No.

______

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

PETITION FOR A WRIT OF CERTIORARI

JEFFREY REDFERN
Counsel of Record
SURANJAN SEN
INSTITUTE FOR JUSTICE
901 N. Glebe Rd.,
Suite 900
Arlington, VA 22203
(703) 682-9320
[email protected]
Counsel for Petitioners
 i
QUESTION PRESENTED

A few weeks ago, this Court denied certiorari in

Baker v. City of McKinney, 23-1363, a case about
whether the Fifth Amendment’s Takings Clause re-
quires compensation when a SWAT team destroys an
innocent person’s property while pursuing a fugitive.
The Fifth Circuit had held that there is an implicit
exception to the Takings Clause when the govern-
ment’s actions were “objectively necessary.”
In a statement respecting the denial of certiorari,
Justice Sotomayor, joined by Justice Gorsuch, wrote
that “[w]hether any such exception exists (and how
the Takings Clause applies when the government de-
stroys property pursuant to its police power) is an im-
portant and complex question that would benefit from
further percolation in the lower courts prior to this
Court’s intervention.” Baker, No. 23-1363, 2024 WL
4874818, at *2 (U.S. Nov. 25, 2024).
The facts of the present case are materially identi-
cal to Baker, but the Sixth Circuit panel below denied
compensation on different grounds: Because the Slay-
baughs had no legal right to exclude the police, the
panel reasoned, the destruction of their house was not
actually a deprivation of their property rights. In sup-
port of this conclusion, the panel relied on dicta from
Cedar Point Nursery v. Hassid, where this Court
noted that lawful searches do not “appropriate” an
owner’s traditional right to exclude others from his or
her property.
The question presented is: “Does a common law
privilege to access property categorically absolve the
government’s duty of just compensation for property
it physically destroys?”
 ii
PARTIES TO THE PROCEEDING
Petitioners (plaintiffs-appellants below) are Mol-
lie Slaybaugh and Michael Slaybaugh.
Respondents (defendants-appellees below) are
Rutherford County, Tennessee, Rutherford County
Sheriff’s Department, and the Town of Smyrna, Ten-
nessee.
RELATED PROCEEDINGS

Slaybaugh v. Rutherford County, Tennessee, 23-

5765 (6th Cir.), judgment entered on September 3,
2024.
Slaybaugh v. Rutherford County, Tennessee, 3:23-
cv-00057 (M.D. Tenn.), judgment entered on August
24, 2023.
 iii
TABLE OF CONTENTS

Page
PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ....... 1

STATEMENT ............................................................. 1

REASONS FOR GRANTING THE PETITION ........ 5

I. Cedar Point—a case about the right

to exclude—cannot reasonably be read
to apply to government-authorized
property destruction .................................. 6

II. This Court should consider summary

reversal ..................................................... 12

CONCLUSION ......................................................... 13
 iv
TABLE OF APPENDICES

APPENDIX A:
Opinion of the United States
Court of Appeals for the Sixth Circuit,
September 3, 2024 .............................................. 1a

APPENDIX B:
Order of the Court of Appeals
for the Sixth Circuit
October 16, 2024 ............................................... 27a

APPENDIX C:
Order of the United States District Court
for the Middle District of Tennessee
August 24, 2023 ................................................ 30a

APPENDIX D:
Memorandum of Order of the United States
District Court for the Middle District of Tennessee
August 24, 2023 ................................................ 33a
 v
TABLE OF AUTHORITIES

Page
CASES
Ark. Game & Fish Comm’n v. U.S.,
568 U.S. 23 (2012)............................................... 13

Armstrong v. United States,

364 U.S. 40 (1960)............................................... 12

Baker v. City of McKinney,

No. 23-1363, 2024 WL 4874818
(U.S. Nov. 25, 2024) ................................ 3, 5, 6, 12

Bishop v. Mayor & City Council of Macon,

7 Ga. 200 (1849) .................................................... 9

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)....................................4–10, 12

