When the Police Wreck Your Home by Mistake, You Shouldn’t Have to Foot the Bill

P olice came with shock and awe when their hunt for a dangerous fugitive led to a certain house in South Bend, Ind.

They believed that social-media activity and an IP address confirmed the man’s location at a residence owned by Amy Hadley. So, the police obtained a warrant and surrounded the property with more than 30 officers on June 10, 2022. Hadley’s son, who was 15 at the time, was home alone playing video games when he heard the bullhorn command: “Exit the front door with your hands up.”

Confused and scared, he complied. Officers immediately saw that he was not the fugitive, a suspected gunman in a fatal shootout that had occurred miles away. “That’s not him,” one officer can be heard saying on body-cam video. “That’s a kid.” Audio recordings at the scene show that the police did not suspect the boy of any crime. Yet they handcuffed him, placed him in the back of a squad car, and took him to a police station without allowing him to call his mom.

By the time Hadley and her daughter arrived at the scene, the South Bend and St. Joseph County police departments were preparing for a multiagency raid. Hadley told them they were making a mistake — her family did not know the fugitive, and the house was empty except for a cat. She was correct, something that home-security cameras could have confirmed. But the police wanted to make sure. So, as Hadley and her daughter watched from nearby, officers shot a stun grenade through their front door and launched more than 20 tear-gas canisters, breaking windows and puncturing walls.

The cat survived, but the home was a mess. The family could not even sleep in it for days because the fumes were too strong. Yet when Hadley asked the participating agencies for compensation, all she got was runaround. Her homeowner’s insurance covered some of the costs. Amy was on the hook for the remaining thousands of dollars.

Hadley sued to hold the government accountable. Our public-interest law firm, the Institute for Justice, represents her.

Her case is not an isolated incident. Recently, a SWAT team trashed Carlos Pena’s print shop in Los Angeles after a fugitive picked the building at random for shelter during a foot chase with police. Officers also trashed Vicki Baker’s house in McKinney, Texas. They trashed Leo and Alfonsina Lech’s house in Greenwood Village, Colo. And they trashed Mollie Slaybaugh’s house in Smyrna, Tenn. All of these people were innocent bystanders caught in the cross fire of police business. All suffered losses. None was made whole.

Instead of following the Constitution’s Fifth Amendment, which promises “just compensation” when the government takes private property for “public use,” law-enforcement agencies often refuse to pick up the tab. Like restaurant customers who dine and dash, the police sometimes “raid and run.”

Judges sometimes let law-enforcement agencies get away with this behavior by carving out a “necessity” or “emergency” privilege — largely shielding them from the Fifth Amendment’s takings clause. This creation lacks the support of Supreme Court precedent, which instead requires just compensation when the government destroys private property for public use. Yet that has not stopped lower courts from shielding governments from liability.

An undesirable result of this “emergency” privilege can be over-the-top policing. When agencies are not required to pay for the damage they inflict, they lose an incentive to be measured in their responses. Another result is the imposition of unfair financial burdens on people who happen to own property in the wrong place at the wrong time — a type of perverse lottery.

Public safety is a public benefit, and innocent, unlucky families should not have to pay disproportionately just because trouble comes to their doorstep. All taxpayers should share the financial burden — as they do with public utilities, public parks, and public schools.

County and city planners cannot anticipate specific police emergencies when putting together their budgets. But uncertainty is not an excuse. Models exist to quantify the cost of risk. This is why insurance companies use actuaries. Forcing people like Amy to pay for government takings, while giving everyone else a pass, is just bad planning.

The police acted legally in South Bend. But when they were done, the government should have asked for the check.

Marie Miller is an attorney at the Institute for Justice, where Daryl James is a writer.