Petition for Writ of Certiorari — Leo Lech, et al., Petitioners v. Chief John A. Jackson, et al.

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------LEO LECH, ET AL.,

Petitioners,

v.

THE CITY OF GREENWOOD VILLAGE, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------RACHEL B. MAXAM

LAW OFFICE OF

RACHEL B. MAXAM, PLLC

1543 Champa St., Ste. 400

Denver, CO 80202

(720) 526-2928

ROBERT J. MCNAMARA

JEFFREY H. REDFERN*

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

*Counsel of Record

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Using explosives and a battering ram attached to

an armored personnel carrier, the Greenwood Village

Police Department intentionally destroyed Petitioners’

house. Afterwards, they offered the family $5,000 “to

help with temporary living expenses.” The family sued,

arguing that they were entitled to Just Compensation

under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however,

held that no compensation was due because the home

was destroyed pursuant to the police power rather

than the power of eminent domain.

The 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.

ii

PARTIES TO THE PROCEEDINGS BELOW

Petitioners Leo Lech, Alfonsia Lech, and John Lech

were plaintiffs in the United States District Court for

the District of Colorado and appellants in the Court of

Appeals for the Tenth Circuit.

Respondent the City of Greenwood, along with Police Chief John A. Jackson, Commander Dustin Varney,

Officer Mic Smith, Officer Jeff Mulqueen, Officer Austin

Speer, Officer Jared Arthur, Officer Bryan Stuebinger,

Officer Juan Villalva, Officer Andy Wynder, Officer

Anthony Costarella, and Officer Rob Hasche were defendants in the United States District Court for the

District of Colorado and appellees in the Court of Appeals for the Tenth Circuit.

The Colorado Municipal League and the International Municipal Lawyers Association both participated as amici curiae in the Court of Appeals for the

Tenth Circuit.

RELATED PROCEEDINGS

Arapahoe County District Court (Colorado)

Lech v. Jackson, No. 2016CV031378

(September 7, 2018)

United States District Court (D. Colo.)

Lech v. Jackson, No. 16-195

(January 9, 2018)

United States Court of Appeals (10th Cir.)

Lech v. Jackson, No. 18-1051

(October 29, 2019)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

PARTIES TO THE PROCEEDINGS BELOW ......

ii

RELATED PROCEEDINGS ..................................

ii

TABLE OF CONTENTS ........................................

iii

TABLE OF AUTHORITIES ...................................

v

PETITION FOR A WRIT OF CERTIORARI .........

1

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................................

2

STATEMENT..........................................................

2

REASONS FOR GRANTING THE PETITION .....

6

A.

B.

The decision below conflicts with this Court’s

longstanding construction of the Just Compensation Clause ..........................................

6

Lower courts are deeply divided on how the

Just Compensation Clause interacts with

the police power ........................................... 14

1. Cases that hold that the police power

is categorically exempt from the Just

Compensation Clause ............................ 15

2. Cases recognizing that the police power

is not exempt from the Just Compensation Clause ............................................. 19

C.

The Question Presented is important .........

23

CONCLUSION .......................................................

26

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

United States Court of Appeals for the Tenth

Circuit, Order and Judgment, October 29,

2019 .................................................................. App. 1

United States District Court for the District of

Colorado, Order, January 8, 2018 .................. App. 20

United States District Court for the District of

Colorado, Final Judgment, January 9, 2018.... App. 58

United States Court of Appeals for the Tenth

Circuit, Order Denying Petition for Rehearing, December 27, 2019 .................................. App. 61

v

TABLE OF AUTHORITIES

Page

CASES

AmeriSource Corp. v. United States, 525 F.3d

1149 (Fed. Cir. 2008) ................................... 15, 23, 25

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ............................... 6, 7, 13, 14, 22

Brewer v. Alaska, 341 P.3d 1107 (Alaska 2014) .........20

Brutsche v. City of Kent, 193 P.3d 110 (Wash.

2008) ........................................................................17

Chicago v. Sturges, 222 U.S. 313 (1911) .......................9

Customer Co. v. City of Sacramento, 895 P.2d 900

(Cal. 1995) ...............................................................18

Eggleston v. Pierce County, 64 P.3d 618 (Wash.

2003) ............................................................ 16, 17, 18

Garrett v. City of Topeka, 916 P.2d 21 (Kan. 1996) .......20

Horne v. Department of Agriculture, 135 S. Ct.