City of New York v. Lord,

17 Wend. 285 (N.Y. Sup. Ct.),
affirmed, 18 Wend. 126 (N.Y. 1837) ............... 9–10

Eberhart v. United States,

546 U.S. 12 (2005)............................................... 13

Esplanade Props., LLC v. City of Seattle,

307 F.3d 978 (9th Cir. 2002)................................. 7

Grant v. United States,

1 Ct. Cl. 41 (1863) ................................................. 9
 vi
Lech v. Jackson,
791 F. App’x 711 (10th Cir. 2019),
cert. denied, 141 S. Ct. 160 (2020) ........................ 3

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005)............................................. 12

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)............................................... 9

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992)............................................. 6

Mitchell v. Harmony,
54 U.S. 115 (1851)................................................. 9

Mugler v. Kansas,
123 U.S. 623 (1887)............................................... 6

Pumpelly v. Green Bay & Miss. Canal Co.,

80 U.S. 166 (1871)................................................. 8

Sandford v. Nichols,
13 Mass. 286 (1816) ............................................ 10

Stevens v. City of Cannon Beach,

854 P.2d 449 (Or. 1993),
cert. denied, 510 U.S. 1207 (1994) ........................ 7

United States v. Causby,

328 U.S. 256 (1946)............................................... 8

Vincent v. Lake Erie Transp. Co.,

109 Minn. 456 (1910) .......................................... 11
 vii
Williams v. Johnson,
573 U.S. 773 (2014)............................................. 13

CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. V ................................................ 1

STATUTES
28 U.S.C. 1254(1) ....................................................... 1

OTHER AUTHORITIES
Michael C. Blumm & Rachel G. Wolfard,
Revisiting Background Principles in Takings Liti-
gation, 71 Fla. L. Rev. 1165 (2020), https://scholar-
ship.law.ufl.edu/cgi/viewcon
tent.cgi?article=1452&context=flr ....................... 7

Petition for Writ of Certiorari,

Baker v. City of McKinney, No. 23-1363,
2024 WL 3293358 (U.S. June 28, 2024) ............... 3

Rest. 2d Torts § 195 ................................................. 11

 1
Mollie and Michael Slaybaugh petition for a
writ of certiorari to review the judgment of the Sixth
Circuit below.
OPINIONS BELOW

The opinion of the court of appeals, App. A, is re-

ported at 114 F.4th 593. The district court’s opinion
granting the motion to dismiss, App. D, is reported at
688 F.Supp.3d 692.

JURISDICTION

The judgment of the court of appeals was entered

on September 3, 2024. Timely filed motions for re-
hearing were denied on October 16, 2024. This peti-
tion was timely filed on January 14, 2025. Petitioner
invokes this Court’s jurisdiction under 28 U.S.C.
1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Con-

stitution provides that: “nor shall private property be
taken for public use, without just compensation.” U.S.
Const. Amend. V.

STATEMENT

This case is the latest example of a growing, na-

tionwide trend. Police officers, while lawfully pursu-
ing fugitives, cause massive property damage. The
government often refuses to pick up the tab, forcing
random, unlucky individuals to bear the cost of public
law enforcement activity. Petitioners Mollie and Mi-
chael Slaybaugh are two such unlucky individuals.
 2
The Slaybaughs own a home in the town of
Smyrna, Tennessee. On January 23, 2022, their adult
son called Mollie and asked if he could come to visit
for a few days, and she agreed. He arrived at the
house later that same day. After a short conversation,
Mollie left the house to do some errands. Michael was
not home at the time.

Later that evening, just as she was about to go to

bed, Mollie noticed two police cars parked outside,
near her neighbor’s house. Concerned for her neigh-
bor, she went outside to see if everything was okay.
When she opened the door, however, she was met by
a police officer with a weapon drawn. Another officer
pointed a flashlight at her and told her to step out of
the house. She did as instructed and then noticed that
dozens of police cars were parked outside. She then
heard another officer, using a megaphone, tell her son
to come out of the house.

