Here's the city's Brief in Opposition in a case we've been following (so closely, in fact, that we filed an amicus brief in support of the property owner - see "Amicus Brief: Invocation Of "Police Power" Is Not Dispositive In Takings"). A case in which the issues have taken on new and heightened importance.
This is the case where the municipal police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. The 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, right?
The homeowner filed a cert petition, arguing that "[t]he 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."
The city doesn't see it that way, naturally, and it formulates the Question Presented this way:
This Court, along with lower federal and state courts, has historically and consistently distinguished between the power of eminent domain and the police power. The question presented is whether damage sustained to a third-party’s rental property caused by law enforcement’s admittedly reasonable efforts to apprehend an armed, aggressive and barricaded suspect gives rise to a compensable taking of property under the Fifth Amendment of the United States Constitution.
The reason why we think that this case has taken on even more importance, is twofold. First, the case presents the same issue as in the coronavirus takings cases (here are some of the complaints that have been filed in courts around the nation: see here, here, here, here and here). Our thoughts on the takings aspects of that issue here ("Evaluating Emergency Takings: Flattening The Economic Curve."). This case could not be a more timely opportunity for the Court to provide guidance on whether an invocation of "police" or emergency power short-circuits the takings analysis.
Second, the ongoing protests and focus on police misconduct. While this case is not one where the police are alleged to have misbehaved, the question of whether a municipality can be held liable for just compensation when the police -- in the course of an otherwise proper pursuit -- destroy property for public use or benefit, is certainly highly related. If police remain immune from civil liability by the qualified immunity doctrine, perhaps the Takings Clause can serve as a check on unconstitutional municipal action?
As for the BIO's contention that there's no lower court divergence of opinion on this question? We think otherwise: 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.
We will keep following along (Court's e-docket here), of course. Stay tuned.
Brief for the Respondents in Opposition, Lech v. Jackson, No. 19-1123 (June 3, 2020)