Property Rights

Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation

The ruling has considerable backing from precedent. But it is nonetheless based on a deeply flawed doctrine.

|The Volokh Conspiracy |

The Lech house, after it was destroyed by police in the process of apprehending a shoplifter. Greenwood Village, Colorado.

Earlier this week, the US Court of Appeals for the Tenth Circuit ruled that the Takings Clause of the Fifth Amendment does not require the government to compensate an innocent man for the destruction of his house during a police operation:

When they were finished, it looked as though the Greenwood Village, Colo., police had blasted rockets through the house.

Projectiles were still lodged in the walls. Glass and wooden paneling crumbled on the ground below the gaping holes, and inside, the family's belongings and furniture appeared thrashed in a heap of insulation and drywall….

But now it was just a neighborhood crime scene, the suburban home where an armed Walmart shoplifting suspect randomly barricaded himself after fleeing the store on a June afternoon in 2015. 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.

The suspect was captured alive, but the home was utterly destroyed, eventually condemned by the City of Greenwood Village.

 

That left Leo Lech's son, John Lech — who lived there with his girlfriend and her 9-year-old son — without a home. The city refused to compensate the Lech family for their losses but offered $5,000 in temporary rental assistance and for the insurance deductible.

Now, after the Leches sued, a federal appeals court has decided what else the city owes the Lech family for destroying their house more than four years ago: nothing.

The Takings Clause of the Fifth Amendment requires the government to pay "just compensation" to property owners any time their land or other property is "taken" by the state. That includes many situations where the government destroys or damages the property in question, rather than appropriates it for its own use. For example, in 2013, the Supreme Court unanimously  held that a taking can occur as a result of the government deliberately flooding land. As far back as 1872, the Court ruled that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." It seems pretty obvious that the Lech home was "effectually destroy[ed]" by the grenades and other "material" that the Greenwood Village police fired at it.

Why then, did the court rule that no taking had occurred, thereby denying the Lech family any right to compensation? Because the destruction of the house occurred in the course of a law enforcement operation intended to promote "the safety of the public":

[A]s the [Supreme] Court explained in Mugler, when the state acts to preserve the "safety of the public," the state "is not, and, consistent[] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain" in the process….

[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. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property….

The court is right to point out that this distinction between  the "police power" and eminent domain has been adopted in many of previous takings decisions immunizing law enforcement agents from liability. The main relatively new aspect of this case is applying the distinction to the physical invasion or destruction of property, as well as to "regulatory takings" where the government merely restricts the owner's ability to use his or her land. But the rule still makes no sense, and should be done away with.

The distinction between "police power" and "eminent domain"—with only the latter leading to a taking—is a false dichotomy. In many situations, courts have ruled that a taking has occurred even if the government did not try to use eminent domain—its authority to formally condemn private property for public use. That includes numerous cases involving both regulatory takings and physical invasions.

The fact that the "police power" may have been involved does not normally immunize the government from takings liability. As the Lech decision notes, the police power extends to government actions "for the protection of public health, safety, and welfare." Modern jurisprudence defines these concepts very broadly. Yet, in many  contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety.

Cases where the government does go through the formal process of eminent domain often also involve the protection of health or safety. For example, the condemnation of property to build a road can increase health and safety if the new road is safer than the old, and thereby reduces the rate of traffic accidents. Yet, the government could not use that fact to seize the property and build on it without paying compensation.

Even if the government has a good reason to seize or destroy private property, the Takings Clause requires payment of compensation. As the Supreme Court famously stated in Armstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was 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." The history and original meaning of the Takings Clause also supports the notion that exercises of the "police power" can be takings.

Outside the context of law-enforcement operations, the fact that the government was trying to promote public safety does not create blanket immunity from having to compensate innocent owners whose property is taken or destroyed in the process. There is no good reason to exempt law-enforcement operations from takings liability of the same kind that applies to other government actions that might enhance public safety.

Indeed, as the Supreme Court recognized in the 2015 Horne case, the Takings Clause was inspired in the first place in part by revulsion at both British and American forces' seizure of property during the colonial era and the Revolutionary War. Many of these British actions were, of course, undertaken for the purpose of enforcing British law against recalcitrant colonists.

One possible distinction between police operations and other government actions is that the former may require quick decisions in order to ensure the capture of suspects. Thus, it might be unnecessarily burdensome to require police officers to consider potential takings liability at such moment. But the need for rapid decision-making is by no means a universal trait of police actions that damage or destroy private property. As Radley Balko shows in his important book, The Rise of the Warrior Cop,  law enforcement operations using destructive military-style tactics are actually often planned in advance. Even when quick decision-making is needed, line officers do not have to weigh takings issues on the spot. Such matters could be considered in advance by their superiors in formulating general tactical guidelines for their subordinates.

