Amicus Curiae Brief — Leo Lech, et al., Petitioners v. Chief John A. Jackson, et al.

No. 19-1123

In the

Supreme Court of the United States

____________________

LEO LECH, et al.,

Petitioners,

v.

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

___________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

____________________

DANIEL T. WOISLAW

Pacific Legal Foundation

3100 Clarendon Blvd., Ste. 610

Arlington, VA 22201

Telephone: (610) 888-4293

dwoislaw@pacificlegal.org

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL

33410

Telephone: (561) 691-5000

mmiller@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

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

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

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

IDENTITY AND INTEREST

OF AMICUS CURIAE ................................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I. THE COURT BELOW FAILED TO

APPLY BINDING PRECEDENT

FROM THIS COURT.......................................... 4

A. This Court’s Jurisprudence Eschews

Categorical Bars Against Just

Compensation ............................................... 4

B. There Is No “Police Power”

Exception to the Fifth Amendment’s

Just Compensation Clause .......................... 8

II. WHETHER THE TAKING AND

DESTRUCTION OF INNOCENT PERSONS’

PROPERTY FOR THE PUBLIC PURPOSE OF

CRIME CONTROL IS A COMPENSABLE

TAKING IS AN IMPORTANT QUESTION

GIVEN THE PROLIFERATION OF MILITARY

EQUIPMENT AND TACTICS AMONG LOCAL

POLICE DEPARTMENTS ............................... 13

A. Federal Programs Have Placed

Billions of Dollars of Military-Grade

Equipment into the Hands of Local

Law Enforcement Authorities .................. 14

iii

B. Destructive Military Tactics and

Equipment Are Not Being Reserved

Only for Hostage-Takings, Armed

Suspects, and Terrorism........................... 16

C. The Costs of Law Enforcement

Tactics Do Not Fall Only

on the Guilty ............................................. 19

CONCLUSION.......................................................... 20

iv

TABLE OF AUTHORITIES

Page(s)

Cases

AmeriSource Corp. v. United States,

525 F.3d 1149 (Fed. Cir. 2008) .......................... 13

Arkansas Game & Fish Comm’n v. United

States,

568 U.S. 23 (2012) ..................................... passim

Armstrong v. United States,

364 U.S. 40 (1960) ......................................4-5, 20

Chicago, B. & Q. R. Co. v. City of Chicago,

166 U.S. 226 (1897) ........................................... 11

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ............................................. 2

Coffin v. United States,

156 U.S. 432 (1895) ........................................... 19

Customer Co. v. City of Sacramento,

895 P.2d 900 (Cal. 1995) ............................. 13, 19

Eggleston v. Pierce County,

64 P.3d 618 (Wash. 2003) .............................13-14

First English Evangelical Lutheran Church

v. County of Los Angeles,

482 U.S. 304 (1987) ............................................. 2

v

Johnson v. Maitowoc County,

635 F.3d 331 (7th Cir. 2011) ............................. 13

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ............................................. 2

Kelley v. Story County Sheriff,

611 N.W.2d 475 (Iowa 2000) ............................. 13

Kelo v. City of New London,

545 U.S. 469 (2005) ............................................. 5

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ................................... 1, 13

Koontz v. St. Johns River Water

Management District,

570 U.S. 595 (2013) ............................................. 1

Lech v. Jackson,

791 F. App’x 711 (10th Cir. 2019) ............. passim

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

544 U.S. 528 (2005) ............................................. 1

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) ......................................... 3, 6

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ..............................5-6, 9, 12

National Board of Young Men’s Christian

Associations v. United States,

395 U.S. 85 (1969) ................................................ 7

vi

New Orleans Gas-Light Co. v. Louisiana

Light & Heat Producing &

Manufacturing Co.,

115 U.S. 650 (1885) ....................................... 9, 11

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ......................................... 1, 9

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 1

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) ......................................... 6, 9

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ............................................. 9

Sackett v. Environmental Protection Agency,

566 U.S. 120 (2012) ............................................. 1

Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997) ............................................. 1

United States v. Jones,

109 U.S. 513 (1883) ............................................. 9

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943) ........................................... 11

Z.J. ex rel. Jones v. Kansas City Bd. of

Police Comm’rs,

931 F.3d 672 (8th Cir. 2019) ............................. 18

Constitution

U.S. Const. amend. V .........................................i, 2, 4

vii

amend. X .............................................................. 8

amend. XI............................................................. 8

amend. XIV ........................................................ 11

Rule of Court

Supreme Court Rule 37.2(a) ..................................... 1

Other Authorities

Armed and Dangerous: No-knock Raids,

Assault Weapons and Armoured Cars:

