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| The Lech House |
Earlier this week, the US Court of Appeals for the Tenth Circuit ruled that the Takings Clause of the Fifth Amendment does not require the government to compensate an innocent man for the destruction of his house during a police operation:
When they were finished, it looked as though the Greenwood Village, Colo., police had blasted rockets through the house.Projectiles were still lodged in the walls. Glass and wooden paneling crumbled on the ground below the gaping holes, and inside, the family's belongings and furniture appeared thrashed in a heap of insulation and drywall….But now it was just a neighborhood crime scene, the suburban home where an armed Walmart shoplifting suspect randomly barricaded himself after fleeing the store on a June afternoon in 2015. For 19 hours, the suspect holed up in a bathroom as a SWAT team fired gas munition and 40-millimeter rounds through the windows, drove an armored vehicle through the doors, tossed flash-bang grenades inside and used explosives to blow out the walls.The suspect was captured alive, but the home was utterly destroyed, eventually condemned by the City of Greenwood Village. That left Leo Lech's son, John Lech — who lived there with his girlfriend and her 9-year-old son — without a home. The city refused to compensate the Lech family for their losses but offered $5,000 in temporary rental assistance and for the insurance deductible.Now, after the Leches sued, a federal appeals court has decided what else the city owes the Lech family for destroying their house more than four years ago: nothing.
The Takings Clause of the Fifth Amendment requires the government to pay "just compensation" to property owners any time their land or other property is "taken" by the state. That includes many situations where the government destroys or damages the property in question, rather than appropriates it for its own use. For example, in 2013, the Supreme Court unanimously held that a taking can occur as a result of the government deliberately flooding land. As far back as 1872, the Court ruled that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." It seems pretty obvious that the Lech home was "effectually destroy[ed]" by the grenades and other "material" that the Greenwood Village police fired at it.
Why then, did the court rule that no taking had occurred, thereby denying the Lech family any right to compensation? Because the destruction of the house occurred in the course of a law enforcement operation intended to promote "the safety of the public":
[A]s the [Supreme] Court explained in Mugler, when the state acts to preserve the "safety of the public," the state "is not, and, consistent[] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain" in the process….The court is right to point out that this distinction between the "police power" and eminent domain has been adopted in many of previous takings decisions immunizing law enforcement agents from liability. The main relatively new aspect of this case is applying the distinction to the physical invasion or destruction of property, as well as to "regulatory takings" where the government merely restricts the owner's ability to use his or her land. But the rule still makes no sense, and should be done away with.
[W]hen the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property….
The distinction between "police power" and "eminent domain"—with only the latter leading to a taking—is a false dichotomy. In many situations, courts have ruled that a taking has occurred even if the government did not try to use eminent domain—its authority to formally condemn private property for public use. That includes numerous cases involving both regulatory takings and physical invasions.
The distinction between "police power" and "eminent domain"—with only the latter leading to a taking—is a false dichotomy. In many situations, courts have ruled that a taking has occurred even if the government did not try to use eminent domain—its authority to formally condemn private property for public use. That includes numerous cases involving both regulatory takings and physical invasions.
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