Does a common law privilege to access property categorically absolve the government's duty of just compensation for property it physically destroys?

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 requires 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 government’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 destroys 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 identical to Baker, but t he Sixth Circuit panel below denied compensation on different grounds: Because the Slaybaughs 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 support of this conclusion, the panel relied on dicta from Cedar Point Nursery v. Hassid , where this Court noted that lawful searches do not “appropriate” a n 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?”