America’s Police Use Paramilitary

Tactics Too Often,

The Economist (Mar. 22, 2014),

https://www.economist.com/leaders/2014/

03/22/armed-and-dangerous ............................. 14

Balko, Radley, Rise of the Warrior Cop:

The Militarization of

America’s Police Forces (2013) ............................ 4

Cops or Soldiers? America’s Police Have

Become Too Militarised, The Economist

(Mar. 22, 2014),

https://www.economist.com/news/unitedstates/21599349-americas-police-havebecome-too-militarised-cops-or-soldiers ........... 14

The Debate in the State Conventions on the

Adoption of the Federal Constitution

(2nd ed., Jonathan Elliot, ed., 1907) ................. 10

viii

Delehanty, Casey, et al., Militarization and

police violence: The case of the 1033

program, Research and Politics (AprilJune 2017),

https://journals.sagepub.com/doi/10.1177

/2053168017712885 ........................................... 17

Edward Byrne Memorial State and Local

Law Enforcement Assistance Program,

Program Brief, Bureau of Justice

Assistance (2002),

https://www.ncjrs.gov/pdffiles1/

bja/195907.pdf ................................................... 15

French, Glenn, Sgt., Dynamic Entry versus

Deliberate Entry,

PoliceOne.com (Aug. 3, 2010),

https://www.policeone.com/swat/articles/

dynamic-entry-versus-deliberate-entrys86BB28VVWLfwJXW/ ..................................... 14

Hyde, Justin, Why do America’s police need

an armored tank?,

NBC News (Mar. 4, 2011),

http://www.nbcnews.com/id/41912754/ns/

technology_and_sciencetech_and_gadgets/t/why-do-americaspolice-need-armoredtank/#.XpCCcMhKiHt ....................................... 16

Lawson, Gary, and Siedman, Guy,

A Great Power of Attorney:

Understanding the Fiduciary

Constitution (Kansas Press 2017) ..................... 10

ix

Lenco BearCat Armoured Vehicles,

Homeland Security Technology,

https://www.homelandsecuritytechnology.com/.................................................. 16

Lind, Dara, Cops do 20,000 no-knock raids a

year. Civilians often pay the price when

they go wrong, Vox (May 15, 2015),

https://www.vox.com/2014/10/29/7083371

/swat-no-knock-raids-police-killedcivilians-dangerous-work-drugs........................ 19

Otis, James, Jr., The Rights of the British

Colonies Asserted and Proved,

1 The Founders Constitution

(Liberty Fund 1987) .......................................... 10

Peralta, Eyder, Arizona Sheriff Uses A Tank

And Steven Seagal To Arrest

Cockfighting Suspect,

NPR (Mar. 23, 2011),

https://www.npr.org/sections/thetwoway/2011/03/23/ 134803230/arizonasheriff-uses-a-tank-to-arrestcockfighting-suspect .......................................... 17

Rizer, A. & Hartman, J., How the War on

Terror Has Militarized the Police,

The Atlantic (Nov. 7, 2011),

https://www.theatlantic.com/national/arc

hive/2011/11/how-the-war-on-terror-hasmilitarized-the-police/248047 ........................... 17

x

Slack, Donovan, Even small localities got

big guns, Boston Globe (June 15, 2009),

http://archive.boston.com/news/

local/massachusetts/articles/2009/06/15/d

etails_emerge_on_distribution_of_milita

ry_weapons_in_mass/ ........................................ 15

Stelloh, Tim, Ex-Georgia Deputy Acquitted

After Flash Bang Grenade Hurts

Toddler, NBC News (Dec. 13, 2015),

https://www.nbcnews.com/news/usnews/ex-georgia-deputy-acquitted-afterflash-bang-grenade-hurts-toddlern479361 .............................................................. 18

Twohey, Megan, SWATS Under Fire,

National Journal (Jan. 1, 2000) ........................ 16

1

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2(a),

Pacific Legal Foundation submits this brief amicus

curiae in support of Petitioners Leo Lech, Alfonsia

Lech, and John Lech (collectively, Lech).1

Pacific Legal Foundation (PLF) was founded

more than 45 years ago and is widely recognized as

the largest and most experienced nonprofit legal

foundation of its kind. PLF has participated in

numerous cases before this Court both as counsel for

parties and as amicus curiae. PLF attorneys litigate

matters affecting the public interest at all levels of

state and federal courts and represent the views of

thousands of supporters nationwide who believe in

limited government and private property rights. PLF

attorneys participated as lead counsel in Knick v.

Township of Scott, 139 S. Ct. 2162 (2019); Koontz v.

St. Johns River Water Management District, 570 U.S.

