A Colorado family whose home was destroyed by police trying to capture an armed suspected shoplifter is pressing on with a lawsuit for damages after losing a round in a federal appeals court.
Courts tend to resist awarding damages to individuals injured by police doing their jobs, on the theory that it unduly burdens enforcement of the law. In this case, the court found that a government may destroy someone’s home without paying compensation, provided that it’s acting under its police power rather than the power of eminent domain. The case is important, according to the family’s lawyers, because the appeals court ignored binding Supreme Court precedent.
“This whole affair has quite simply totally destroyed our lives,” homeowner Leo Lech said. “My son’s family was very literally thrown out into the street with the clothes on their back, offered $5,000, and told to ‘go deal with it.’”
Lech told The Washington Post that he’s considering taking the case all the way to the Supreme Court if he has to.
The family had argued that the destruction of the house constituted a “taking” under the Fifth Amendment that warranted compensation. The takings clause of that amendment states “nor shall private property be taken for public use, without just compensation.”
But a three-judge panel of the 10th Circuit Court of Appeals held that actions by law enforcement officials could never constitute a taking, so no compensation was owed even though the police caused $400,000 worth of damage.
The Institute for Justice, a libertarian public interest law firm based in Arlington, Virginia, has taken up the case, which is cited as Lech v. City of Greenwood Village. The plaintiffs’ lawyer from the original trial, Rachel B. Maxam of Denver, also is participating in the appeal.
“The police are allowed to destroy property if they need to in order to do their jobs safely,” Robert McNamara, a senior attorney with the Institute for Justice, said in a press release. “But if the government destroys someone’s property in order to benefit the public, it is only fair that the public rather than an innocent property owner pay for that benefit.”
The case dates to June 3, 2015, when police chased an apparent shoplifter from a Walmart, according to the petition for rehearing filed Nov. 27. The suspect broke into the Greenwood Village, Colorado, home of Alfonsina and Leo Lech, in which one person was present at the time. Police surrounded the house, and the suspect fired one shot through the garage door, after which the police tried to negotiate with the person for four hours.
Over the next 19 hours, police laid siege to the house in an effort to apprehend the suspect, using explosives, tear gas, flashbang grenades, large-caliber rounds, and battering-ram devices mounted on armored vehicles that punched holes into the sides of the dwelling, which, in the end, was “utterly destroyed.”
The suspect was arrested, but the house was declared a total loss and deemed unsafe to occupy by the local government, which offered the Lechs $5,000 to “help with their temporary living situation” as a “gesture of good faith,” on condition that the Lechs waive all claims. Instead, the Lechs sued, seeking compensation under the Fifth Amendment and Colorado constitution.
The district court rejected the claims, and a panel of the 10th Circuit concurred, finding Oct. 29 that the “actions taken pursuant to the police power do not constitute takings.” The Lechs are now asking the full circuit to hear the case.
The city, Greenwood Village, was satisfied with the panel’s ruling.
“The house was being used as a barricade, and the damage done to it was to remove the barricade and get the gunman out without any loss of life,” city spokeswoman Melissa Gallegos told The Washington Post after the ruling.
“That is not a use of another’s property under eminent domain, but a use of another’s property during a police emergency.”
Lawyers for the Lechs reject that reasoning.
“Property rights are the foundation of our rights,” said Scott Bullock, the Institute for Justice’s president and general counsel.
“The court’s ruling that government officials can purposefully destroy someone’s home without owing a dime in compensation is not just wrong. It is dangerous, and it is un-American. The Institute for Justice is committed to seeing it overturned, for the Lechs and for the protection of property owners across America.”