
Here's the cert petition that we've been eagerly waiting to drop in a case we've been following (and which gathered a lot of public -- and academic -- attention and outrage).
Yes, this is the case where the Village police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. Homeowner sought compensation for a taking. The Tenth Circuit, however, concluded "no taking" because the police were exercising the police power. And you can't have a taking where the government is exercising the police power.
We were not terribly surprised by the ruling as grossly unfair as it is, because it is pretty typical: customs agents inspect and seize your laptop at the border to check it out but destroy the data on the hard drive? no taking; DEA holds your legal prescription drugs as evidence against a third party but eventually don't use the evidence and return it to you (but by then the drugs have expired)? no taking. But not every jurisdiction goes that way, however.
The Institute for Justice has taken up the case, and the petition poses this Question Presented:
Using explosives and a battering ram attached to an armored personnel carrier, the Greenwood Village Police Department intentionally destroyed Petitioners’ house. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain.
The question presented is whether there is a categorical exception to the Just Compensation Clause when the government takes property while acting pursuant to its police power.
We've always thought that basing a "no compensation" rule on the distinction between what power the government is exercising doesn't make a lot of sense, especially in an inverse claim such as this where yeah, we all know the government isn't exercising its eminent domain power. Because isn't the basis of the "takings" doctrine that even where government isn't formally taking property by eminent domain, it can still be liable for compensation, when it has in fact done so for public use? We think that there are better ways to look at the question on false distinctions about what power the government is exercising (it's all government power, man).
This petition squarely presents the question, so we shall continue to follow along.
Petition for a Writ of Certiorari, Lech v. City of Greenwood Village, No. 19-___ (filed Mar. 11, 2020)