595 (2013); Sackett v. Environmental Protection

Agency, 566 U.S. 120 (2012); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997); and Nollan v.

California Coastal Commission, 483 U.S. 825 (1987),

and participated as amicus curiae in Arkansas Game

& Fish Comm’n v. United States, 568 U.S. 23 (2012);

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

All parties have consented to the filing of this brief. Counsel of

record for all parties received notice at least 10 days prior to the

due date of Amici Curiae’s intention to file this brief. No counsel

for any party authored this brief in whole or in part and no

person or entity made a monetary contribution specifically for

the preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

1

2

and City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999). Because of its history and

experience with regard to issues affecting private

property, PLF believes that its perspective will aid

this Court in considering Lech’s petition.

SUMMARY OF ARGUMENT

Lech’s petition for a writ of certiorari raises an

important question concerning the protections

provided by the Just Compensation Clause of the Fifth

Amendment to the U.S. Constitution. Specifically, the

petition asks whether a police department’s seizure

and deliberate destruction of a private home in

pursuit of a trespassing fugitive entitles the

homeowner to just compensation for such a taking in

the public interest of crime control.

In Arkansas Game & Fish, 568 U.S. 23, this

Court rejected a categorical exemption from the Just

Compensation Clause for temporary floods, reasoning

instead that whether a taking occurs for purposes of

the Fifth Amendment is determined on a case-by-case

basis. Id. at 36 (“It is of course incumbent on courts to

weigh

carefully

the

relevant

factors

and

circumstances in each case, as instructed by our

decisions.”). It likewise expressed disfavor for

categorical exclusions in its decision of First English

Evangelical Lutheran Church v. County of Los

Angeles, where it held that temporary takings are not

categorically exempted from the constitutional

mandate of just compensation. 482 U.S. 304, 318

(1987). This case-by-case approach is a longstanding

and well-settled practice. See, e.g., Kaiser Aetna v.

United States, 444 U.S. 164, 175 (1979) (“[This Court]

has examined the ‘taking’ question by engaging in

essentially ad hoc, factual inquiries[.]”); see also

3

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 426 (1982) (“Ordinarily, the Court must

engage in ‘essentially ad hoc, factual inquiries.’”)

(quoting Penn Central Transp. Co. v. New York City,

438 U.S. 104, 124 (1978)). Instead, this Court has

instructed lower courts to consider factors in

determining whether a compensable taking has

occurred (1) the duration of physical or regulatory

interference with private property, (2) the degree of

foreseeability of or authorization for such

interference, and (3) the character of the land,

including

the

owner’s

investment-backed

expectations. Arkansas Game & Fish, 568 U.S. at 3839.

Notwithstanding Arkansas Game & Fish, First

English, and this Court’s long tradition of case-bycase analysis, the court below carved out a new

categorical exception from the Takings Clause for

state action falling under an amorphous “police

power” doctrine. See Lech v. Jackson, 791 F. App’x

711, 717 (10th Cir. 2019) (“[W]hen 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”). Carving out that

exception brought the lower court’s decision into

conflict with this Court’s precedents.

The Tenth Circuit’s decision is particularly

proper for review because of police departments’

increasing use of military equipment to carry out even

routine searches and seizures. Law enforcement

increasingly relies upon battering rams, flashbang

grenades, military assault rifles, tear gas, and

armored vehicles like the BearCat used by the

Greenwood Village police in the instant case, and not

4

surprisingly with that increased use comes a

corresponding increase in the destruction of private

property. See generally Radley Balko, Rise of the

Warrior Cop: The Militarization of America’s Police

Forces (2013) (Balko). Innocent victims of these

militarized devices in some parts of the country will

be deprived of just compensation for their losses

unless this Court reasserts that intentional

government action that occupies and destroys private

property for a public purpose triggers the Just

Compensation Clause. There is no “police power”

exception to the Fifth Amendment.

To deny certiorari here would permit this

unconstitutional exception to survive and inject

greater moral hazard into the decisions of law

enforcement. In considering whether to use more

destructive military weapons where less destructive

tactics would equally suffice, much of the disincentive

to ruin private property while enforcing the criminal

laws would vanish. Instead, in many instances, it may

be overbalanced by the desire of police departments to

use their new weaponry.

ARGUMENT

I

THE COURT BELOW FAILED TO APPLY

BINDING PRECEDENT FROM THIS COURT

A.

This Court’s Jurisprudence

Eschews Categorical Bars

Against Just Compensation

The Armstrong principle has long been the

guiding light of this Court’s Just Compensation

Clause jurisprudence: “It is axiomatic that the Fifth

Amendment’s just compensation provision is

5

‘designed to bar Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.’”