2419 (2015) ........................................................ 10, 11

Jonson v. Manitowoc County, 635 F.3d 331 (7th

Cir. 2011) .................................................................16

Just v. Marinette Cty., 201 N.W.2d 761 (Wis. 1972)........21

Kagel v. Brugger, 119 N.W.2d 394 (Wis. 1963) ...........22

Kelley v. Story Cty. Sheriff, 611 N.W.2d 475 (Iowa

2000) .................................................................. 18, 19

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005) ................................................................. 12, 19

Loftus v. Department of Agric., 232 N.W. 412

(Iowa 1930) ..............................................................19

vi

TABLE OF AUTHORITIES—Continued

Page

Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982) ............................ 11, 12

Mugler v. Kansas, 123 U.S. 623 (1887) ................. 12, 13

National Board of YMCA v. United States, 395

U.S. 85 (1969) ...................................................... 9, 10

Patty v. United States, 136 Fed. Cl. 211 (2018) ..... 22, 23

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922) .......................................................................12

Pumpelly v. Green Bay & Mississippi Canal Co.,

80 U.S. 166 (1871) ................................................. 7, 8

Simmons v. Loose, 13 A.3d 366 (N.J. Super. Ct.

App. Div. 2011) ........................................................21

Soucy v. New Hampshire, 506 A.2d 288 (N.H.

1985) ............................................................................ 21

The License Cases, 46 U.S. 504 (1847) ........................16

United States v. Banks, 540 U.S. 31 (2003) ................24

United States v. Russell, 80 U.S. 623 (1871) ...... 8, 9, 12

Walker v. Johnson County, 209 N.W.2d 137 (Iowa

1973) ........................................................................19

West v. City of Caldwell, 931 F.3d 978 (9th Cir.

2019) ........................................................................25

CONSTITUTIONAL PROVISION

U.S. Const. amend. V ................................ 2, 7, 8, 20, 22

vii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

28 U.S.C. § 1254(1) ................................................... 1

OTHER AUTHORITIES

Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (2014) ...........24

St. George Tucker, 1 Blackstone’s Commentaries:

With Notes of Reference, to the Constitution

and Laws, of the Federal Government of the

United States; and of the Commonwealth of

Virginia (1803) ..........................................................9

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit is unreported and reproduced at

App. 1. The opinion of the U.S. District Court for the

District of Colorado is unreported and reproduced at

App. 20.

---------------------------------♦---------------------------------

JURISDICTION

The judgment of the court of appeals was entered

on October 29, 2019. Petitioners obtained an extension

of time to file a petition for rehearing en banc and

timely filed that petition on November 27, 2019. That

petition was denied on December 27, 2019. This petition is timely filed on March 11, 2020. Petitioners

invoke this Court’s jurisdiction under 28 U.S.C.

§ 1254(1).

---------------------------------♦---------------------------------

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Just Compensation Clause of the Fifth Amendment provides that “nor shall private property be taken

for public use, without just compensation.”

---------------------------------♦---------------------------------

STATEMENT

Local government officials intentionally destroyed

Petitioners’ house, and Petitioners therefore filed a federal suit seeking compensation under the Just Compensation Clause. But the lower court held that no

compensation was due at all because the officials who

destroyed the home were acting pursuant to the “police

power.” This Court’s intervention is warranted because

its precedents squarely foreclose the sort of categorical

exemption from the Just Compensation Clause created

by the decision below—and because, despite that fact,

a growing faction of lower courts has adopted just such

an exemption.

1. On June 3, 2015, a Walmart employee in Aurora, Colorado, phoned police to report a suspected

shoplifter. App. 21. When police arrived, however, the

suspect fled the scene in a vehicle. App. 22. A pursuing

officer later found that vehicle abandoned and saw the

suspect fleeing on foot near the border of Greenwood

Village. At some point thereafter, the suspect broke

into the Greenwood Village home owned by Petitioners

(a home he selected, as far as the record reveals,

apparently at random). Ibid. The home was initially

3

occupied, though the occupants fled promptly, leaving

the house occupied solely by the suspected shoplifter

by the time the Greenwood Village police arrived. Ibid.

But the Greenwood Village police were met with a

gunshot—the suspect was armed and willing to shoot.

App. 22–23. A standoff ensued, during which the police

fired two “40 mm rounds of cold gas munitions” into the

house and then breached both the front and back doors

using a tank-like vehicle called a BearCat. App. 23–24.

When this proved unsuccessful, they deployed more

gas munitions (again unsuccessfully) and then decided

to use the BearCat to open up holes in the sides of the

home. App. 25–26. Specifically, officers were instructed

to “take as much of the building as needed without

making the roof fall in.” App. 26. And the purpose of

the destruction of the house’s walls is undisputed: The

police sought to make the apprehension of the suspect

easier, and they destroyed the walls in order to (1) create sightlines into the home, (2) make the suspect feel

more exposed within the home, and (3) create gun

ports that would allow snipers to fire into the home

from a distance. Ibid.

