South Bend woman’s case against the police for property damage could head to the Supreme Court

A South Bend woman is asking the U.S. Supreme Court to weigh in on whether local governments should be required to compensate individuals when police damage private property, a question on which the federal courts have been significantly divided.

The South Bend Police Department raided Amy Hadley’s home in 2022, believing that a shooting suspect was there. He wasn’t. But the raid left Hadley with thousands of dollars in damages to her home and property, costs for which the city refused to reimburse her.

Hadley and her attorneys argue that the Fifth Amendment’s takings clause — which states that “nor shall private property be taken for public use, without just compensation” — assures Hadley a recompense.

But both the U.S. District Court for the Northern District of Indiana and the 7th Circuit Court of Appeals have ruled against Hadley, saying that local governments are immune from the takings clause’s compensation provision when the damage is caused by police acting in their official capacity.

The courts dismissed Hadley’s claims and called them a “non-starter,” meaning they had no chance of success from the start.

The 7th Circuit’s interpretation of the takings clause aligns closely with several federal courts — but it conflicts with others.

Hadley is asking the Supreme Court to establish a national precedent — or at least send the matter back to the lower court for a more thoughtful analysis.

A costly mistake

In June 2022, St. Joseph County and South Bend police officers were searching for a suspect in a double shooting that had occurred the month prior.

Through an investigation, officers believed that the suspect was actively posting on a social media account from inside the Hadley home, according to court documents.

After obtaining a search warrant, officers surrounded the house with a SWAT vehicle and SWAT gear and commanded anyone inside to come out. The only person in the house at the time was Hadley’s 15-year-old son, Noah, who first thought the noise was coming from his video game.

Noah eventually came out the front door with his hands up. According to the Institute for Justice, which is representing Hadley, officers immediately knew that he was not their suspect.

Hadley and her daughter then arrived on the scene. According to the Institute for Justice, the women told officers they did not know who the suspect was and did not believe he was inside their home, given that they would have seen him on their home security cameras.

But the officers went ahead with their mission and raided the home, launching tear gas grenades through the windows, throwing flash-bang grenades through the front door and ransacking the place, according to the Institute for Justice.

After the officers realized their mistake and left the home, Hadley and her children were left to clean up the mess alone. They slept in their car in the driveway until the tear gas fumes dissipated.

Hadley’s home insurance policy covered a majority of the damage, but she still faced thousands of dollars in costs to make repairs. She tried getting information and compensation from the city and county, but she got nowhere.

A year after the raid, Hadley filed a complaint in St. Joseph County Circuit Court, alleging the city of South Bend, the South Bend Police Department and St. Joseph County violated her Fifth Amendment rights by not giving her just compensation for taking her property. Courts have long held that government actions that destroy or physically damage property, including through government seizure of private property for public use, can constitute a taking.

Because the case raised federal claims, the county court moved the case to the U.S. District Court for the Northern District of Indiana. But the district court dismissed it, citing 7th Circuit precedent in Johnson v. Manitowoc County, 2011, which held that the takings clause does not apply when the government damages private property in a case that doesn’t involve eminent domain, a process by which the government can obtain ownership of private property it designates for public use.

In Hadley’s case, the court determined that because the city and county used their police power to take her property for public safety, neither government was liable to pay her back.

Hadley appealed to the 7th Circuit. But last fall, the court stuck to their own precedent and dismissed her claims.

Marie Miller, an Institute for Justice attorney representing Hadley, told The Indiana Lawyer that “takings claims are supposed to be analyzed in the specific factual context in which they arise.”

“The problem here is that the courts … are not looking at the individual circumstances,” she said. “They’re just basically saying this was law enforcement destruction, and so we’re crafting an exception to cover it.”

Hadley and her attorneys filed a petition for a writ of certiorari in the U.S. Supreme Court earlier this year, asking the court to decide whether the takings clause has a police-power exception and whether the government is exempt from liability when police officers intentionally destroy an innocent person’s property while trying to apprehend a fugitive.

A number of organizations have weighed in with amicus briefs.

The split

James Madison, an American Founding Father, is credited with authoring the takings clause and its “just compensation” requirement.

Madison raised the just compensation requirement because he was dissatisfied with “improper takings” during the Revolutionary War, according to an amicus brief filed by professors James Ely of Vanderbilt Law School, Julia MaHoney of the University of Virginia School of Law, and Shelley Saxer of the Pepperdine Caruso School of Law. The brief supports Hadley’s petition.

“For Madison, compensation was ‘a straightforward equitable principle’ that was at ‘the very heart of [his] fundamental beliefs,’” the brief stated.

As with other constitutional provisions, the courts have debated the takings clause’s applicability since the country’s early years, expanding on when compensation is required and what constitutes a taking.

In recent years, federal circuit courts have heard numerous cases arising out of a government’s use of its police power, leaving them split on whether the government should compensate the property owner or not.

According to Hadley’s petition, the 7th, 10th and Federal Circuits apply a police-power exception to the takings clause, while the 4th, 5th, 6th and 11th Circuits have rejected it expressly or implicitly or they have only rejected the exception in the specific context of law-
enforcement destruction.