First English, 482 U.S. at 318-19 (quoting Armstrong

v. United States, 364 U.S. 40, 49 (1960)). Thus, the

central question presented to the court below was

whether the Lechs, as innocent property owners, were

forced to bear a disproportionate share of the cost in

the public undertaking of crime control. But the Tenth

Circuit Court of Appeals abdicated this responsibility

by passing on the question and instead disposing of

the controversy under an amorphous “police power”

exception. Lech v. Jackson, 791 F. App’x at 717.

The ruling below falls in direct conflict with this

Court’s Just Compensation Clause precedents, which,

following the Armstrong principle, eschew categorical

bars against compensation. While some questions,

such as whether a taking occurred for a “public use,”

restrain the police power to take property, see Kelo v.

City of New London, 545 U.S. 469 (2005) (interpreting

the bounds of “public use”), this Court has never

identified such a qualification to work as a shield for

the government against claims for compensation,

particularly when a physical invasion is involved.

If government “compel[s] the property owner to

suffer a physical ‘invasion’ of his property,’. . . no

matter how weighty the public purpose behind it,” this

Court has “required compensation.” Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

The decision below therefore upset this Court’s

controlling precedents when it held that the

destruction of a private home was not a compensable

taking because it was executed under the “police

power” rather than “the power of eminent domain.”

6

Lech, 791 F. App’x at 716-17. Throughout its history,

this Court has had several opportunities to erect such

an exemption for “police power,” and it has declined to

do so. Unlike the multifactor test for regulatory

takings, see Penn Central, 438 U.S. at 127-28, which

the court below also ignored, see Lech, 791 F. App’x at

716 (treating the finding of “police power” as

dispositive of the takings question), physical invasions

are takings per se. See Lucas, 505 U.S. at 1015;

Loretto, 458 U.S. at 426-34.

Whether state action is a valid exercise of the

police power is the beginning of the takings inquiry,

not its end, as this Court recognized in Loretto, 458

U.S. 419, which included substantive analysis of the

extent to which government-sponsored action

constituted a physical invasion and occupation of

property. Id. at 426-34. This Court even found that the

statute permitting installation of telecommunications

cables on private property by corporations without

landowner consent was “within the State’s police

power.” Id. at 425. But this Court had “no reason to

question that determination. It is a separate question

[…] whether an otherwise valid regulation so

frustrates property rights that compensation must be

paid.” Id. (citing Penn Central, 438 U.S. at 127-128).

Indeed, “as the Court has frequently noted, [the

Just Compensation Clause] does not prohibit the

taking of private property, but instead places a

condition on the exercise of that power.” First English,

482 U.S. at 314.

For example, Arkansas Game & Fish set out

that a physical occupation, even of temporary

duration, which destroys property is cognizable under

the Just Compensation Clause. 568 U.S. at 38. This

7

Court there rejected a categorical bar against

compensation in such a case. Id. at 31-32. Instead,

whether state action effects a compensable taking is a

product of factors such as (1) the duration of physical

or regulatory interference with private property, (2)

the degree of foreseeability of or authorization for such

interference, and (3) the character of the land,

including

the

owner’s

investment-backed

expectations. Id. at 38-39. The test was not “eminent

domain” or “police power”, but whether the effect of the

state action rose to the level of a taking.

National Board of Young Men’s Christian

Associations v. United States provides another

example of the proper framework for a takings

analysis. There, this Court considered whether the

damage inflicted on a private building occupied by

Army troops during a riot constituted a compensable

taking. 395 U.S. 85 (1969). No compensation was

required because the Army did not cause any damage

to the building; the riot caused the damage. Id. at 8992. If an exercise of “the police power” was exempted

from qualifying as a compensable taking, National

Board would never have reached the question of who

caused the damage to the building. The Court instead,

would simply have held that deployment of the troops

was within the police power and therefore exempt

from the Fifth Amendment’s Just Compensation

Clause. Instead, the Court considered who caused the

damage, and recognized that private actors caused the

damage. Here, the police caused the damage to the

Lech home.

The police physically punched large holes in the

Lechs’ home and caused substantial damage in the

process. Lech, 791 F. App’x at 715-17. Whether the

8

conduct at issue constituted a taking therefore turns

upon the character and extent of the government’s

conduct with reference to its interference with the

Lechs’ property, not whether the “police” or “eminent

domain” label is a closer descriptor for driving

authorization. That this Court recognizes a cause of

action for inverse condemnation alone should have

instructed the court below that “police power” is not a

government escape valve for disposing of Just

Compensation claims. Rather, it is a starting point. By

ignoring this Court’s Just Compensation Clause

precedents outlining the factors for consideration in

various types of takings, the ruling below brought the

Tenth Circuit into conflict with this Court’s binding

authority.

