The Supreme Court today declined to review a Tenth Circuit decision that held a municipality could not be liable for a taking when its police officers pretty much destroyed a house in the course of dislodging a suspect who had holed up there.
Along with our colleague Bill DeVinney, we filed an amicus brief in support of the homeowner, arguing that an invocation of "police power" isn't the only question in these kind of cases, and the 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.
We had hoped that the Court would take notice of this case because after after the petition was filed, the coronavirus pandemic exploded and the legal questions about the power of the government to act for police power and other emergency reasons while avoiding takings liability has moved to the forefront of a lot of people's thinking. We set out our thinking about this issue (including Lech) in Evaluating Emergency Takings: Flattening The Economic Curve.
The "police power categorically isn't a taking" issue isn't going away. We'll stand by for the next case.