At the end of the standoff, the suspect was apprehended, but Petitioners’ home was destroyed. The

following pictures (included in the appellate record below) depict the home’s condition in the immediate aftermath:

4

See C.A. App. 309. Ultimately, Petitioners were forced

to tear the home down and build anew. App. 27.

2. Petitioners sued in state court, alleging in

relevant part that Greenwood City and its police

had taken their house for the benefit of the public and

that this was a taking requiring compensation under

the Just Compensation Clause, and the defendants

5

removed to federal court. App. 27.1 The district court

rejected the Just Compensation Clause claim, finding

that (1) there should be an “emergency exception” to

the Constitution’s general compensation requirement

and that (2) the actions of law enforcement here constituted an emergency. App. 44–46.

The Tenth Circuit affirmed, though on different

grounds. Rather than relying on an emergency exception, the appellate court squarely held that “when the

state acts pursuant to its police power, rather than the

power of eminent domain, its actions do not constitute

a taking for purposes of the Takings Clause.” App. 14.

And, since the police were engaged in a quintessential

exercise of the police power by “entering property to effectuate an arrest,” that meant no taking could have

occurred here. App. 15 (quotation marks omitted). The

court stressed that there are limits to the police power,

but that those limits are largely those of the Due Process Clause, not the Just Compensation Clause. App.

18. The fact that the home was destroyed in the course

of exercising the police power was dispositive of—and

fatal to—any claim under the Just Compensation

Clause.

This petition followed.

---------------------------------♦---------------------------------

1

The Complaint also asserted other violations of federal and

state law. Ibid.

6

REASONS FOR GRANTING THE PETITION

Review is warranted here because the decision below announces a categorical exception from the Just

Compensation Clause that is directly contrary to years

of this Court’s precedents. Review is also warranted because the decision below is just the latest in a growing

trend of federal courts adopting this sort of categorical

exception in direct conflict with the highest courts of

several states that apply doctrines more in line with

this Court’s cases.

A. The decision below conflicts with this Court’s

longstanding construction of the Just Compensation Clause.

The opinion below holds “that when the state acts

pursuant to its police power, rather than the power of

eminent domain, its actions do not constitute a taking

for purposes of the Takings Clause.” App. 14. This holding conflicts with two principles of law that are well

established by this Court’s Fifth Amendment decisions.

First, this Court has emphatically rejected any

reliance on “categorical” or “automatic exemption[s]”

from the Just Compensation Clause. Arkansas Game

and Fish Comm’n v. United States, 568 U.S. 23, 36–38

(2012). To the contrary, this Court’s Just Compensation

jurisprudence has “recognized * * * that no magic formula enables a court to judge, in every case, whether a

given government interference with property is a taking.” Id. at 31. But the decision below defies this rule

7

by creating exactly the kind of “blanket exclusionary

rule[ ]” that this Court has squarely found to be inappropriate for Just Compensation Clause analysis. Id.

at 37.

Second, the specific blanket exception adopted below has already been directly rejected by this Court’s

decisions. In cases that stretch back more than a century, this Court has consistently recognized that otherwise-valid exercises of the police power sometimes

require compensation. The opinion below disagrees,

arguing that any limits on the police power flow not

from the Just Compensation Clause but instead from

substantive limitations like the Due Process Clause.

App. 18. In other words, the opinion below recognizes

two categories of government action: (1) things the

government may constitutionally do, which require

no compensation, and (2) things the government is

constitutionally forbidden from doing, which therefore

require compensation. But this Court has repeatedly

recognized a third category of government action:

Things the government may permissibly do so long as

it provides just compensation.

In Pumpelly v. Green Bay & Mississippi Canal Co.,

for example, a property owner brought a suit—under

the state constitution, which was acknowledged to provide the same protection as the Fifth Amendment—

seeking just compensation for flood damage caused by

the construction of a state-authorized dam. 80 U.S. 166

(1871). The defendant argued “that there is no taking of the land * * * and that the damage is a consequential result of such use of a navigable stream as the

8

government had a right to for the improvement of its

navigation.” Id. at 177. This Court rejected any such

formal distinction:

It would be a very curious and unsatisfactory

result, if * * * it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public

it can destroy its value entirely, can inflict irreparable and permanent injury to any extent,

can, in effect, subject it to total destruction

without making any compensation, because,

in the narrowest sense of that word, it is not

taken for the public use. Such a construction

would pervert the constitutional provision

into a restriction upon the rights of the citizen, as those rights stood at the common law,

instead of the government, and make it an authority for invasion of private right under the

pretext of the public good, which had no warrant in the laws or practices of our ancestors.

Id. at 177–78.