Mollie asked if she could reenter the house to per-

suade her son to come out. The police said he was
wanted for questioning regarding a homicide, and
that she could not reenter. Her son did not leave the
house, and eventually the police left, though they told
Mollie she could not reenter the house. She spent the
night at her daughter’s house.

The next morning, Mollie returned to her house

and saw that the police had also returned and set up
a perimeter. She again asked if she could speak to her
son, and the police said no. Eventually, the police as-
saulted the house. They broke down the door and
launched dozens of tear gas cannisters at the house,
smashing through windows and drywall, and
 3
saturating the house with noxious chemicals. While
they successfully effected the arrest, the damage to-
taled over $70,000.

Both the Town of Smyrna and Rutherford County

refused to compensate the Slaybaughs for the damage
(the police and sheriff’s department were both in-
volved in the assault), so the Slaybaughs filed suit in
federal district court, alleging that their property had
been taken without compensation, in violation of the
Fifth Amendment. The Slaybaughs also brought re-
lated state law claims.

The district court dismissed the complaint on the

ground that the damage was caused pursuant to the
government’s “police power,” which the court said is
categorically outside of the scope of the Fifth Amend-
ment. App. 60a (following Lech v. Jackson, 791 F.
App’x 711 (10th Cir. 2019), cert. denied, 141 S. Ct. 160
(2020)).

The Slaybaughs appealed, and the Sixth Circuit

affirmed on different grounds. The panel held that the
“police power” is not categorically exempt from the
Just Compensation Clause, splitting with the Third,
Seventh, Tenth, and Federal Circuits. App. 8a. See
Petition for Writ of Certiorari, Baker v. City of McKin-
ney, No. 23-1363, 2024 WL 3293358, at *7–13 (U.S.
June 28, 2024) (explaining circuit split in this area).
The panel also declined to follow the reasoning of the
Fifth Circuit’s recent decision in Baker v. City of
McKinney—a materially identical case where the
court held that the Takings Clause does not apply if
the government is acting pursuant to “public neces-
sity.” See App. 22a. The reason is because, as the
 4
Sixth Circuit panel noted, the Fifth Circuit’s conclu-
sion is in tension with the historical record. App. 21a.

The panel instead held that the destruction of the

Slaybaughs’ home did not deprive them of any prop-
erty interest at all. “If the Slaybaughs had no right to
exclude law enforcement's privileged actions in the
first place, police cannot be said to have ‘taken’ any of
their legally cognizable property interests. Thus, if
the officers’ actions were covered by th[e common law
“search-and-arrest”] privilege, the Slaybaughs cannot
recover for any damage to their home resulting from
officers’ lawful conduct.” App. 11a.

The panel cited just one case for the proposition

that common-law trespass defenses also defeat tak-
ings claims: This Court’s recent decision in Cedar
Point Nursery v. Hassid, 594 U.S. 139, 152, 160–61
(2021), where a majority of this Court noted in dicta
that property owners’ right to exclude is not “appro-
priated” when government agents conduct lawful
searches. App. 10a.

The panel below discussed at some length the his-

tory of the common law “search and arrest” privilege
before concluding that the officers’ conduct was privi-
leged. App. 12a–19a. (The Slaybaughs did not and do
not dispute that the officers themselves are protected
from individual liability by the privilege; the question
was whether a private tort immunity can be imputed
to the government for purposes of takings claims—
which far from requiring an element of fault or ille-
gality, presume the opposite.)
 5
The Slaybaughs petitioned for rehearing en banc,
emphasizing that nothing in Cedar Point can be read
to apply to government authorized intrusions that lit-
erally destroy private property. Rehearing was denied
on October 16, 2024. App. B. This petition for certio-
rari followed.

REASONS FOR GRANTING THE PETITION

As Justices Sotomayor and Gorsuch recognized a

few weeks ago, whether there is a “public necessity”
exception to the Takings Clause “is an important and
complex question that would benefit from further per-
colation.” Baker, 2024 WL 4874818, at *2. The deci-
sion below acknowledges that Baker may have been
incorrect, but it gets to the same result via a different
route: If property owners have no right to stop the po-
lice from destroying their property ex ante, then that
destruction does not actually deprive them of any
property rights protected by the Fifth Amendment.