B.

There Is No “Police Power”

Exception to the Fifth Amendment’s

Just Compensation Clause

There is no question that broad police powers

are reserved to the States through the federal

structure of the United States Constitution. See U.S.

Const. amends. X, XI.

That there is a power, sometimes called

the police power, which has never been

surrendered by the states, in virtue of

which they may, within certain limits,

control

everything

within

their

respective territories, and upon the

proper exercise of which, under some

circumstances, may depend the public

health, the public morals, or the public

safety, is conceded in all the cases.

9

New Orleans Gas-Light Co. v. Louisiana Light & Heat

Producing & Manufacturing Co., 115 U.S. 650, 661

(1885) (citing Gibbons v. Ogden, 22 U.S. 1, 78 (1824))

(emphasis added). The power of eminent domain is in

fact rightly considered a “police power,” despite the

Tenth Circuit’s attempt to distinguish the two

concepts.

The power to take private property for

public uses, generally termed the right

of eminent domain, belongs to every

independent government. It is an

incident of sovereignty, and […] requires

no constitutional recognition. The

provision found in the fifth amendment

to the federal constitution, and in the

constitutions of the several states, for

just compensation for the property

taken, is merely a limitation upon the

use of the power.

United States v. Jones, 109 U.S. 513, 518 (1883)

(internal citation omitted). Most of this Court’s

jurisprudence over the last century has in fact been

devoted to determining when the police power effects

a taking. See, e.g., Arkansas Game & Fish, 568 U.S. at

38-39 (when temporary invasions work takings);

Lucas, 505 U.S. at 1015 (when physical invasions

work takings); Nollan, 483 U.S. at 836-37 (when

unconstitutional conditions work takings); Penn

Central, 438 U.S. at 127-28 (when regulations work

takings); Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 394 (1922) (statute prohibiting subsurface

mining effected a taking). But the court below applied

none of those tests, instead casting the physical

invasion aside because it was not an exercise of one

10

particular police power—eminent domain. See Lech,

791 F. App’x at 715-17.

No one disputes that the government acted

under its police power when it destroyed the Lechs’

home. Yet, the police power, like any power granted to

the government, is only delegated to government by

the people (through the Constitution) insofar as its

exercise adheres to the qualifications contained in

that document, as future Supreme Court Justice

James Iredell explained during the debates preceding

the adoption of the Constitution: “[The Constitution]

may be considered a great power of attorney, under

which no power can be exercised but what is expressly

given.” Gary Lawson and Guy Seidman, A Great

Power of Attorney: Understanding the Fiduciary

Constitution 3 (Kansas Press 2017) (quoting The

Debate in the State Conventions on the Adoption of the

Federal Constitution 148-49 (2nd ed., Jonathan Elliot,

ed., 1907); see also James Otis, Jr., The Rights of the

British Colonies Asserted and Proved, 1 The Founders’

Constitution 52 (Liberty Fund 1987) (explaining that

delegation of authority to government is in the

manner of “trust” and subject to certain imposed

conditions). As noted above, the Constitution defends

the fundamental right to receive compensation when

the state takes private property:

As thus defined, we may, not improperly,

refer to that [police] power the authority

of the state to create educational and

charitable institutions, and provide for

the establishment, maintenance, and

control of public high ways, turnpike

roads, canals, wharves, ferries, and

telegraph lines, and the draining of

11

swamps. Definitions of the police power

must, however, be taken subject to the

condition that the state cannot, in its

exercise, for any purpose whatever,

encroach upon the powers of the general

government, or rights granted or secured

by the supreme law of the land.

New Orleans Gas-Light Co., 115 U.S. at 661 (emphasis

added)

(alteration

in

original).

The

Fifth

Amendment’s Just Compensation Clause, as a

component of the United States Constitution, is “the

supreme law of the land,” applying to the states

through the Due Process Clause of the Fourteenth

Amendment, Chicago, B. & Q. R. Co. v. City of

Chicago, 166 U.S. 226, 236 (1897). Indeed,

The very purpose of a Bill of Rights was

to withdraw certain subjects from the

vicissitudes of political controversy, to

place them beyond the reach of

majorities and officials and to establish

them as legal principles to be applied by

the courts. One’s right to life, liberty, and

property, to free speech, a free press,

freedom of worship and assembly, and

other fundamental rights may not be

submitted to vote; they depend on the

outcome of no elections.