Nor was Pumpelly an aberration. In United States

v. Russell, steamboat owners brought Fifth Amendment claims challenging the commandeering of their

vessels by various Union army officers during the Civil

War. 80 U.S. 623, 627 (1871). This Court expressly held

that in the circumstances the military had been justified in commandeering the boats, but noted that “it is

equally clear that the taking of such property under

such circumstances creates an obligation on the part of

9

the government to reimburse the owner to the full

value of the service.” 80 U.S. 623, 628–29 (1871).2

The rule of Russell, of course, is not that otherwise-valid exercises of government power will always

give rise to a claim for just compensation; it is simply

that (contrary to the opinion below) they can give rise

to one. National Board of YMCA v. United States,

395 U.S. 85 (1969), is instructive on this point. In that

case, U.S. troops occupied the YMCA’s buildings in the

course of suppressing a riot, and the YMCA sued for

compensation under the Just Compensation Clause for

the damage done during the temporary occupation of

its property. Id. at 86. The Court rejected the claim—

but not because riot suppression is an exercise of

the police power (of course it is).3 Instead, the Court

said that no compensation was due for two independent reasons. One was that the occupation was meant

2

In 1803, St. George Tucker wrote that the Just Compensation Clause “was probably intended to restrain the arbitrary and

oppressive mode of obtaining supplies for the army * * * as was

too frequently practiced during the revolutionary war, without

any compensation whatever.” 1 Blackstone’s Commentaries: With

Notes of Reference, to the Constitution and Laws, of the Federal

Government of the United States; and of the Commonwealth of

Virginia 305–06 (1803). It seems unlikely that the Framers would

have considered the “police power” a valid excuse for dispensing

with just compensation, when they specifically intended the

Clause to ensure compensation even for actions taken in support

of a desperate war for independence on our own soil.

3

Cf. Chicago v. Sturges, 222 U.S. 313, 322 (1911) (noting

State’s police-power obligation to “preserve social order and the

property of the citizen against the violence of a riot or mob”). If

that much were dispositive, one might reasonably expect the

Court to have said so.

10

to protect the YMCA, and no compensation is required

if the person whose property was taken is “the particular intended beneficiary of the government action” at

issue. Id. at 92. And the other was that the buildings

were occupied mid-riot: Even if the troops have not occupied the buildings, they would have remained inaccessible to the YMCA while rioters damaged them. Id.

at 92–93.

Concurring in the result, Justice Harlan offered a

slightly different test and would have held instead that

no compensation was due only because in the context

of the broader riot the troops should not reasonably

have expected greater harm to come to the building because of their occupation. Id. at 97–98 (Harlan, J., concurring in result only). Justice Black, joined by Justice

Douglas, dissented on factual grounds, arguing that

the troops’ occupation was not in fact meant to protect

the buildings but instead to use them as “a shelter and

fortress”—a use that required just compensation. Id.

at 99 (Black, J., dissenting). No Justice in YMCA suggested that the compensation question turned on

whether or not suppressing the riot was a valid exercise of the police power because that is not (and never

has been) the law.

And if that were the law, this Court’s jurisprudence would look wildly different. In Horne v. Department of Agriculture, for example, this Court held that

the government’s direct appropriation of a portion of a

farmer’s raisin crop was a compensable taking. 135

S. Ct. 2419, 2427–28 (2015). The regulation at issue in

that case was undeniably an exercise of the police

11

power. Cf. id. at 2428 (conceding that government could

prohibit the sale of raisins without effecting a taking).

And if officials at the Department of Agriculture had

chosen to enforce the requirement directly—if they

had simply traveled to the Hornes’ farm and taken the

raisins under color of law—that, too, would have been

an exercise of the police power. Under the holding below, that could not be a compensable taking—even

though, under the holdings of this Court, it is one.

In reaching a contrary holding, the panel opinion

below ignored these cases and suggested that it wrote

without the benefit of binding authority from this

Court, saying that this Court “has never expressly

invoked this distinction [between the police power

and the eminent domain power] in a case alleging a

physical taking[.]” App. 10.

But that statement is incorrect. Not only has the

Court held for over a century that exercises of the police power can give rise to the taking, but the Court has

also addressed this very distinction in the context of a

physical taking—and, in addressing it, rejected it. In

Loretto v. Teleprompter Manhattan CATV Corporation,

for example, this Court considered a Takings Clause

challenge to a New York statute that required landlords to allow TV companies to run cables on the outside of the landlords’ properties. 458 U.S. 419, 423–24

(1982). The New York Court of Appeals had determined

that this regulation was a valid exercise of the police

power, and this Court held that while there was

“no reason to question” that determination, it was

“a separate question * * * whether an otherwise valid

12

regulation so frustrates property rights that compensation must be paid.” Id. at 425.

