Reply Brief — Mollie Slaybaugh, et vir, Petitioners v. Rutherford County, Tennessee, et al.

No. 24-755

In The

Supreme Court of the United States

MOLLIE AND MICHAEL SLAYBAUGH,

Petitioners,

v.

RUTHERFORD COUNTY, TENNESSEE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF FOR PETITIONERS

JEFFREY H. REDFERN

Counsel of Record

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

Counsel for Petitioners

i

TABLE OF CONTENTS

Page

REPLY ARGUMENT ................................................. 1

I. The decision below is neither narrow nor

fact-bound. ....................................................... 1

II. The decision below depends entirely on a

serious misapplication of Cedar Point’s

dicta.................................................................. 4

III.Granting certiorari on the narrow

question presented would promote

percolation. ...................................................... 7

IV. The question presented is important............ 10

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

PAGE(S)

CASES

AmeriSource Corp. v. United States,

525 F.3d 1149 (Fed. Cir. 2008) ........................... 9

Ark. Game & Fish Comm’n v. United States,

568 U.S. 23 (2012)................................... 4, 5, 8, 9

Asinor v. District of Columbia,

111 F.4th 1249 (D.C. Cir. 2024) ......................... 2

Baker v. City of McKinney,

84 F.4th 378 (5th Cir. 2023) ....................... 3, 4, 9

Baker v. City of McKinney,

145 S. Ct. 11 (2024)........................................... 10

Baker v. City of McKinney,

93 F.4th 251 (5th Cir. 2024) .......................... 9–10

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021).......................................... 4–8

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ............................ 6

Johnson v. Manitowoc County,

635 F.3d 331 (7th Cir. 2011)............................... 9

Lech v. Jackson,

791 F. App’x 711 (10th Cir. 2019) ...................... 9

iii

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)......................................... 2, 5

McKenna v. Portman,

538 F. App’x 221 (3d Cir. 2013) .................... 9, 10

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1851) .............................. 5

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022)................................................. 7

Slaybaugh v. Rutherford Cnty.,

114 F.4th 593 (6th Cir. 2024) ...................... 2–5, 9

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. IV ..................................... 2, 4, 5

U.S. Const. Amend. V ............................. 1–4, 7, 8, 10

OTHER AUTHORITIES

Andy Sheehan,

City council looks to make homeowners impacted by Garfield shootout financially

whole, CBS Pittsburgh (Feb. 19, 2024),

https://perma.cc/9NCL-T9JB............................ 11

Brad Devereaux,

Kalamazoo offers $150k to tenant, landlord

after tearing down home during police

standoff, mlive.com (Mar. 7, 2022),

https://perma.cc/77PX-7QM9 ........................... 11

iv

Bridget Grumet,

Police tore through the wrong house. Now

Austin won’t pay for the damage., Austin

Am.-Statesman (Sept. 10, 2023),

https://perma.cc/98MY-JMYW ......................... 11

Jeremy Jojola,

SWAT damages property, owners stuck with

$20k bill, 9NEWS (Nov. 14, 2024),

https://perma.cc/V3F3-HT6H ........................... 11

Peter B. Kraska,

Militarization and Policing—Its Relevance

to 21st Century Police, 1 Policing 501 (2007) .... 11

Petition for Certiorari,

Ark. Game & Fish Comm’n v. United States,

No. 11-597 (filed Nov. 9, 2011), 2011 WL

5593237 .............................................................. 8

Vic Micolucci,

Police working with city to fix damage

SWAT team left behind, News4Jax (Aug. 18,

2021), https://perma.cc/AES9-W4FR ............... 11

1

REPLY ARGUMENT

The petition explained that the decision below exacerbates the split of authority regarding how the

Takings Clause should apply to damage caused by

lawful police action. The decision also, unfortunately,

failed to engage with either the history of the Takings

Clause or with the recent approach adopted by the

Fifth Circuit. Accordingly, Petitioners presented a

narrow question that would allow this Court to remand for a more thorough analysis.

