October 29, 2019
United States 10th Circuit Court of Appeals
791 Fed. Appx. 711, 2019 U.S. App. LEXIS 32393 (cert denied)
The 10th Circuit Court of Appeals held that the destruction of a home by police officers attempting to apprehend a criminal suspect was not a taking under the Fifth Amendment of the United States Constitution.
The Lechs owned a home for their son’s family in Greenwood Village, Colorado. Police responded to a burglar alarm in the Lech’s home and learned an armed criminal suspect was inside. During the course of a 19-hour standoff between the suspect and police, the officers employed increasingly aggressive tactics including firing gas munition into the home, breaching doors, explosives, and opening multiple holes in the home to deploy a tactical team. As a result of the standoff, the Lech’s home was rendered uninhabitable. While the City offered to help with temporary living expenses when the home was demolished and rebuilt, it otherwise denied liability for the incident and declined to provide any further compensation.
The Lechs sued alleging the City violated the takings clause by damaging the Lechs’ home without providing just compensation. The district court rejected this argument and distinguished between the state’s eminent domain authority and the state’s police power allowing it to regulate private property for the protection of public health, safety, and welfare, with only the former constituting a taking requiring just compensation. The district court determined that the state’s police power encompasses enforcement of criminal laws, and that because the officers damaged the home while attempting to apprehend a criminal suspect, their actions fell within the scope of the state’s police powers and not eminent domain. The Lechs appealed the district court’s order.On appeal, the 10th Circuit rejected the Lechs’ broad argument that any physical appropriation of private property by the government—whether committed pursuant to the power of eminent domain or the police power—gives rise to a per se taking requiring compensation. The Court held that the city acted pursuant to the state’s police power, and distinguished cases involving law enforcement seizing property for evidence and cases involving damage to real property that is incidental to the exercise of the police power. The Lechs’ home had become instrumental to criminal activity as a hideout for a fugitive, and the damage caused in course of arrest on the property was not a taking for public use, but rather an exercise of police power.