Bell on Aggressive Police Actions to Dislodge Intruders

Bernie Bell has posted to SSRN Aggressive Police Actions to Dislodge Intruders and Competing Takings Clause and Fourth Amendment Regimes.  The abstract provides:

This article examines the potential overlap between the currently invigorated “regulatory takings” regime, extended most recently in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), and the Fourth Amendment regime governing searches and seizures. The two regimes suggest strikingly divergent approaches to claims for recompense arising out of law enforcement destruction of owners’ residential or commercial premises in the course of dislodging an intruder. Typically, most courts have resisted recognizing such destruction as a “taking,” even though such police responses to intruders may render the premises uninhabitable or unusable — a far more serious and potentially long-term frustration of investment-backed expectations than many actions that undoubtedly qualify as takings. The result in most jurisdictions has been judicial refusal to recognize potential liability for such damage to residential and commercial premises, with the civil rights or torts actions grounded in search-and-seizure law rarely mentioned.

Takings Clause doctrine provides a categorical entitlement to “just compensation” once a taking has occurred, without considering the reasonableness of law enforcement officials’ actions. By contrast, the ex ante or ex post Fourth-Amendment-based protection of property turn on the reasonableness of law enforcement officials’ actions — the government will be liable or denied authorization to conduct only unreasonable searches and seizures. The interest invaded in cases involving police dislodging of intruders is not the property owner’s right to possess and exclude, which lie at the heart of regulatory takings doctrine — indeed in most cases police restore those rights by expelling the intruder. Rather the property owner solely suffers property damage, and such harms, divorced from infringement upon the rights to possess and exclude, are subject to causes of action based on fault, not mere damage. Such fault-based causes of action include standard negligence causes of action for property damage, nuisance causes of action, and non-tort causes of action alleging “waste.”

The article assesses the relative merits of the competing Takings Clause and Fourth Amendment Clause approaches, finding both problematic. It then suggests self-help as the most appropriate means to ensure that property owners recoup losses due to damage to their premises in “intruder” situations. Such self-help can, and may to some extent already, be accomplished through the mechanism of insurance. Here, the paper takes it cue from the “economic loss” doctrine in torts. However, it is unclear whether standard insurance policies cover losses resulting from police responses to intruders. The article suggests that jurisdictions use their regulatory powers to preclude insurance companies from selling policies that exclude coverage of such claims. Ultimately, a combination of pooling risk among property owners through the mechanism of insurance, combined with Fourth-Amendment-based (or tort) liability based on unreasonable law enforcement conduct provides a better approach than that promised by extending the takings regime to include damage to property necessitated by law enforcement efforts to dislodge intruders.