City Destroys Home Without Paying: Will the Supreme Court Take the Case?

March 11, 2020 Updated: March 16, 2020

Commentary

City authorities destroyed the Lech family home. Everyone acknowledges that the Lechs were entirely innocent. Yet the city has refused compensation.

Two federal courts have sided with the city. The Lechs will soon ask the Supreme Court to review the case.

The Lechs weren’t in their Greenwood Village, Colorado, house when an armed criminal suspect invaded it and holed up there. Greenwood Village police barricaded the place. When after five hours they were unable to convince the fugitive to surrender, police used a BearCat armored vehicle to tear down the house around him.

When the dust settled, the police had their suspect. But the Lechs no longer had a house. According to their attorney, Denver lawyer Rachel Maxam, for technical reasons the Lechs’ insurance award was not enough to cover their losses.

No one denies that the police were within their rights to act as they did. In the exercise of official duties, government personnel sometimes must seize or destroy private property. However, we also have adopted state and federal constitutions saying that when an innocent person loses his property that way, the public that benefits should pay for it.

For example, the constitution of the Lechs’ state of Colorado provides that “Private property shall not be taken or damaged, for public or private use, without just compensation.” The Takings Clause in the Fifth Amendment to the U.S. Constitution—which the Supreme Court has held applies to state and local governments—reads in part, “nor shall private property be taken for public use, without just compensation.”

The first step toward understanding the city’s arguments against paying for the damage is to grasp a legal principle: A city is not a semi-independent sovereignty like a state in our wider federal system. It is legally a subdivision of the state, and exercises only the power delegated to it by the state.

The next step is to understand the legal phrase “police power.” This phrase doesn’t derive from “police” in the sense of law enforcement (although law enforcement was involved in this instance). This is an older usage, meaning an area’s internal regulation and governance. A state or city exercises its police power when it regulates to protect or promote the health, safety, morals, or general welfare of the public.

The federal government also has police power in Washington, in federal territories, and in certain federal “enclaves.” However, the federal government doesn’t have a general police power within state boundaries. It enjoys only specific powers “enumerated” (listed) in the Constitution. (That’s why honest constitutional scholars maintain that the federal government shouldn’t be meddling in many areas of life into which it has intruded.)

The city of Greenwood Village argues that when it destroyed the Lechs’ home, it was exercising its police power. This is correct. The city further claims that when government takes or destroys property pursuant to its police power, no compensation is due. The city contends that compensation must be paid only when government exercises eminent domain—that is, the formal condemnation and taking of property.

Therefore, according to the city’s argument, when government seizes your house for a park, it must pay. But if it seizes your house when carrying out its regulatory authority, it need not pay. This, however, is incorrect.

Examine once again the language quoted above from the U.S. and Colorado constitutions. It says the government may not take property without compensation. Period. It doesn’t say “except when government is exercising the police power.” In fact, the federal Takings Clause was part of a larger package inserted at the suggestion of two Founding Fathers, Robert Lansing and James Madison, to protect people against government intrusion against settled rights. The sudden destruction of a home certainly qualifies.

Anyway, whether a government action is constitutional shouldn’t depend on how the government labels it.

The city further contends that eminent domain (condemnation) is a function distinct from the police power. But that also is incorrect. As the Supreme Court has stated, eminent domain is merely one method of carrying out the police power. City authorities may reduce urban density by zoning an area for only single-family homes or by condemning land for a park. Both actions share the same purpose, and both are exercises of the police power.

Indeed, the Supreme Court repeatedly has ordered compensation in cases in which government was exercising the police power but not eminent domain. These are called regulatory takings cases. They direct the government to pay compensation if it (1) destroys all of the value of the owner’s property, or (2) causes physical invasion of the owner’s land. What happened to the Lechs certainly qualifies as a physical invasion.

One possible objection to compensating the Lechs is that the city didn’t seize the house “for public use” in the way it might establish a greenbelt or a park. However, the city took possession of the land and house for some time. Moreover, in the Constitution the phrase “public use” doesn’t necessarily require physical use. It may mean simply “public benefit.”

The Supreme Court so ruled in the 2005 case of Kelo v. City of New London. This decision was highly controversial among defenders of property rights. They claimed that “public use” meant only physical occupation, not mere public benefit. But as I pointed out at the time, the historical record shows that when the founding generation employed the word “use” in a property context, they meant “benefit.”

Thus, in destroying the Lech residence to benefit the public, the city was seizing property for public use. The city therefore owes compensation.

The Supreme Court should review the case and correct the injustice the Lechs have suffered.

Rob Natelson is a senior fellow in constitutional jurisprudence at the pro-freedom think tank Independence Institute in Denver. He was a law professor for 25 years and is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.