As cases like Loretto and Russell illustrate, there

are two questions in these situations. On the one hand,

the Court asks whether a challenged action is something the government may do—whether an exercise of

the police power is consistent with the Due Process

Clause or other constitutional limitations. See Lingle

v. Chevron U.S.A., Inc., 544 U.S. 528, 542 (2005) (noting

that the due-process inquiry focuses on whether the

government’s actions are rational). But it also considers a separate question under the Just Compensation

Clause—one that focuses on the “magnitude or character of the burden a particular regulation imposes upon

private property rights.” Ibid. It asks, in other words,

whether the effect of that exercise of the police power

on a particular property owner “goes too far” and therefore requires compensation. Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922). The opinion below

holds that there is only one question: Compensation is

due if (and only if ) an exercise of the police power contravenes the Due Process Clause (or some other legal

provision); the Just Compensation Clause has no role

to play. App. 18.

This sweeping rule is not only contradicted by the

cases cited above; it is unsupported by the cases cited

in its favor below. The opinion below, for example,

draws support from Mugler v. Kansas, 123 U.S. 623

(1887), quoting that case for the proposition that when

the state is protecting public safety, it “ ‘is not, and, consistent[ ] with the existence and safety of organized

13

society, cannot be, burdened with the condition that the

state must compensate [affected property owners] for

pecuniary losses they may sustain’ in the process.”

App. 13–14 (quoting Mugler, 123 U.S. at 669). But the

quotation from Mugler is truncated: The Court’s actual

statement is that the state need not compensate property owners “for pecuniary losses they may sustain, by

reason of their not being permitted, by a noxious

use of their property, to inflict injury upon the

community.” Mugler, 123 U.S. at 669 (emphasis supplied).

In other words, Mugler does not speak of a general

exception from the Just Compensation Clause whenever the government invokes the police power. Instead,

the Court is expressly addressing “[t]he exercise of the

police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a

particular way.” Ibid. The panel opinion simply omits

the relevant words from Mugler and thereby transforms an anodyne statement of law (it is not a taking

when the government abates a nuisance or forbids certain harmful uses of property) into a sweeping exception from this Court’s ordinary doctrines.

This was error. The lower court’s doctrinal departure from this Court’s longstanding approach warrants

a grant of certiorari here for the same reason that certiorari was granted in Arkansas Game & Fish. There,

like here, the lower court adopted a new categorical

rule that a certain sort of government action could not

give rise to a claim under the Just Compensation

Clause. 568 U.S. at 30–31. There, as here, “[n]o decision

14

of this Court authorizes a blanket * * * exception to

[its] Takings Clause jurisprudence[.]” Id. at 34. And

here, like there, the Court should grant the petition,

“decline to create such an exception in this case,” and

remand for further proceedings. Ibid.

B. Lower courts are deeply divided on how the

Just Compensation Clause interacts with the

police power.

Although it is impossible to reconcile the decision

below with this Court’s precedents, the Tenth Circuit

is not alone in holding that the police power is a categorical exception to the Just Compensation Clause. At

least two other federal courts of appeals and three

state courts of last resort have held likewise, albeit

with some subtle differences in analysis. By contrast,

at least four other state courts of last resort have correctly recognized that there is no such categorical exception and that whether an exercise of the police

power requires compensation depends on a wide range

of facts and circumstances.4

Unfortunately, the most recent federal appellate

decisions have uniformly adopted the kind of categorical exception adopted below, which means federal

courts are rapidly trending toward a rule under which

4

Petitioners do not mean to suggest that all of these cases

on the “correct” side of the split have also analyzed the facts and

circumstances of each case correctly—or even in the same way.

Rather, those decisions stand together only insofar as they reject

a categorical Just Compensation exception.

15

nearly any intentional destruction of private property

by the government will receive no Just Compensation

Clause scrutiny at all. On the other side of the split are

longstanding state-court rulings making clear that no

such blanket exception exists. This second group of

cases does not present a uniform mode of analysis. Neither do all of these cases award compensation to property owners—indeed, most deny compensation after

engaging in a careful analysis of all the relevant facts.

But each engages in the sort of case-by-case analysis

commanded by this Court’s precedents, and this Court’s

intervention is warranted to ensure that federal circuits resume that sort of case-by-case doctrinal development as well.

1. Cases that hold that the police power is

categorically exempt from the Just Compensation Clause.

Federal Circuit. In AmeriSource Corp. v. United

States, the plaintiff was a pharmaceutical company

whose drugs were seized as evidence for use in a criminal case against a third party. 525 F.3d 1149 (Fed. Cir.