In their brief in opposition, Respondents argue

that there is no split on the precise question presented

and that the broader issues should percolate before

this court takes them up. Yet Respondents fail to understand that the Sixth Circuit’s novel and ahistorical

approach prevents the kind of percolation that would

actually bring clarity to the broader constitutional issue. Respondents’ other objections—that the Sixth

Circuit got this one right, that this case is a poor vehicle, or that the issue is not important—are just

wrong.

I.

The decision below is neither narrow nor

fact-bound.

Respondents assert that the holding below is unsuitable for review because it was narrow and factbound. BIO 7–8, 11–12. That is incorrect, on both

counts. The case was dismissed on the pleadings, and

the Sixth Circuit affirmed by invoking a novel, categorical exception to the Fifth Amendment. The only

relevant facts, as pleaded, were that the police

2

lawfully damaged an innocent person’s property while

pursuing a fugitive.

According to the Sixth Circuit, property damage

pursuant to “a lawful search or arrest” can never

amount to a taking of property requiring governmental compensation. Slaybaugh v. Rutherford County,

114 F.4th 593, 603–604 (6th Cir. 2024). If so, law enforcement may intentionally destroy property belonging to innocent third parties, who are then left with

no recourse—so long as the destruction was “reasonable.” Id. at 604.

That holding renders the Fifth Amendment’s Just

Compensation Clause superfluous whenever law enforcement causes property damage. If a search is unreasonable, then it violates the Fourth Amendment.

Id. at 601 n.2. The Fifth Amendment, however, recognizes that a governmental action can be “otherwise

valid” yet nevertheless demand compensation for an

affected property owner. Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 425 (1982). Accord Asinor v. District of Columbia, 111 F.4th 1249,

1259 (D.C. Cir. 2024) (explaining that the Fourth and

Fifth Amendments “do not preempt one another”). By

holding that the Just Compensation Clause applies

only to “unreasonable” searches and seizures, the

panel effectively held that Americans’ only constitutional protection in this area is the Fourth Amendment. Slaybaugh, 114 F.4th at 604.

Thus, the holding below in no way turns on any

fact specific to this case. As Respondents

acknowledge, the panel’s decision—on a motion to dismiss, no less—applies to any search or seizure that is

3

“reasonable,” i.e., lawful. BIO 11. Respondents point

to no unique fact about this case other than that the

police assault was lawful. See ibid. That is not a

“unique” fact. Contra id. at 13. It is the premise of all

of these cases.

Respondents also claim that the Sixth Circuit’s

“search and arrest” exception to the Fifth Amendment

is narrower than the “necessity” exception recognized

by the Fifth Circuit. Not so. In Baker, the Fifth Circuit

found no taking when it was “objectively necessary for

officers to damage or destroy * * * property in an active emergency to prevent imminent harm to persons.” Baker v. City of McKinney, 84 F.4th 378, 388

(5th Cir. 2023). Although the “necessity” privilege covers subject matter beyond law enforcement (such as

firefighting), it is a far higher bar than the searchand-arrest privilege, which kicks in whenever police

actions are merely “reasonable.” Slaybaugh, 114

F.4th at 599. Most police action is “reasonable,”

whereas the kind of emergencies that justify the “necessity” privilege are quite rare.

To be sure, both Baker and the panel below committed the same fundamental error in reasoning—

confusing a private privilege to take (or access) property as excusing the government from its duty to pay

for property it destroys. 1 However, Baker at least left

1 Although the panel acknowledged history showing that the

necessity privilege does not absolve government of its just-compensation duty, it did not explain why the analysis should be any

different for the search-and-arrest privilege. See Slaybaugh, 114

F.4th at 603. Notably, Respondents likewise do not suggest any

reason why the Just Compensation Clause should distinguish

between these privileges.

4

ample room for searches or seizures that would satisfy

the Fourth Amendment yet require compensation

pursuant to the Fifth Amendment. See Baker, 84

F.4th at 388 (“[W]e make no attempt to define the

bounds of this [necessity] exception.”). The holding below explicitly forecloses that possibility. See Slaybaugh, 114 F.4th at 601 n.2.

II.