West Virginia State Board of Education v. Barnette,

319 U.S. 624, 638 (1943). And this Court should

likewise shield them from destructive policies,

procedures, and actions adopted and carried out by

executive agencies, including police departments. To

remove constitutional accountability for the

destruction of private property by officers in the field

12

would provide far poorer protection to Americans’

rights than subjecting the same destruction of

property to a vote of the majority.

If, instead, the uses of private property

were

subject

to

unbridled,

uncompensated qualification under the

police power, “the natural tendency of

human nature [would be] to extend the

qualification more and more until at last

private property disappear[ed].” […]

These considerations gave birth in that

case to the oft-cited maxim that, “while

property may be regulated to a certain

extent, if regulation goes too far it will be

recognized as a taking.”

Lucas, 505 U.S. at 1014 (quoting Pennsylvania Coal,

260 U.S. at 394 (internal citations omitted) (alteration

in original, except ellipses).

The question is not whether government

conduct is legitimate, or even constitutional on its

face. Such questions are often litigated in the context

of suits alleging violations of due process, equal

protection, free speech, and other rights that impose

actual substantive limits on government action. The

“basic understanding of the [Just Compensation

Clause]”, however, “makes clear that it is designed not

to limit the governmental interference with property

rights per se, but rather to secure compensation in the

event of otherwise proper interference amounting to a

taking.” First English, 482 U.S. at 315 (emphasis in

original).

“Because of ‘the self-executing character’ of the

Takings Clause ‘with respect to compensation,’ a

13

property owner has a constitutional claim for just

compensation at the time of the taking.” Knick, 139 S.

Ct. at 2171 (quoting First English, 482 U.S. at 315.

Thus, the Tenth Circuit’s distinction between police

power and eminent domain, see Lech, 791 F. App’x at

715-17, has no legal justification in this Court’s

precedents. The Tenth Circuit’s distinction is an

unconstitutional aberration, and one that other courts

have likewise adopted. See Johnson v. Maitowoc

County, 635 F.3d 331, 336 (7th Cir. 2011);

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

(Fed. Cir. 2008); Customer Co. v. City of Sacramento,

895 P.2d 900, 908 (Cal. 1995); Kelley v. Story County

Sheriff, 611 N.W.2d 475, 480 (Iowa 2000); Eggleston v.

Pierce County, 64 P.3d 618, 621 (Wash. 2003).

II

WHETHER THE TAKING AND

DESTRUCTION OF INNOCENT PERSONS’

PROPERTY FOR THE PUBLIC PURPOSE OF

CRIME CONTROL IS A COMPENSABLE

TAKING IS AN IMPORTANT QUESTION

GIVEN THE PROLIFERATION OF MILITARY

EQUIPMENT AND TACTICS AMONG

LOCAL POLICE DEPARTMENTS

The invasion and destruction of private homes,

businesses, and other property under states’ police

powers, and particularly in the furtherance of

criminal law enforcement, presents an important

federal question with respect to the compensation

mandated by the Fifth Amendment’s Just

Compensation Clause. Because of the increased

availability and use of military-grade equipment to

conduct even routine enforcement against citizens

suspected of nonviolent crimes, the destruction of

14

private property from these actions—which

sometimes fall disproportionately on innocent third

persons such as the Lechs—presents a serious

problem for the Court’s consideration.

A.

Federal Programs Have Placed

Billions of Dollars of Military-Grade

Equipment into the Hands of Local

Law Enforcement Authorities

Federal grant programs in existence since 1988

have placed increasingly more military-grade

equipment into the hands of local police departments

and the tactics of those departments have likewise

changed during the same period. See Balko at 211-12

(discussing the use of military tactics and equipment

to conduct routine patrols and serve warrants on lowlevel offenders); see also id. at xi-xii (“Police

departments across the country now sport armored

personnel carriers […], helicopters, tanks, and

Humvees. They carry military-grade weapons.”). They

have increasingly relied on so-called “dynamic-entry”,

which entails the use of SWAT teams, battering rams,

assault rifles, armored personnel carriers, and flashbang grenades. Id. at 194-95; Cops or Soldiers?

America’s Police Have Become Too Militarised, The

Economist (Mar. 22, 2014);2 Sgt. Glenn French,

Dynamic

Entry

versus

Deliberate

Entry,

PoliceOne.com (Aug. 3, 2010).3 Whether or not these

destructive tactics and devices are ill-advised, their

use has proliferated over recent years. See Balko at

307-08; Armed and Dangerous: No-knock Raids,

2 https://www.economist.com/news/united-states/21599349-

americas-police-have-become-too-militarised-cops-or-soldiers.

https://www.policeone.com/swat/articles/dynamic-entry-versusdeliberate-entry-s86BB28VVWLfwJXW/.

