranks and bigoted, anti-social right-wingers.

            1. Artie. Tell the class where you live. If it is in a Democrat jurisdiction, no reply to your comment is needed. You already live in hell. If you enjoy life in Trump country, you have some nerve.

        2. Hey, Rev: If you doubt it, just try not paying the protection money, and you’ll find out who you were paying for protection from.

    2. In Casino, Rothstein bemoaned the loss of personal service when corporations took over Las Vegas gambling.

      When the mob had a 20% premium for commercial trash collection in NYC, you knew who to call if your garbage was not picked up. It would get picked up. Try finding someone to speak to in city government if that happens.

  14. In these cases, if the courts won’t make someone whole despite the injury being caused by the government itself, I have no problem with someone deciding to take payment/retribution via illegal methods.

    1. Formal logic has greater certainty than the laws of physics. The contrapositive of a true assertion is always true. (All bats are mammals. This animal is not a mammal, it cannot be a bat.)

      If legal liability is a substitute for endless cycles of violent retaliation, then immunity is a justification for violence in formal logic. All lawyers with self dealt immunities are justifiable targets of violence. I oppose violence because it is not persuasive. I do support arresting the hierarchy of the toxic, traitor lawyer profession, one hour trials, with their legal utterances as the sole evidence, and 10 years at hard labor in the fed pen.

    2. “In these cases, if the courts won’t make someone whole despite the injury being caused by the government itself, I have no problem with someone deciding to take payment/retribution via illegal methods.”

      More importantly, the average person isn’t going to object to you doing so. No one is going to have noticed how the parked police cruiser wound upside down and on fire — no, they didn’t see anything.

  15. The larger problem here is the courts general willingness to favor the government. I’m still amazed at the things the courts allow the government to get away with that no private citizen would ever get away with.

    1. The court is run by lawyers instead of by professional, independent judges. This most toxic occupation must be crushed to save our nation.

      Judging is a separate occupation. There should be judge schools. No lawyer should ever be allowed to sit on a bench.

      1. I’m not going to dispute your low opinion of lawyers in general, but that’s not the real source of the problem here, it just enables it.

        The real problem here isn’t that the judges are lawyers. It’s that they’re chosen by, and on the payroll of, the government. Anybody in that position would be partial to the government.

        They say that no man should be a judge in his own case. It’s not substantially better that a man chose and pay the judge in his own case.

        1. Unless you think judges should be privately funded, which would have problems of its own, judges are going to be on the government payroll. Someone has to pay their salaries.

          I think the more basic problem is that you don’t get to be a judge unless you’re politically connected, which means your natural sympathies will be toward the status quo. But I’m not sure how to fix that problem. The reality is that government jobs, including judgeships, tend to go to people with political connections.

          I’ve suggested, only half in jest, that a certain number of judges should come from the ranks of disbarred lawyers and convicted felons, because that would guarantee people on the bench who understand that the system doesn’t always work and wouldn’t be in the pocket of law enforcement.

          1. My personal proposal is that federal judges be selected by states, and state judges elected.

            Electing judges isn’t ideal, not by a long shot, but I have noticed that elected judges seem to be a bit less eager to, for instance, strike down inconvenient ballot initiatives.

            1. “I have noticed that elected judges seem to be a bit less eager to, for instance, strike down inconvenient ballot initiatives.”

              The question is whether that’s a bug or a feature.

              For example, consider some kind of gun ban initiative or law. Do you want the judge thinking “Well, that obviously violates the 2nd amendment, but OTOH I have kids to feed and there is an election coming up …”?

            2. I live in a state that elects judges. It’s a disaster. Campaigning costs money, which is mostly raised from the attorneys who appear before them. How do you think that works in actual practice?

            3. The judges get their money no matter what. Your argument for a conflict of interest is pretty weak, except that the left uses such arguments all the time.

        2. The problem of pay is insurmountable. What do you think about super-easy recalls by the electorate for wrong decisions, not for corruption? They can get fired at the next election, and have to think about that before loosing a vicious criminal on a technicality.

          1. It’s a great idea if you think judges should do what’s popular rather than what’s right.

            1. Let the judge explain to the voter the reasons for the decision.

              1. Right. What color is the sky on your planet?

            2. They’re pretty much always going to do what’s popular rather than what’s right. We’re discussing who it’s popular with.

              1. Ok. Who is more likely to be right, constitutional scholars, or the idiots who think Trump just got re-elected in a landslide?

  16. This is lawfare to which Democrats can strive. After you make your second dollar in Russia, the authorities come around with accusations of fraud and tax evasion. You have to pay Putin half your profits.

    https://www.msn.com/en-us/news/politics/putin-critic-navalny-loses-prison-sentence-appeal/ar-BB1dRakp?ocid=msedgdhp

  17. It is interesting to compare the damage clauses in the constitutions of the other states that have read them to exclude policing actions.
    Georgia:

    …private property shall not be taken or damaged for public purposes…

    California:

    Private property may be taken or damaged for a public use and only when …

    Oklahoma:

    Private property shall not be taken or damaged for public use…

    Washington:

    No private property shall be taken or damaged for public or private use without…

    They are all limited to damage for a public (or private) use or purpose, the same limitation that applies to takings, so it is understandable that the interpretation would be similar. It’s harder to justify in the case of South Dakota though, given their phrasing

    Private property shall not be taken for public use, or damaged, without just compensation…

  18. Why did this have go to court in the first place? The government, knowing that it had hurt innocent people, could have compensated them, even if it thought that a court would let it get away with it.

    1. The government Knows “what’s mine is mine and what’s yours is mine.”

  19. A Moral Play

    Police: “Hello, is your son home?” [ramming through the house walls]

    Parents: “No, he hasn’t lived here in a good while. Would you mind repairing our house?”

    Police: “Our bad, sorry. But no, we are not obligated to repair your house walls. You see, we have budgets, salaries, benefits and pensions to pay to ourselves.’

    Parents: “But you could, if you were willing to?”

    Police: “Yes, but we’re not willing to – you see, paying for our mistake would be to our own disadvantage.”

    Parents: “Oh, Ok. We’ll have to put up tarps to keep out the rain. When the city takes our home for delinquent taxes, we don’t know what we’ll do.”

    Police: “Well, our vagrancy laws will allow us to drive you out of town.”

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