2008). The expiration date for the drugs passed, rendering them worthless, and they were never used in

the prosecution. The drug company had requested that

the government retain only a sample, so the rest could

be sold, but the government refused. In denying the

company’s Just Compensation claim, the Federal Circuit held that “[p]roperty seized and retained pursuant

to the police power is not taken for a ‘public use’ in the

context of the Takings Clause.” Id. at 1153.

16

The Federal Circuit’s decision also endorsed a

broad definition of the police power as encompassing

“the powers of government inherent in every sovereignty to the extent of its dominions.” Id. at 1153 (citing The License Cases, 46 U.S. 504, 584 (1847)). And

the limits of this power, the court explained, “are

largely imposed by the Due Process Clause,” rather

than by the Just Compensation Clause. Id. at 1154.

Seventh Circuit. In Jonson v. Manitowoc County,

the plaintiff was a landlord whose rental property was

damaged while the police were executing a search warrant. He sued for, inter alia, just compensation under

the Fifth Amendment. The Seventh Circuit dismissed

that claim in just three sentences:

[T]he Takings Clause does not apply when

property is retained or damaged as the result

of the government’s exercise of its authority

pursuant to some power other than the power

of eminent domain. See AmeriSource Corp. v.

United States, 525 F.3d 1149, 1154 (Fed. Cir.

2008) (citing Bennis v. Michigan, 516 U.S. 442,

452 (1996)). Here, the actions were taken under the state’s police power. The Takings

Claim is a non-starter.

635 F.3d 331, 336 (7th Cir. 2011). The Seventh Circuit

went on to express sympathy for the property owner,

noting that the result was “quite unfair,” and suggesting that he attempt to invoke state statutory remedies.

Ibid.

Washington State. In Eggleston v. Pierce County,

the police physically removed two walls of the plaintiff ’s

17

house for use as evidence, rendering the house uninhabitable. 64 P.3d 618, 621 (Wash. 2003). The walls

were never actually used as evidence, and it was undisputed that the owner of the house was innocent. Id.

at 621–22. The Washington Supreme Court held that

no compensation was due because the destruction was

pursuant to the police power: “[I]t is not a taking or

damaging for the public use, but to conserve the safety,

morals, health, and general welfare of the public.” Id.

at 623 (emphasis and citation omitted).5

Like the Seventh Circuit, the Washington Supreme Court recognized the unjustness of the result

and suggested that the plaintiff might pursue other

remedies:

The courts that have found takings have been

justifiably outraged by the destruction of real

property owned by third parties utterly unconnected with the alleged crime. While we

too feel the pull of the justness of the cause

* * * [t]he proper apportionment of the burdens and benefits of public life are best addressed to the legislature, absent a violation

5

Although the court acknowledged in a footnote that the police power can effect a taking when it goes “too far,” id. at 623 n. 6,

the court did not actually consider the impact on the property

owner as a relevant factor, focusing solely on whether the government was lawfully pursuing a legitimate objective. See id. at 627

(“When law enforcement exceeds its lawful powers, the injured

have a right to redress.”). And in a subsequent case, the court

cited Eggleston as establishing a broad rule that the police power

never causes a taking as a matter of federal law—a broad rule to

which it said Loretto was simply a narrow exception. See Brutsche

v. City of Kent, 193 P.3d 110, 121 (Wash. 2008).

18

of a right held by an individual seeking redress under the appropriate vehicle.

Id. at 626; see also id. at 627 (“We stress we do not examine the applicability of * * * any other cause of action that might be brought.”).

One of the two dissenting justices in Eggleston correctly pointed out the lack of historical support for a

police-power exception to the Just Compensation Clause,

arguing that the majority had simply “incant[ed] ‘police power’ as some sort of mystical excuse to cart away

part of a person’s house without paying for it.” Id. at

629 (Sanders, J., dissenting).

California. In a case involving $275,000 worth of

damage caused by police while apprehending a fugitive, the California Supreme Court held that “damages

resulting from a valid exercise of the state’s police

power are damnum absque injuria.” Customer Co. v.

City of Sacramento, 895 P.2d 900, 908 (Cal. 1995).

Three justices concurred but criticized the majority’s

analysis as not “coherent and consistent.” Id. at 917

(Kennard, J., concurring). Another justice dissented,

arguing (based in part on federal authorities) that the

state constitution required compensation. Id. at 924–

27 (Baxter, J., dissenting).

Iowa. In another case involving damage caused by

law enforcement while serving a search warrant, the

Iowa Supreme Court recognized that the police power

can, at least theoretically, effect a taking. Kelley v.

Story Cty. Sheriff, 611 N.W.2d 475, 480 (Iowa 2000).

The court’s analysis, however, simply asked whether

19

the law enforcement officers’ conduct was reasonable.

Concluding that it was, the court held that their action

“therefore does not amount to a taking.” Id. at 482.