3

15

Assault Weapons and Armoured Cars: America’s

Police Use Paramilitary Tactics Too Often, The

Economist (Mar. 22, 2014).4 Therefore, it is

increasingly important for this Court to answer the

extent to which compensation is owed to private

homeowners whose property is destroyed in the course

of criminal law enforcement, which can include busted

doorframes, collapsed walls, and even conflagration.

The transfer of military equipment to local

police departments began in the late 1980s with the

Byrne grant program, which sent billions of dollars to

police departments over the ensuing 25 years. Balko

at 167 (citing Edward Byrne Memorial State and

Local Law Enforcement Assistance Program, Program

Brief, Bureau of Justice Assistance (2002).5 Such

transfers accelerated throughout the 1990s and 2000s

through the controversial “1033 Program” (from the

National Defense Authorization Act of 1997, which

sent surplus military equipment to local law

enforcement agencies) and Department of Homeland

Security grants. Balko at 209-10. Between the years

1997 and 1999 alone, the Pentagon sent $727 million

of gear to local and state law enforcement authorities,

including UH-60 Blackhawk and UH-1 Huey

helicopters, M-16 assault rifles, and grenade

launchers. Id. (citing Megan Twohey, SWATS Under

Fire, National Journal (Jan. 1, 2000)). Even many

small towns have benefitted from the program by

acquiring M-79 grenade launchers. See Donovan

4 https://www.economist.com/leaders/2014/03/22/armed-and-

dangerous.

5 https://www.ncjrs.gov/pdffiles1/bja/195907.pdf.

16

Slack, Even small localities got big guns, Boston Globe

(June 15, 2009).6

The BearCat used by the Greenwood Village

police in the case at hand has in particular become a

favorite tool of local law enforcement departments

across the country. See Justin Hyde, Why do America’s

police need an armored tank?, NBC News (Mar. 4,

2011) (“America’s most in-demand police vehicle

[BearCat] is a 10-officer 16,000-pound armored tank

that takes bullets like Superman and drives 80

mph.”).7 It is an armored personnel carrier designed

for law enforcement and military use, to which a long

battering ram and machine gun may be attached—in

common terms, it is a tank. Lenco BearCat Armoured

Vehicles, Homeland Security Technology.8

B.

Destructive Military Tactics and

Equipment Are Not Being Reserved

Only for Hostage-Takings, Armed

Suspects, and Terrorism

If police departments were sitting on militarygrade equipment for the rare hostage crisis,

barricaded person, school shooting, or terrorist attack,

this Court would not face such a pressing need to

answer the Just Compensation Clause question

presented by Lech’s petition. However, the ready

availability of military equipment has led to its

6 http://archive.boston.com/news/

local/massachusetts/articles/2009/06/15/details_emerge_on_dist

ribution_of_military_weapons_in_mass/.

7 http://www.nbcnews.com/id/41912754/ns/technology_and_scie

nce-tech_and_gadgets/t/why-do-americas-police-need-armoredtank/#.XpCCcMhKiHt.

8 https://www.homelandsecurity-technology.com/ projects/lencobearcat-armoured-vehicles-ballistic-us/.

17

increased use. Cf. Casey Delehanty, et al.,

Militarization and police violence: The case of the 1033

program, Research and Politics (April-June 2017)9

(finding increased transfers of military equipment to

law enforcement agencies resulted in a significant

increase in the use of deadly force); A. Rizer & J.

Hartman, How the War on Terror Has Militarized the

Police, The Atlantic (Nov. 7, 2011)10 (“[P]olice

departments have employed their newly acquired

military weaponry not only to combat terrorism but

also for everyday patrolling.”).

And the use of military equipment has not been

limited to armed-and-dangerous-suspect scenarios.

Instead, this equipment has increasingly been used to

execute search and arrest warrants for nonviolent

offenses, such as drug possession, enforcement of

regulatory offenses, and other low-stakes conduct.

Balko at 284-89; see also id. at 332 (“[D]omestic police

officers are driving tanks and armored personnel

carriers on American streets, breaking into homes and

killing dogs over pot.”) (emphasis in original). When

action film star Steven Seagal, deputized by Arizona

Sheriff Joe Arpaio, drove an armored tank through a

suspect’s wall and into his living room, he was serving

a warrant for cockfighting, not storming a terrorist

compound. Eyder Peralta, Arizona Sheriff Uses A

Tank And Steven Seagal To Arrest Cockfighting

Suspect, NPR (Mar. 23, 2011).11 What our Founding

Fathers would think of a B-movie action star using the

9 https://journals.sagepub.com/doi/10.1177/2053168017712885.

