EVAN GRAY—Imagine if, unbeknownst to you, your house became the site of a major police standoff, complete with explosions, SWAT teams, and flying bullets. Well, unfortunately for the Lech family, this is exactly what happened on June 3rd, 2015, when a robbery suspect, fleeing Walmart, entered the Lechs’ Colorado home and began firing a weapon at pursuing police officers, resulting in a standoff that ended in the complete destruction of the home. “For 19 hours, the suspect holed up in a bathroom as a SWAT team fired gas munition and 40-millimeter rounds through the windows, drove an armored vehicle through the doors, tossed flash-bang grenades inside and used explosives to blow out the walls,” reported the Washington Post. Eventually, the suspect was captured alive, but the home was so badly damaged it was condemned by the city.
Although the city of Greenwood Village offered to pay the Lechs $5,000 in temporary living expenses while they demolished and rebuilt their home, the city denied liability for the incident and did not provide any other compensation to the Lechs. It cost nearly $400,000 to rebuild their home and, as Mr. Lech stated, it “ruined [their] lives.” In an attempt to recover for the destruction of their home, the Lechs then sued the city of Greenwood Village, along with individual police officers, alleging a violation of the Takings Clause of the U.S. Constitution. The District Court, however, granted summary judgment, which was then affirmed by 10th U.S. Circuit Court of Appeals, to the city.
In a unanimous opinion, the Court of Appeals found that there was significant precedent supporting the notion that the destruction of the Lechs’ home was not a taking under the Fifth Amendment, but instead was a valid exercise of the state’s police power. Moreover, because the Supreme Court has previously held that the use of police power “is not, and. . . cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain,” the city was not liable for the destruction of the Lechs’ home.
However, while this decision has significant support from precedent and will likely not be granted certiorari by the Supreme Court, that does not mean the courts are operating on either a sound legal or substantive foundation.
Firstly, arguments have been made that the courts are misinterpreting the founders’ intent when applying the Taking Clause this way. For example, legal scholar D. Benjamin Barros has noted that “the historical record of the Just Compensation Clause suggests that compensation should be due when a government action has essentially the same impact on the property holder as physical expropriation—that is, compensation should be due if the government action renders property valueless.” Certainly, in a situation like this, the Lechs’ property was rendered valueless by the government’s actions and it would make sense that society as a whole would bear the cost of such government action.
Secondly, as taxpaying citizens, we pay for the services of law enforcement and emergency officials—it is not a pay-per-use system. As such, when private property is destroyed in the course of police action, everyone receives a benefit from the destruction: the efficient and effective apprehension of dangerous criminals. Considering this, property owners may be more willing to assist police if they know that they will not have to bear the whole burden any potential loss. Thus, it is illogical that the cost of the damage to the property would solely fall on the innocent third-party, but instead, the loss should fall on the entire community that benefits.
Unfortunately, for the Lechs, precedent is against them and it is unlikely that they will find much sympathy from the U.S. Supreme Court, meaning they will never recover any of the $400,000 spent rebuilding their home. And so, such a situation illuminates a potential problem with the modern Takings Clause, for the Lechs truly are an innocent party in this matter. By chance, their house became the site of a police standoff. The criminal did not contemplate what house he ran into nor did the police contemplate the massive destruction they were doing to the house. But as the maxim goes, “the loss lies where it falls,” and for the Lechs, such a maxim has never been truer.