The panel’s holding hinges entirely on a few lines

of dicta from this Court’s decision in Cedar Point,
which invalidated a grant of access to property while
acknowledging that governmental officers have cer-
tain common-law privileges to enter property on occa-
sion. However, a privilege to enter property does not
categorically absolve government of its duty to pay for
property it physically destroys pursuant to an inva-
sion—as all nine justices in Cedar Point acknowl-
edged, and as courts across the country (including this
one) have acknowledged for centuries.

The issue remains pressing, for all the reasons

noted in the Baker petition and the supporting amicus
 6
briefs. Although this case does present a potential ve-
hicle to decide the broader question in Baker, this
Court should consider a narrow summary reversal so
that the Sixth Circuit can squarely address Baker’s
reasoning.

I. Cedar Point—a case about the right to ex-

clude—cannot reasonably be read to ap-
ply to government-authorized property
destruction.

Over thirty years ago, this Court held that a tak-

ings claim is not defeated merely because the govern-
ment has asserted a weighty public interest involved.
Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1028 (1992). At the same time, the Court ex-
plained in dicta that the Takings Clause is not impli-
cated by government regulations that merely “dupli-
cate the result that could have been achieved in the
courts…under the State’s law of private nuisance.” Id.
at 1029. In other words, certain limitations on the use
of private property “inhere in the title itself,” and a
regulation does not effect a taking when it simply
makes “explicit” restrictions that were previously im-
plicit. Id. at 1029–30. That observation is unremark-
able: It is obviously not a taking merely to prohibit a
common-law nuisance. See Mugler v. Kansas, 123
U.S. 623, 669 (1887) (government need not “compen-
sate such individual owners for pecuniary losses they
may sustain, by reason of their not being permitted,
by a noxious use of their property, to inflict injury
upon the community”).

Although Lucas’s holding was a significant victory

for property owners, its dicta discussing a
 7
“background principles” exception to the Takings
Cause has taken on a life of its own. It is “an exception
that has become a categorical governmental defense
to takings claims” and “has swallowed the categorical
per se takings rule Lucas established.” Michael C.
Blumm & Rachel G. Wolfard, Revisiting Background
Principles in Takings Litigation, 71 Fla. L. Rev. 1165,
1165 (2020),

https://scholarship.law.ufl.edu/cgi/viewcon-
tent.cgi?article=1452&context=flr. The problem is
that Lucas did not foresee the infinite creativity that
government lawyers and lower courts would deploy in
identifying novel “background principles.” See, e.g.,
Esplanade Properties, LLC v. City of Seattle, 307 F.3d
978, 985 (9th Cir. 2002) (upholding the denial of a
shoreline development permit under the “public trust
doctrine”); Stevens v. City of Cannon Beach, 854 P.2d
449, 456 (Or. 1993) (determining that the public pos-
sessed a “customary” right to access private beaches
in Oregon), cert. denied, 510 U.S. 1207 (1994).

Now, the very same phenomenon is occurring with

lower courts’ treatment of dicta from Cedar Point. Ce-
dar Point involved specifically the right to exclude, a
right secured by the Takings Clause. 594 U.S. at 149
(“The right to exclude is ‘one of the most treasured’
rights of property ownership.”). This Court held that
California violated farmers’ right to exclude, by re-
quiring that they “allow union organizers onto their
property for up to three hours per day, 120 days per
year.” Id. at 143. At the same time, this Court clari-
fied in dicta that its holding would not prevent officers
from entering property pursuant to a common-law
privilege (including necessity and the search-and-
 8
arrest privilege), as those isolated entries do not de-
prive owners of any right to exclude. Id. at 160.