10 https://www.theatlantic.com/national/archive/2011/11/how-

the-war-on-terror-has-militarized-the-police/248047/.

11 https://www.npr.org/sections/thetwo-way/2011/03/23/

134803230/arizona-sheriff-uses-a-tank-to-arrest-cockfightingsuspect.

18

police power to destroy private property is perhaps a

question this Court has never previously considered,

but the answer should be self-evident.

It appears that for the foreseeable future, the

deployment of military-grade equipment to enforce

local laws is here to stay, as is the damage caused by

them. Destructive flashbang grenades in particular

have caused substantial losses and injuries. The

United States Court of Appeals for the Eighth Circuit

heard a case last year involving a flashbang grenade

that exploded next to a two-year-old child during a

SWAT raid. See Z.J. ex rel. Jones v. Kansas City Bd.

of Police Comm’rs, 931 F.3d 672 (8th Cir. 2019). A 19month-old infant was likewise critically injured by a

flashbang grenade that landed in his crib in 2014. Tim

Stelloh, Ex-Georgia Deputy Acquitted After Flash

Bang Grenade Hurts Toddler, NBC News (Dec. 13,

2015).12

Before the Court waves off these damages as if

they were the “cost of committing the crime” (don’t do

the crime if you can’t do the time), it should be

remembered that the Lechs—like the two-year-old

child in Z.J. and the 19-month-old infant in Georgia,

who were both victims of local law enforcement

grenades—did nothing wrong. The Lechs’ home was

invaded twice. First by an armed criminal and then

again by a battering ram and explosives. And in the

case of homeowners who themselves are suspected of

criminal offenses when their doors burst forth in the

middle of the night at the business end of a SWAT

battering ram, those people are not convicted

12 https://www.nbcnews.com/news/us-news/ex-georgia-deputy-

acquitted-after-flash-bang-grenade-hurts-toddler-n479361.

19

criminals, either. They are presumed innocent. Coffin

v. United States, 156 U.S. 432 (1895).

C.

The Costs of Law Enforcement

Tactics Do Not Fall Only on the Guilty

While there is a public purpose and benefit to

enforcement of the criminal laws, the costs and

externalities it sometimes imposes on individuals can

be disproportionately burdensome. Such is the case

for those who suffer wrong-door raids,13 fires caused

by

flashbang

grenades,

storeowners

whose

merchandise is destroyed by tear gas, see Customer

Co., 895 P.2d 900 (en banc), or the Lechs, whose house

had several large holes punched in it by police

explosives and an armored BearCat vehicle. See Lech,

791 F. App’x at 713.

At bottom, the Lech petition asks whether the

Just Compensation Clause mandates payment to

innocent third persons whose property is taken and

destroyed by the government to further the public

purpose of criminal law enforcement. After all, “It is

axiomatic that the Fifth Amendment’s just

compensation provision is ‘designed to bar

Government from forcing some people alone to bear

public burdens which, in all fairness and justice,

13 There are over 20,000 no-knock raids every year across the

country. Dara Lind, Cops do 20,000 no-knock raids a year.

Civilians often pay the price when they go wrong, Vox (May 15,

2015), https://www.vox.com/2014/10/29/7083371/swat-no-knockraids-police-killed-civilians-dangerous-work-drugs. In New York

City during the late 1990s, wrong-door SWAT raids became so

common that “the NYPD circulated a memo among the city’s

police officers instructing them on how to contact locksmiths and

door repair services should they break into the wrong home.”

Balko at 265.

20

should be borne by the public as a whole.’” First

English, 482 U.S. at 318-19 (quoting Armstrong, 364

U.S. at 49). Given the proliferation of military

equipment across police departments around the

country and the destruction often wreaked by its use,

whether the Armstrong principle applies to police

conduct is a question of great importance to police

departments and private property owners alike.

CONCLUSION

The Tenth Circuit’s carve-out of a “police

power” exception brings its ruling below into conflict

with this Court’s Just Compensation Clause

jurisprudence, which requires consideration of the

character of the government act and the extent to

which it interferes with property. Additionally,

whether police conduct may be categorically exempted

from the Fifth Amendment’s Just Compensation

Clause presents a question of great national

importance, given the rise in police departments’ use

of destructive military tactics and equipment. The

Court should grant the petition.

DATED: April 2020.

Respectfully submitted,

DANIEL T. WOISLAW

Pacific Legal Foundation

3100 Clarendon Blvd., Ste. 610

Arlington, VA 22201

Telephone: (610) 888-4293

dwoislaw@pacificlegal.org

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL

33410

Telephone: (561) 691-5000

mmiller@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation