Today, along with our colleague Bill DeVinney, we filed this amicus brief in support of the property owners' cert petition in a case we've been following for a while.
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.
Instead of summarizing our brief, how about we just post the Summary of Argument:
This Court should review the Tenth Circuit’s holding that action taken by the government under its police power—as opposed to an exercise of eminent domain—can never trigger a taking under the Fifth Amendment’s Just Compensation Clause. This brief makes two main points.Now we wait. Stay tuned.1. Government’s assertion that it destroyed property for a police power purpose is but one of the factors a court considers when an owner asserts the destruction resulted in a taking. Police power may be a compelling factor militating against compensation. But it should never be the sole factor, as the Tenth Circuit concluded.
2. The brief also addresses a question that often arises after the police or other government officials damage a home—or, as in this case, nearly destroy it: why should the homeowner be able to seek just compensation for a taking when insurance is available? The short answer is that nearly all homeowners’ insurance policies exclude from coverage any loss caused by an order of a government or civil authority. A majority courts have interpreted this provision to preclude recovery for damage inflicted by the police in executing a search warrant or apprehending a fleeing suspect.
Consequently, if the Tenth Circuit’s holding stands, many homeowners who suffer losses when their homes become are occupied or damaged by the police—no doubt a public purpose—through no fault of their own will be left without any remedy for damage inflicted by police searching for evidence, apprehending suspects, or otherwise exercising the police power.
The petition presents the Court an opportunity to clarify that an invocation of “police power” is not the dispositive fact in a takings analysis. Rather, the “character of the government action” is but one of the issues to be determined, not the conclusive one as the Tenth Circuit concluded. The Court should grant review.