The Sixth Circuit seized on Cedar Point’s dicta to

deny the Slaybaughs compensation—reasoning that,
because they had no right to exclude law enforcement,
the destruction of their home therefore does not rep-
resent a loss of property. App. 9a–10a. That, however,
is a misreading of Cedar Point. Moreover, Cedar Point
aside, the Sixth Circuit cannot be correct: The search-
and-arrest privilege merely means that the destruc-
tion of the Slaybaughs’ home was lawful, i.e., that the
officers were not trespassers. It does not mean that
the government is categorically exempt from paying
for the damage.

As noted above, Cedar Point concerned a grant of

access involving no physical property damage. Alt-
hough this Court was sharply divided on that ques-
tion, all nine justices agreed that physical damage is
akin to physical appropriation (and therefore a per se
taking)—separately from any right to exclude govern-
ment from the property. See United States v. Causby,
328 U.S. 256 (1946) (damage to chicken farm from
overhead governmental aircraft constituted a taking,
notwithstanding that government has the privilege to
fly over property); cf. Cedar Point, 594 U.S. at 153 (cit-
ing Causby approvingly); id. at 172 (Breyer, J., dis-
senting) (acknowledging that Causby establishes a
per se takings approach for “economic damage” suf-
fered pursuant to a physical invasion). See also Pum-
pelly v. Green Bay & Mississippi Canal Co., 80 U.S.
166 (1871) (recognizing that the Fifth Amendment re-
quires government to pay just compensation for oth-
erwise-lawful destruction). Thus, Cedar Point’s dicta
 9
cannot support the Sixth Circuit’s baffling conclusion
that people have not been deprived of any property
when government agents literally destroy their
homes.

Even if the Cedar Point dicta were unclear, how-

ever, the Sixth Circuit’s holding is at odds with centu-
ries of takings precedent. As this Court has explained,
the fact that government is privileged to take prop-
erty—i.e., that the taking itself was lawful—does not
absolve government of its duty of just compensation.
In any case, the act that gave rise to the taking might
be “otherwise valid”; nevertheless, “[i]t is a separate
question” whether just compensation is due. Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 425 (1982).

Here, the search-and-arrest privilege establishes

only that the destructive act itself was lawful. The
search-and-arrest privilege, like the necessity privi-
lege, is an individual defense against tort liability; it
does not absolve the government of takings liability.
See, e.g., Mitchell v. Harmony, 54 U.S. 115, 134 (1851)
(“Unquestionably . . . the government is bound to
make full compensation to the owner; but the officer
is not a trespasser.”); see also Grant v. United States,
1 Ct. Cl. 41, 47 (1863) (“taking of private property for
use or destruction, when the public exigency demands
it, . . . is an exercise of the right of eminent domain”);
Bishop v. Mayor & City Council of Macon, 7 Ga. 200,
202 (1849) (“while the agents of the public who offici-
ate are protected from individual liability, the suffer-
ers are nevertheless entitled, under the Constitution,
to just compensation from the public for the loss.”);
City of New York v. Lord, 17 Wend. 285, 291 (N.Y.
 10
Sup. Ct.) ([T]he individual concerned in the taking or
destroying of the property is not personally lia-
ble…and yet…the sufferers would be entitled to com-
pensation from the national government within the
constitutional principle”), affirmed, 18 Wend. 126
(N.Y. 1837).

History shows that the necessity privilege is not a

defense to takings liability, and the panel below con-
ceded as much. App. 21a (“We acknowledge that some
historical evidence suggests that, in certain circum-
stances, persons could be compensated for the taking
of property out of necessity.”). Yet the panel did not
explain why the rule should be any different for the
“search-and-arrest” privilege—and, indeed, there is
no principled basis for distinguishing between the two
privileges. Even the Cedar Point dicta treated the
search-and-arrest and necessity privileges inter-
changeably, 594 U.S. at 160, which is all the more rea-
son not to read that dicta as applying to physical prop-
erty damage.

