Michigan Supreme Court Challenge Seeks To Protect Homeowners When SWAT Teams Destroy Private Property

Outside Legal Counsel PLC, a property and constitutional rights law firm, today filed an Application for Leave to Appeal with the Michigan Supreme Court asking the Court to resolve an increasingly important property-rights question: When government deliberately damages an innocent citizen’s property to accomplish a public law-enforcement objective, can government simply walk away from the repair bill?

OLC represents Bay City property owner Anthony Banaszak in Banaszak v. State of Michigan. The appeal asks the Michigan Supreme Court to enforce the independent protection of private property contained in Article X, § 2 of the Michigan Constitution.

“Government and police sometimes need to take aggressive action to protect the public, but when the deliberately destroy the homes and property of an innocent citizen to accomplish that public mission, the cost belongs to the government,” said Philip L. Ellison, attorney and principal of Outside Legal Counsel PLC. "Government must pay for what its SWAT team breaks."

The case arose from an October 27, 2022 law-enforcement operation at Banaszak’s six-unit residential property on Garfield Avenue in Bay City.

Police were seeking to arrest tenant Harold Nielsen, who had an outstanding felony warrant and barricaded himself inside the building. Local officers eventually withdrew, established a perimeter and called in the Michigan State Police Emergency Support Team—the MSP equivalent of a SWAT team. What followed was not accidental property damage.

MSP records document officers deliberately breaking windows, deploying direct-impact rounds, firing repeated volleys of 37-millimeter chemical munitions through the structure, and using BearCat armored vehicles during the operation. The hours-long standoff was recorded by body-cam and on-lookers.

The State’s own tactical timeline records six SL6 rounds fired into the residence at 4:38 p.m., additional rounds two minutes later, another five barricade-penetrating chemical rounds at 4:43 p.m., and three more directed at a basement window minutes later.

The chemical projectiles themselves were specifically designed to penetrate hard targets such as windows and wood doors before releasing their payload.

Photographs now before the Michigan Supreme Court show shattered windows, projectile holes, broken exterior surfaces and damage on multiple sides and levels of the building.

Banaszak committed no crime. He was not the subject of the arrest.

And once Nielsen was captured, MSP simply left and the property damage remained.

The Michigan Court of Appeals nevertheless ruled that the destruction was not a compensable taking because the police ultimately wanted Nielsen, rather than Banaszak’s house.

OLC’s Supreme Court application argues that distinction fundamentally misunderstands Michigan’s Constitution.

“The government’s ultimate objective and the physical target of its force are two different things,” Ellison said. “The police wanted the suspect—but they destroyed the house to get him. An armored vehicle does not accidentally hit a building. A barricade-penetrating projectile does not accidentally get fired through a window.”

The legal filing argues that the Court of Appeals created an “ultimate-purpose” limitation that does not appear anywhere in Article X, § 2 and conflicts with longstanding Michigan Supreme Court decisions instructing that the word “taking” should not be interpreted narrowly. Michigan precedent recognizes serious physical injury, destruction of value, partial destruction and interference with ordinary use as potential takings.

The appeal also arrives as federal courts across the country have increasingly rejected similar claims under the Fifth Amendment.

The Sixth Circuit—the federal appellate court governing Michigan—has already rejected compensation for homeowners whose house sustained approximately $70,000 in uninsured damage during a police operation. Other federal appellate courts have reached similarly restrictive conclusions.

OLC is therefore asking the Michigan Supreme Court to interpret Michigan’s own Constitution independently.

That distinction is significant. The Michigan Supreme Court has previously recognized that Michigan's Takings Clause can provide property owners greater protection than its federal counterpart.

“State constitutions are not decorative copies of the federal Constitution,” Ellison said. “Michigan has its own constitutional promise protecting private property, and Michigan courts have an independent responsibility to enforce it.”

Courts in other states have already recognized compensation claims arising from deliberate police destruction. The application discusses decisions from the Texas and Minnesota Supreme Courts concluding that innocent property owners could seek compensation when police damaged homes while apprehending dangerous suspects.

Banaszak was left the bill, yet OLC argued that the constitutional principle does not depend on whether the officers acted improperly. Quite the opposite.

“This case does not require a court to condemn police officers for doing their jobs,” Ellison said. 

The filing argued that police can be completely justified in taking necessary action and the government can still have a constitutional obligation to compensate the innocent person whose property was deliberately sacrificed. 

“Public safety is a public obligation. Its cost cannot constitutionally be assigned to the unlucky person whose house happened to stand between the State and its felony suspect.”

Outside Legal Counsel has asked the Michigan Supreme Court to grant the application, reverse the lower courts and hold that the State’s intentional physical destruction of Banaszak’s property constituted a compensable taking under the Michigan Constitution.

CASE INFORMATION

Michigan Court of Appeals No. 375636

Court of Claims No. 23-000097-MM