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Over the past fifty years, SWAT teams within local police departments have evolved from loosely staffed and lightly equipped operations to professional units with specifically designated personnel, training, and sophisticated weaponry. This evolution brings into focus two questions. First, do takings clauses in the federal and state constitutions require governments to compensate property owners for the destruction caused during SWAT raids? Second, if officers conducting these raids act unreasonably, can qualified immunity shield them from constitutional claims for damages?
With its decision in Hamen v. Hamlin County, the Supreme Court of South Dakota became the latest appellate court to weigh in on these questions. It unanimously held that the state takings clause does not require compensation for damage done in the course of a law enforcement operation. It also generally agreed that in cases where officers act unreasonably, qualified immunity might not always shield them from liability.
In 1997, Gareth Hamen purchased a mobile home located within 200 yards of his house. He renovated it and—when the opportunity presented itself—rented it. Gareth’s children also alternated staying there.
Fast forward nineteen years, Gareth’s son Gary Hamen was a wanted fugitive with an outstanding arrest warrant. Reports indicated that Gary Hamen was armed and threatened to shoot himself and anyone who came near him.
During the manhunt for Gary, the Hamlin County sheriff learned that Gary was inside the mobile home and asked for a local SWAT team to assist him in entering premises. The team arrived with an armored vehicle and a drone, securing the perimeter around the mobile home and monitoring Gary’s whereabouts. Shortly thereafter, the sheriff asked for further reinforcements from another special-operations unit—the Codington County Special Response Team.
Witness reports and drone footage indicated that Gary was no longer in the mobile home, and had been seen walking in the nearby river. Immediately before entering the home, the officers were made aware of these reports. Regardless, the sheriff authorized both units to raid the mobile home on the chance Gary was still there. The sheriff did so without requesting Gareth’s permission and without a warrant. During the raid, the officers used armored vehicles to ram through the mobile home’s windows and its front and back doors, damaging the walls and the septic system. Gareth estimated that the damage caused by the raid totaled $18,778.61.
When Gareth sued Hamlin County, the sheriff, and various individual officers, he wanted two things to make him whole. First, he filed a claim for inverse condemnation under Article VI, § 13 of the South Dakota Constitution. According to the clause, “[p]rivate property shall not be taken for public use, or damaged, without just compensation.” Gareth’s theory was that the damage caused by the officers during the raid of the mobile home was a damage or a taking, warranting just compensation. Second, he filed two constitutional claims under 42 U.S.C. 1983, which authorizes suits against state and local officials—in federal and state courts—for violations of rights “secured by the Constitution and laws” of the United States. The first 1983 claim questioned the legality of the warrantless entry into Gareth’s mobile home. The second one alleged that the officers used excessive force when they did so.
The parties began their dispute in the Third Judicial Circuit Court, where plaintiffs (Gareth and his wife Sharla) and defendants (Hamlin County, the sheriff, and various John Doe officers) filed cross-motions for summary judgment. That court granted summary judgment to Hamlin County, holding that there was no official policy or custom approving or condoning the damage caused to the mobile home, and denied the rest of the motions. Hamlin County, along with the sheriff, nonetheless appealed, seeking clarity from the South Dakota Supreme Court on two very important and previously unanswered questions: First, are police power takings subject to the just compensation clause? And second, does qualified immunity bar suits against officers who acted unreasonably?
Issue I: Does the police power represent a categorical exception to the Just Compensation Clause?
Importantly, the parties did not dispute whether the actions of the special-unit teams in this case constituted an exercise of the police power. The question was whether such exercise represents a categorical exception to the just compensation clause, which is generally associated with the power of eminent domain or whether, as Justice Souter reasoned in an opinion that he wrote when he was a Justice of the New Hampshire Supreme Court, the “line between a non-compensable exercise of the police power and a compensable taking” depends on “balancing the respective interests of society and property owners.”
This was a question of first impression, and the South Dakota Supreme Court unanimously adopted the categorical rule: there is no right to just compensation under the South Dakota takings clause when law enforcement exercises police powers by damaging private property while executing a warrant or pursuing a fleeing felon. The court primarily looked to decisions in other jurisdictions to reach its conclusion.
In California, the state’s highest court concluded that a property owner was not entitled to just compensation when law enforcement deployed tear gas in his store to flush out a suspect. In the court’s view, the actions of law enforcement were distinct from the function of taking or damaging property for public use. The same categorical line was drawn in the highest courts of Oklahoma and Washington State, as well as in the U.S. Tenth Circuit Court of Appeals, when it was interpreting Colorado’s takings clause.
In Alaska, New Hampshire, Minnesota, and Texas, the courts rejected the categorical rule, reasoning that “simply labeling the actions of the police as an exercise of the police power cannot justify the disregard of the constitutional inhibitions.”
After reviewing the language of the takings clause of the South Dakota constitution—“[p]rivate property shall not be taken for public use, or damaged, without just compensation”—as well as its own decisions interpreting the term “public use,” the South Dakota Supreme Court ultimately sided with those courts adopting the categorical approach, concluding that the public use and police power functions do not overlap and thus the use of police power, unlike the use of the power of eminent domain, cannot give rise to a compensable damage or taking.