This mode of analysis—like Washington’s—pays

lip service to the idea that the police power can effect

a taking, but in practice it (like the Tenth Circuit’s

opinion below) makes the Just Compensation Clause

coterminous with the Due Process Clause. Indeed, the

court even cited due process cases to support its holding. Id. at 480–81 (citing Walker v. Johnson County, 209

N.W.2d 137, 139 (Iowa 1973), and Loftus v. Department

of Agric., 232 N.W. 412, 420 (Iowa 1930)). But, as described above, that approach is exactly what this Court

has rejected. See supra at 12 (citing Lingle v. Chevron

U.S.A., Inc., 544 U.S. 528, 542 (2005)).

Although the damages in Kelley amounted to only

$1099.60, the dissenting justices accurately foretold

that “[t]omorrow, by a police incursion that precipitates escalating damages, the property loss could reach

a hundred times Kelley’s loss or more.” Id. at 485

(Snell, J., dissenting). That prediction has been born

out in the instant case and in others.

2. Cases recognizing that the police power is

not exempt from the Just Compensation

Clause.

By contrast, at least four other state courts of last

resort have correctly recognized that whether a particular government action is a legitimate exercise of the

police power is a distinct question from whether the

20

action causes a taking, thereby entitling the property

owner to just compensation under the Fifth Amendment.

Alaska. In a case involving the intentional destruction of timber to create a firebreak, the Alaska Supreme Court correctly recognized that whether a

government action is a legitimate exercise of the police

power has no bearing on whether it constitutes a taking for purposes of the Just Compensation Clause. To

the contrary, the court held that “[b]ecause the [fires]

were set in the exercise of the State’s police powers,

the damage they caused was for a public use for purposes of the Takings Clause.” Brewer v. Alaska, 341

P.3d 1107, 1112 (Alaska 2014).6

Kansas. The Kansas Supreme Court, in holding

that a property owner was entitled to compensation for

the loss of access to his land caused by a public works

project, also explicitly held that an exercise of the police power can cause a taking. See Garrett v. City of

Topeka, 916 P.2d 21, 30 (Kan. 1996) (“Where there is

an actual taking of property under the police power,

compensation is required.”). The court proceeded to

thoroughly analyze the facts and circumstances of the

particular case to determine the degree of interference

with private property rights. Id. at 908 (“A case-by-case

approach is used in determining whether the facts

and circumstances of a case show free and convenient

6

The court went on to hold that the government could avoid

liability if it could show on remand that its actions were justified

by the doctrine of necessity, a much narrower exception than the

police-power exception at issue in this case. Id. at 1118.

21

access or substantial interference with access or impose a burden to the use of the land.”).

New Hampshire. In Soucy v. New Hampshire, a

property owner argued that he was entitled to compensation because the government had ordered him not to

repair a fire damaged building so it could be used as

evidence in an arson prosecution. 506 A.2d 288, 289

(N.H. 1985). In an opinion by then-Justice Souter, the

court held that the “line between a non-compensable exercise of the police power and a compensable taking” depended on “balancing the respective interests of society

and property owners.” Id. at 290–92. In other words, the

court did not rely on any categorical exception for the

police power. Rather, it asked whether the exercise of

the police power went “too far” and effected a taking.

Wisconsin. In a regulatory takings case, the

Wisconsin Supreme Court recognized a distinction between the police power and the power of eminent domain, but held the division depends not on whether the

government is pursuing a legitimate objective, but rather on the “degree of damage to the property owner.”

Just v. Marinette Cty., 201 N.W.2d 761, 767 (Wis. 1972).7

*

7

*

*

In another case addressing damage caused by law enforcement offices, a New Jersey intermediate appellate court expressly

rejected the argument that the “police power may never be a taking.” Simmons v. Loose, 13 A.3d 366, 389 (N.J. Super. Ct. App.

Div. 2011). The court ultimately concluded that there was no taking on the particular facts, including “that the utility of the [property] was [not] substantially reduced” by the damage. Ibid.

22

This split of authority is dangerous, particularly

in view of the federal circuits’ increasing consensus

that the “police power” represents a categorical exception to the Just Compensation Clause. That view is

wrong in that it adopts exactly the sort of “magic formula” that this Court has rejected in its Just Compensation cases. Arkansas Game & Fish Comm’n v. United

States, 568 U.S. 23, 31 (2012). But it is also dangerous

in that it encourages unnecessary litigation over the

scope of the police power itself.