In any event, the lack of historical precedent ex-

ploring the search-and-arrest privilege in the context
of the Just Compensation Clause is unsurprising. Un-
til quite recently, property damage caused incident to
a search or arrest was likely to be uncommon and de
minimis. In the rare situation where someone refused
to open a door to an agent with a warrant, it is doubt-
ful that a splintered door jamb would lead to litiga-
tion. See, e.g., Sandford v. Nichols, 13 Mass. 286, 289-
90 (1816) (“[No] violence or injury was done but what
was necessary to obtain possession of the goods, [so]
it is probable that very small damages will be recov-
ered upon another trial; the parties will, therefore,
 11
judge, whether it is worth their while to proceed fur-
ther.”).

Requiring compensation for lawfully caused phys-

ical damage is also consistent with how other common
law privileges against trespass function. For example,
in the famous case of Vincent v. Lake Erie Transp. Co.,
109 Minn. 456, 459 (1910), a ship captain moored his
boat on a private dock during a severe storm. He
likely saved his ship by doing so, but as a result the
dock was damaged. The captain’s actions were justi-
fied under the doctrine of private necessity, but the
Minnesota Supreme Court held that the owners of the
ship should still compensate the owners of the dock
for the actual damages sustained:

Theologians hold that a starving man

may, without moral guilt, take what is
necessary to sustain life; but it could
hardly be said that the obligation would
not be upon such person to pay the value
of the property so taken when he became
able to do so. And so public necessity, in
times of war or peace, may require the
taking of private property for public pur-
poses; but under our system of jurispru-
dence compensation must be made.
Id. at 460. If the ship had caused no damage, its own-
ers would have owed nothing because the storm pro-
vided them with a defense against trespass—nomina-
tive or punitive damages would not have been availa-
ble. But having caused damage for their own benefit,
the lawfulness of their actions does not excuse them
from making the dock owner whole. See Rest. 2d Torts
§ 195 (private necessity).
 12
At bottom, the Sixth Circuit’s categorical excep-
tion to the Takings Clause cannot be reconciled with
the very purpose of the Clause, which “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.” Armstrong
v. United States, 364 U.S. 40, 49 (1960). Whether a
house is destroyed by police officers apprehending a
suspect or by firefighters combating a nearby blaze,
these are public burdens that present precisely the
same property loss on innocent, unlucky individuals:
a demolished house. “It would make little sense to say
that the second owner has suffered a taking while the
first has not.” Lingle v. Chevron U.S.A. Inc., 544 U.S.
528, 543 (2005).

II. This Court should consider summary re-

versal.

This case presents another possible opportunity to

consider the serious questions raised in the Baker pe-
tition and flagged by Justice Sotomayor’s statement
regarding denial. Petitioner is mindful, however, that
the statement expressed a desire for more percolation
in the lower courts prior to a full consideration of the
question presented, and that the court was aware of
the decision below.

One way to get more percolation on these issues

would be to issue a narrow summary reversal in this
case. By granting the petition and explaining that Ce-
dar Point’s dicta concerns only the right to exclude–
not physical damage–this Court could give the Sixth
Circuit another opportunity to squarely confront the
“important and complex question” raised by the Baker
 13
petition. This Court has, in the past, granted sum-
mary reversals in similar situations where the courts
of appeals have simply misunderstood the import of
this Court’s decisions. See, e.g., Eberhart v. United
States, 546 U.S. 12, 19 (2005) (“Although we find its
disposition to have been in error, we fully appreciate
that…it was caused in large part by imprecision in
our prior cases.”); Williams v. Johnson, 573 U.S. 773
(2014). Additionally, this Court has issued decisions
in Takings Clause cases that reject one specific ra-
tionale for denying compensation, while leaving the
door open on remand for the other arguments. See Ar-
kansas Game & Fish Comm’n v. United States, 568
U.S. 23, 38–40 (2012) (“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.”).

CONCLUSION

The petition for a writ of certiorari should be

granted.
Respectfully submitted,

Dated: January 14, 2025 JEFFREY H. REDFERN

Counsel of Record
SURANJAN SEN
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
[email protected]
Counsel for Petitioners