The decision below depends entirely on a

serious misapplication of Cedar Point’s

dicta.

Petitioners explained that the decision below

hinges entirely on a misunderstanding of dicta in this

Court’s recent Cedar Point decision. Respondents

counter that the language at issue is not dicta, BIO 8–

9, and that the panel relied not only on Cedar Point,

but also on a “host of historical precedent * * * [establishing] that the search-and-arrest privilege extends

to damaging property during a reasonable search and

seizure.” Id. at 10. Respondents are wrong.

There has never been a dispute in this case that

the search-and-arrest privilege (1) exists and (2) protects Respondents’ individual officers from tort liability in this case. Therefore, the panel’s “host of historical precedent” establishing those two facts, Slaybaugh, 114 F.4th at 598–602, are beside the point.

Instead, the question here is whether such an individual tort privilege categorically absolves the government of its duty to provide just compensation for

property damage. This Court has repeatedly explained that the Just Compensation Clause applies

where government intentionally or foreseeably causes

5

physical property damage. E.g., Ark. Game & Fish

Comm’n v. United States, 568 U.S. 23, 39 (2012). This

Court has also explained that the Clause applies even

in situations where the taking of property did not

amount to trespass. Mitchell v. Harmony, 54 U.S. (13

How.) 115, 134 (1851) (“Unquestionably * * * the government is bound to make full compensation to the

owner; but the officer is not a trespasser.”); see also

Loretto, 458 U.S. at 425 (the Clause applies even to

acts that are “otherwise valid”). The fact that the destructive act was itself lawful—whether pursuant to

the search-and-arrest privilege or any other privilege—cannot be dispositive.

In finding otherwise, the panel relied entirely on

Cedar Point, which stated that “government searches

that are consistent with the Fourth Amendment and

state law cannot be said to take any property right

from landowners.” Slaybaugh, 114 F.4th at 598 (quoting Cedar Point Nursery v. Hassid, 594 U.S. 139, 160–

161 (2021)). But the only “property right” at issue in

Cedar Point was the “right to exclude,” as Respondents acknowledge. Cedar Point, 594 U.S. at 149

(“[T]he regulation appropriates for the enjoyment of

third parties the owners’ right to exclude.”). The Slaybaughs seek compensation not for the momentary

frustration of any right to exclude officers from their

home, but for the physical destruction of their home

itself—that is, the permanent loss of their right to

use and enjoy their property—a distinct stick in the

bundle. Cedar Point’s brief discussion of momentary,

non-destructive searches is far afield from this case.

Moreover, Cedar Point’s discussion of the searchand-arrest privilege was plainly dicta because it was

6

not the rule of law applied in that case, nor was it necessary to the decision. The question in Cedar Point

was whether California had appropriated property by

granting labor union organizers the right to access

private farmland. This Court said “yes,” in part because this limitation on the property owner’s right to

exclude did not reflect longstanding background limitations on property. Id. at 160–162. Then, in the

course of responding to concerns raised by the dissent,

the majority opined that searches supported by valid

warrants would not constitute takings under the decision. Id. at 161.

In other words, this Court (1) announced a test, (2)

applied it to the facts of the case, (3) held that the

challenged California law failed the test, and (4)

opined about other government actions that would

likely satisfy the test. Opining about how other hypothetical cases would turn out is quintessential dicta.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)

(“[G]eneral expressions, in every opinion, are to be

taken in connection with the case in which those expressions are used. If they go beyond the case, they

may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”).

The present case illustrates the importance of

reading dicta in context: The Cedar Point majority

was certainly correct in observing that a one-time

search, conducted pursuant to a valid warrant, does

not appropriate a property owner’s right to exclude.

But this Court was not presented with historical evidence concerning the interplay between common law

trespass defenses and the Takings Clause, for the

7

straightforward reason that that was just not at issue

in Cedar Point.