In Patty v. United States, for example, the Court of

Federal Claims considered a Fifth Amendment claim

brought by a property owner whose truck was used by

a DEA task force to execute a controlled drug delivery

during which the truck was “wrecked” in a hail of gunfire. 136 Fed. Cl. 211, 213 (2018). Faced with a property

owner whose property was clearly taken in any meaningful sense of that word, the Court of Federal Claims

took the only route doctrinally available to it and held

that the DEA operation was outside the scope of the

police power Id. at 215. To hold otherwise, the court

noted, would adopt a view of “the police power [that]

would swallow private property whole.” Ibid. The outcome

of Patty is correct: It is a taking when the government

needs to commandeer a vehicle for law-enforcement

purposes. But the case’s holding—that the DEA’s actions were outside the scope of the police power (and

thus, presumably, could have been enjoined)—would

have striking consequences if applied more broadly. Cf.

Kagel v. Brugger, 119 N.W.2d 394, 396–97 (Wis. 1963)

(collecting cases endorsing historical law-enforcement

23

power to commandeer vehicles for roadblocks). Decisions like Patty are the inevitable consequence of the

lower courts’ increasing erasure of the category of

things that the government may do (but for which it

owes compensation), and this Court’s intervention is

required to ensure that courts return to the Just Compensation analysis required by its precedents.

C. The Question Presented is important.

The Question Presented is of great national significance, for at least two reasons:

1. The “police power,” as defined by the Federal

Circuit, is extraordinarily broad, covering essentially

everything that is not a formal condemnation action.

See AmeriSource Corp. v. United States, 525 F.3d 1149,

1153 (Fed. Cir. 2008) (defining the police power as “the

powers of government inherent in every sovereignty to

the extent of its dominions”). If the police power is categorically exempt from the Just Compensation Clause,

then government has virtually unlimited latitude to

destroy private property. The Seventh and Tenth Circuits have uncritically adopted the Federal Circuit’s

approach, and the doctrine is now sitting around like a

loaded gun, ready for mischief.

This “police power” exception could be invoked

in essentially any inverse condemnation action, and

courts will increasingly be satisfied that they can

simply cite these three cases and dismiss the complaints. Indeed, if the decision below is correct, then it

is unclear what is left of inverse condemnation. This

24

idea must be put to rest so that lower courts can resume doing what this Court has instructed them to

do—analyze all the relevant facts and circumstances

to determine when a government action constitutes a

taking.

2. Although the police-power exception has the

potential to do mischief in a wide range of situations,

this question is also important because the specific

facts of this case are becoming increasingly common.

While it was once rare for law enforcement to use

the kind of destructive tactics employed by the Greenwood Village Police Department, that is no longer the

case. Journalists have exhaustively documented the

rise of military-inspired, SWAT tactics throughout the

United States. See generally, Radley Balko, Rise of the

Warrior Cop: The Militarization of America’s Police

Forces (2014). Between 1980 and 2005, the average

number of annual SWAT raids in the United States

increased from 3,000 to over 50,000. Id. at 237, 308.

Although many of these raids are for serving routine

warrants, even a “knock-and-announce” warrant only

requires a SWAT team to wait a few seconds after

knocking before breaking down a door, so property

damage is becoming the norm. See United States v.

Banks, 540 U.S. 31, 39 (2003).

Even in the active-shooter situations for which

SWAT teams were originally created, tactics are more

destructive now than they once were. When Los Angeles deployed the first SWAT teams in the country

in the 1960s, they were not equipped with the tanklike BearCat used by the Greenwood Village Police

25

Department to “open up holes” in Leo Lech’s house and

“take as much of the building as needed without making the roof fall in.” App. 26.

This case does not call upon the Court to decide

whether these developments in police tactics and

equipment are wise or just. But their increasing prevalence means that entirely innocent property owners

are increasingly being forced—often, as here, at random—to bear the cost of law enforcement activities.

See, e.g., West v. City of Caldwell, 931 F.3d 978 (9th Cir.

2019), petition for cert. pending, 19-899. These burdens

range from a splintered door jamb to an entirely demolished house.

To be sure, the fact that there is “no automatic exemption” from the Just Compensation Clause when

law enforcement destroys private property for the public good does not mean that such damage will always

be a per se taking. See Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 38 (2012). It only means

that courts will have to return to their historic practice

of “situation-specific factual inquiries.” Id. at 32. The

decision below is part of a growing trend of lower

courts’ wholesale refusal to engage in those inquiries

in cases involving law enforcement, and this Court’s

intervention is required to return lower courts’ focus to

the fact-bound analysis required in all Just Compensation cases.

---------------------------------♦---------------------------------

26

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

RACHEL B. MAXAM

LAW OFFICE OF

RACHEL B. MAXAM, PLLC

1543 Champa St., Ste. 400

Denver, CO 80202

(720) 526-2928

ROBERT J. MCNAMARA

JEFFREY H. REDFERN*

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

*Counsel of Record