Issue II: Does qualified immunity protect the sheriff from liability, even if he acted unreasonably?
In addition to suing for just compensation, Gareth also sued for damages under a separate theory of liability: that the special-unit officers acted unreasonably when they rendered his mobile home unusable. He argued that this unreasonableness manifested itself in two ways: first, through a warrantless entry into the mobile home, and second, through the use of excessive force when entering it.
As explained by D.C. v. Wesby, when a state employee is granted qualified immunity, a case can be dismissed before the facts are determined if a court decides that the violations were not clearly established in a federal appellate court of the relevant jurisdiction or in the United States Supreme Court. This is possible even if the allegations in the complaint are true and the alleged constitutional violations have occurred.
Here, the court had to assess qualified immunity for claims of (1) warrantless search of the mobile home and (2) the use of excessive force. As to the former, the court determined that, assuming there was no objectively reasonable basis to enter the mobile home, as Gareth alleges, and assuming none of the exceptions to the Fourth Amendment apply, the law was clearly established enough that a reasonable officer should have known that what he was doing was unconstitutional. Therefore, qualified immunity does not apply, and Gareth is allowed to go back to the state circuit court and prove that the sheriff violated his Fourth Amendment right when he entered the mobile home without a warrant.
As to the latter, the court held that even assuming there was a use of excessive force, the right to be free from it was not clearly established, and so qualified immunity shields the sheriff from liability and prevents Gareth from going forward with this claim. The court explained that the burden was on Gareth to find a precedent in the relevant jurisdiction holding that when officers use armored vehicles to enter a mobile home belonging to an uninvolved third-party while searching for a fleeing suspect who can potentially present a danger to himself and others, they violate the Fourth Amendment. Because Gareth failed to do so, qualified immunity applied, preventing his claim from going forward.
Justices Kern and Devaney dissented on this point. According to them, the majority was wrong to conclude that “the use of force was not excessive under clearly established law.” In their view, “existing precedent may have provided sufficiently clear guidance to law enforcement faced with the circumstances present here.” Justice Kern did not provide a case to support this position. Rather, she turned to a well-known exception to the qualified immunity standard that has been rarely used—the so-called obviousness exception. First announced by the U.S. Supreme Court in Hope v. Pelzer, this exception allows some room when the violations are egregious enough that “unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Justice Kern would have denied qualified immunity based on this obviousness exception and allowed the excessive force claim to proceed.
Justice Gilbertson also filed a dissenting opinion. Unlike Justices Kern and Devaney, he dissented because in his view the qualified immunity standard was misapplied. He disagreed with the approach taken by the state circuit court, which he said should have “decided whether qualified immunity existed as a matter of law, and then either granted summary judgment or permitted the case to proceed to trial if it found immunity did not exist.” The circuit court had concluded that there was an issue of material fact and denied qualified immunity on that basis. According to Justice Gilbertson, this was wrong: “If the circuit court found the existence of disputed facts, it was to view the facts in a light favorable to the Hamens [the property owners], and then rule on the issue of qualified immunity.” Thus, instead of concluding that qualified immunity does not shield the sheriff on the unwarranted search claim, Justice Gilbertson would have remanded the question back to the district court.
To summarize, the court had before it three questions to answer. First, whether property damage inflicted pursuant to an exercise of police powers can sometimes be compensable under South Dakota’s takings clause. The answer to that was a unanimous no. Second, whether an officer who enters a home without a warrant to look for a fleeing suspect has qualified immunity from liability under the U.S. Constitution. The answer to that was also no. And third, whether qualified immunity shields an officer who rams through doors and windows of a third-party mobile home in the process of pursuing a fleeing suspect. The answer to that was yes. Gareth can now go back to the state circuit court and continue his one remaining claim on the warrantless entry.
 Daniel Ross, The Evolution of SWAT Team Equipment from WWII Rifles to Bearcats, PBS (May 4, 2016), https://www.pbs.org/independentlens/blog/the-evolution-of-swat-team-equipment-from-wwii-rifles-to-bearcats/.
 Hamen v. Hamlin Cty., 2021 WL 501207, *1 (S.D. 2021).
 Id. at *2.
 Id. at *3.
 42 U.S.C. § 1983.
 Hamen, 2021 WL 501207, at *3.
 Soucy v. New Hampshire, 506 A.2d 288, 289 (N.H. 1985).
 Hamen, 2021 WL 501207, at *7.
 Id. at *5 (citing Customer Co. v. Sacramento, 895 P.2d 900, 901 (Cal. 1995)).
 Id. at *5-6 (citing cases).
 Id. at *6.
 Id. at *7.
 D.C. v. Wesby, 138 S. Ct. 577, 589 (2018).
 Hamen, 2021 WL 501207, at *12.
 Id. at *14.
 Id. at *13-14.
 Id. at *15.
 Id. (quotations marks omitted).
 Wesby, 138 S. Ct. at 590.
 Hamen, 2021 WL 501207, at *17.
 Id. at *18.
 Id. at *2.