As this Court has recognized, when confronted

with novel constitutional questions, it is important to

look carefully at the constitutional history that the

parties present. Cf. N.Y. State Rifle & Pistol Ass’n,

Inc. v. Bruen, 597 U.S. 1, 25 n.6 (2022) (noting the importance of adversarial briefing, particularly in cases

involving constitutional history). The Slaybaughs presented ample historical evidence to the Sixth Circuit,

and the panel sidestepped all of that material simply

by relying on the Cedar Point dicta. 2

III.

Granting certiorari on the narrow question presented would promote percolation.

Respondents correctly note that there is currently

no circuit split on the precise question presented by

the petition. BIO 13. Although the circuits have

adopted widely differing analytic approaches in similar cases, the Sixth Circuit is the only court to

squarely address whether the search-and-arrest privilege is an exception to the Fifth Amendment. That

should not preclude review, however, for at least two

reasons.

2 To be sure, as Respondents point out, this Court has long

held that the “property” protected by the Fifth Amendment is

defined by background principles of state law. BIO 10. But that

vague principle tells us nothing about whether individual tort

immunities are imputed to the government in takings cases.

That is the specific question in this case, and the only support

for the Sixth Circuit’s answer to that question is Cedar Point.

8

First, This Court has previously granted certiorari

in materially identical circumstances—in Arkansas

Game & Fish Commission v. United States, 568 U.S.

23 (2012). There, as here, there was no split. In Arkansas Game & Fish, the Federal Circuit had held

that government-induced flooding could constitute a

taking of private property only if the flooding were

permanent; temporary flooding was categorically exempt from the Takings Clause. Id. at 30–31. No other

court of appeals had addressed the issue. See Petition

for Certiorari, No. 11-597 (filed Nov. 9, 2011), 2011

WL 5593237, at *13 (arguing “[t]hat the Federal Circuit is sharply divided over this case,” but identifying

no circuit split). The Federal Circuit made the exact

same error in reasoning as the Sixth Circuit in the

present case: (1) It seized on a few lines of dicta from

one of this Court’s decisions about permanent flooding, (2) applied that dicta to a radically different factual situation, and (3) created a brand-new, categorical exemption from the Fifth Amendment—an exemption that had no grounding in history or precedent.

Ark. Game & Fish Comm’n, 568 U.S. at 35 (“The Government would have us extract from this statement a

definitive rule that there can be no temporary taking

caused by floods. * * * We resist reading a single sentence unnecessary to the decision as having done so

much work.”).

This Court reversed, cautioning that courts should

not find “blanket exemptions” to takings doctrine

based on “general expressions * * * [where] the very

point [was not] presented for decision.” Id. at 35, 37.

The panel below has done just that, by expanding Cedar Point’s anodyne dicta (owners have no right to exclude law enforcement) to support the preposterous

9

notion that people experience no property loss when

governmental agents literally destroy their home.

Notably, this Court rejected the Federal Circuit’s

reasoning in Arkansas Game & Fish without deciding

the ultimate question itself—whether there had been

a compensable taking. Instead, this Court merely remanded for a more thorough and complete takings

analysis. Id. at 38, 40 (“We rule today, simply and

only, that government-induced flooding temporary in

duration gains no automatic exemption from Takings

Clause inspection * * * . [P]reserved issues remain

open for consideration on remand.”). The decision was

narrow, but unanimous. This Court can do the same

here.

The other reason that this Court should not wait

for a split of authority on the precise question presented is that, as Respondents acknowledge, six

courts of appeals have already adopted at least three

different approaches to these cases: (1) An incredibly

broad “police power” exception, Lech v. Jackson, 791

F. App’x 711 (10th Cir. 2019); McKenna v. Portman,

538 F. App’x 221 (3d Cir. 2013); Johnson v. Manitowoc

County, 635 F.3d 331 (7th Cir. 2011), AmeriSource

Corp. v. United States, 525 F.3d 1149 (Fed. Cir. 2008);

(2) a fairly broad “search-and-arrest” exception, Slaybaugh v. Rutherford County, 114 F. 4th 593 (6th Cir.

2024); and (3) a narrower “necessity” exception, Baker

v. City of McKinney, 84 F.4th 378 (5th Cir. 2023). Additionally, Judges Elrod and Oldham have suggested

an even narrower fourth approach—that “necessity”

should apply only when the property at issue would

have been destroyed regardless of government action.