The 4th Circuit ruled in Yawn v. Dorchester County, 2021, that “government actions taken pursuant to the police power are not per se exempt from the takings clause.”

Several of the courts, such as the 5th and 9th Circuits, have accepted a sort of “necessity” exception to the takings clause, meaning that the government is exempted from compensating an individual when the taking of property was done “while acting reasonably in the necessary defense of public safety,” according to the 9th Circuit’s opinion in Pena v. City of Los Angeles, 2025.

The Institute for Justice filed a concurrent petition for writ of certiorari for Pena, alongside Hadley’s case.

In their amicus brief, the various professors noted that this “necessity” exception has “no basis in the takings clause’s text or in this Nation’s history and traditions.”

“It contravenes the foundational principle that individuals ought not shoulder alone the cost of benefits provided to the general public,” their brief stated.

7th Circuit

Even though the 9th Circuit accepts some sort of police-power exception, its approach significantly differs from the 7th Circuit’s.

In Johnson, the plaintiff was a landlord who owned a trailer and a garage in Manitowoc County, Wisconsin. According to court documents, Roland Johnson rented property to Steven Avery, who was later found guilty of murdering Teresa Halbach. According to court documents, Avery met Halbach at one of Johnson’s properties on Oct. 31, 2005; she was never seen alive again.

During the investigation into Halbach’s disappearance and murder, local law enforcement executed several search warrants on Johnson’s property, seizing his items and damaging the property, according to court documents.

Johnson argued that his Fourth and Fifth Amendment rights had been violated because officers used a jackhammer to remove concrete from his garage rather than a less destructive instrument. He also asserted that he was entitled to compensation under the takings clause.

The 7th Circuit’s March 10, 2011, opinion primarily focused on Johnson’s Fourth Amendment claims, using about one paragraph from the roughly 10 pages to analyze Johnson’s takings clause argument.

In that analysis, the 7th Circuit determined that the takings clause “does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.” That court cited a Federal Circuit decision in AmeriSource Corp. v. United States, 2008.

But the Federal Circuit made its determination based on the Supreme Court’s ruling in Bennis v. Michigan, 1996. There, the court stated that “the government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”

Miller, the attorney with the Institute for Justice, said she’s concerned about the 7th Circuit’s short analysis and the Federal Circuit’s understanding of Bennis.

Miller noted that the Bennis case dealt with forfeiture proceedings, not law enforcement destruction of property.

“Of course, if the government obtains title to property in a valid way, then you don’t take someone’s property. It’s just a transfer of ownership,” she said. “Or if someone abandons their property, they no longer have title to it. You can’t base a takings claim on something you don’t own.”

Miller called it “quite a leap” for the Federal Circuit to apply the Supreme Court’s language to AmeriSource — an intricate case regarding the seizure of an innocent person’s property for evidence.

Differing perspectives

Peter Agostino, a South Bend attorney representing St. Joseph County in Hadley’s case, didn’t get into the specifics of the case while talking to The Indiana Lawyer. But he did express concerns about whether a decision denying a police-power exemption would hurt public safety.

“Do we want some type of … economic consideration to be a litmus test for whether or not you take action to stop criminal activity?” Agostino asked. “A whole new set of factors come into play, and oftentimes, you know, how do you do that when you are faced with split-second decision-making situations?”

Agostino also said that a solution to the problem of compensation should come from the Legislature, not the courts.

“If there’s a need to address this problem in the context of those immunities, that’s something that can be taken up with the state Legislature,” Agostino said. “Then it doesn’t become a constitutional issue point.”

In an amicus brief filed in support of Hadley’s petition, Thomas Tiderington, a retired Michigan police chief, pushed back against any assumption that police officers stop and ask whose pocket would be lighter when their enforcement is done.

“They just assume it will be added to the municipality’s tab,” Tiderington’s brief stated. “This assumption that the public, rather than individual property owners, will bear those costs is not a deterrent to police work. It is just what makes sense.”

Will the Supreme Court take the case?

Gerard Magliocca, a constitutional law professor at the Robert H. McKinney School of Law, said that differing decisions issued by circuit courts is a reason for the Supreme Court to take a case. But that doesn’t guarantee it will.

“I don’t know what the likelihood is that they will take this one,” Magliocca told The Lawyer in a written statement. “I can’t say how important this one is.”

Agostino also did not have confidence that the high court would pick it up.

“I don’t sense that this is the type of situation where there are so many cases out there that it’s begging an answer,” Agostino said.

“That gets you into some, I would say, troublesome areas when you’re trying to develop a law based on an exception,” he added.

When reviewing a petition for writ of certiorari in Baker v. City of McKinney in 2024 (the case in which the 5th Circuit adopted its necessity exception to the takings clause), Supreme Court Justice Sonia Sotomayor explicitly recognized the importance of the police-power issue.

But she also said it would be beneficial for the lower courts to continue discussing the question before the high court intervened.•