Baker v. City of McKinney, 93 F.4th 251, 257 (5th Cir.

10

2024) (Elrod & Oldham, JJ., dissenting from denial of

rehearing en banc) (“All the Supreme Court’s cases

countenancing the public necessity exception share

this characteristic of inevitable loss.”). Justices Sotomayor and Gorsuch have hinted that the latter approach may be correct. Baker v. City of McKinney, 145

S. Ct. 11, 12–13 (2024) (Sotomayor & Gorsuch, JJ., respecting denial of certiorari).

These cases raise an “important and complex question,” meriting serious consideration. Id. at 13. The

decision below, however, does not confront the Fifth

Circuit’s reasoning and, more importantly, it does not

engage with the history of the Takings Clause. A narrow reversal under these circumstances would be far

more than simple error-correction; it would compel

the Sixth Circuit to squarely address the historical

record and the reasoning in Baker (both in the panel

opinion, and in the dissent from denial of rehearing

en banc). That is the kind of percolation that would

ultimately aid this Court in providing a more comprehensive treatment of the issues in these cases.

IV.

The question presented is important.

Respondents finally argue that property damage

caused by law enforcement simply isn’t that big of a

deal because “the majority of the circuit courts of appeals * * * have not yet squarely addressed” this issue. 3 BIO 17. But the quantity of litigation is not a

reliable indicator of what is happening on the ground.

Obtaining representation in these cases is extremely

3 Respondents state that the Third Circuit has not weighed

in yet, but that is incorrect. See McKenna v. Portman, 538

F. App’x 221 (3d Cir. 2013).

11

difficult. Few attorneys would be willing to take on a

case in a complex and unsettled area of law, where the

best-case outcome is that they take home some fraction of $60,000 (the approximate damages in this case

and in Baker). It is no coincidence that most of these

cases nationwide are being litigated by the undersigned, on a pro bono basis.

In any event, SWAT raids take place in this country well over 100 times per day, Peter B. Kraska, Militarization and Policing—Its Relevance to 21st Century Police, 1 Policing 501, 506 (2007), and the news

is full of stories about innocent homeowners going uncompensated. 4 Indeed, this Court will be hearing another case about a SWAT raid gone wrong in just a

few weeks. See Martin v. United States, No. 24-362

(argument set for April 29, 2025). And while some jurisdictions have done the right thing and voluntarily

offered compensation to affected property owners, 5

many will continue to face the prospect of financial

ruin from which they cannot protect themselves.

4 E.g., Jeremy Jojola, SWAT damages property, owners stuck

with $20k bill, 9NEWS (Nov. 14, 2024), https://perma.cc/V3F3HT6H; Bridget Grumet, Police tore through the wrong house.

Now Austin won’t pay for the damage., Austin Am.-Statesman

(Sept. 10, 2023), https://perma.cc/98MY-JMYW.

5 E.g., Andy Sheehan, City council looks to make homeowners

impacted by Garfield shootout financially whole, CBS Pittsburgh

(Feb. 19, 2024), https://perma.cc/9NCL-T9JB; Brad Devereaux,

Kalamazoo offers $150k to tenant, landlord after tearing down

home during police standoff, mlive.com (Mar. 7, 2022),

https://perma.cc/77PX-7QM9; Vic Micolucci, Police working with

city to fix damage SWAT team left behind, News4Jax (Aug. 18,

2021), https://perma.cc/AES9-W4FR.

12

CONCLUSION

Petitioners respect this Court’s decision to deny

certiorari in Baker. The courts of appeals have, so far,

given scant consideration to the historical record concerning the Takings Clause—even when property

owners have offered the relevant material. The decision below, however, does not advance the ball. This

Court should grant the petition and consider summary reversal with instructions to carefully consider

the history of the Takings Clause on remand.

Respectfully submitted,

Dated: April 2, 2025

JEFFREY H. REDFERN

Counsel of Record

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

ssen@ij.org

Counsel for Petitioners