If the use of various destructive tactics pays large dividends for public safety, then the government can continue using them, secure in the knowledge that the compensation paid was well worth the price. And it is only proper that the costs be borne by the general public  whose safety these operations protect, not by innocent owners who had the misfortune of having  their property destroyed because it was in the wrong place at the wrong time.

If, on the other hand, authorities find that they routinely end up paying compensation that far exceeds any plausible benefit arising from the use of such aggressive tactics, then they would be well-advised to issue stricter guidelines for the use of force by their officers. Perhaps they shouldn't seize and destroy as much property as they currently do.

In this way, Takings Clause liability not only promotes fairness for innocent property owners, but also can help increase the efficiency of law enforcement. The government will have an incentive to prevent them from undertaking destructive operations that harm the public more than they protect it.

The Supreme Court would do well to overrule this case and make clear that the Takings Clause protects innocent owners whose property is destroyed during the course of law enforcement operations. Unfortunately, I am far from optimistic that will actually happen.

In commenting on this case, Clark Neily of the Cato Institute points out that "With an honorable and ethical gov[ernment], the constitutional question never comes up because they [would] just compensate the owner as a matter of common decency." But, as Clark also notes, when it comes to government policy, honor, ethics, and common decency are often in short supply. Thomas Jefferson  put it well: "in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution." Though Jefferson didn't always live up to this principle himself, it is valid all the same. The chains of the Takings Clause should bind law enforcement  no less than other agents of the state.

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  1. Agreed, the 10th Circus was wrong – let the public bear the costs of promoting the public safety.

    1. Takings by way of regulation which wipe out value, well, if The People think it such a necessary thing, then The People can pay for it.

      It seems a stretch to think fighting a mini battle against a serious, emergency danger falls into that category, in spite of surface similarities. It’s more akin to acts of war.

      Had the invading thief destroyed the property directly, sucks to be the homeowner. This damage is properly lain at the feet of the thief, just as accidental deaths in apprehension.

      So the correct solution seems to be not to over-stretch the 5th but rather to point one’s finger skyward and say, “There outta be a law!”

      1. The police over-reacted. Use of force is supposed to be proportionate.

      2. You might be able to make an argument that the thief should be responsible for the damage he did or that he could have reasonably anticipated would be done as a consequence of his actions. In no way is even the thief responsible for this grotesque overreaction on the part of the police.

        1. I doubt that anyone could “reasonably” anticipate an unreasonable use of disproportionate force. The Police could simply have set up a cordon, turned of the water, power and cable TV then waited until the thief and burglar gave himself up. He was alone, the only harm he could do was to himself or the police, if they were careless.

          If the thief were responsible it seems likely he was also judgment proof.

        2. Even in a situation where the force was reasonable, my default rule would be the government, as the deep pocket and cheapest cost avoider, should pay, but allow the government to recoup the cost from the thief in restitution if the thief has money or ever comes into money.

          1. I’m closer to a split.

            In cases where they are acting to preserve the safety of actual people, the rights of property should give way. But in cases where they aren’t acting (directly) to preserve the safety of actual people, the rights of property owners to not have their property damaged by public agents should be preserved. I don’t want police to be weighing the cost of saving my life, in the event that they get put in a position to have to choose.

  2. Am I wrong in thinking it would a radical innovation, quite foreign to the Founder, to make damage from a police search a “taking”? I thought it was very old law that, for example, the government could knock down your house if necessary to stop a fire from spreading.

    1. I think it’s quite reasonable in many circumstances. In this case, the thief would technically be responsible for all charges since it’s due to his actions.

      The reason that I think that this is an exception is that the actions they took were clearly excessive and unreasonable. One man with one pistol who was not engaged in an active firefight does not justify dozens of explosives and other such highly destructive means. In fact, it seems that they acted with reckless disregard of the collateral damage and heedless to the actual measure of the threat they were facing. There are valid arguments that the thief might have surrendered much earlier if not for the fact that he was scared the lunatics who had him under siege would murder him.

      To use your analogy. Yes, the fire department can knock down your house to make a firebreak. However, firefighters cannot level an entire city block in response to a kitchen fire.

      1. The real problem is that there are too many cops who like doing this. They simply find it fun.

      2. I don’t think it’s a question of whether the police did anything *wrong* – at least it should be irrelevant from the takings perspective.

        Was it necessary to destroy your house in order to take down a criminal? OK – this was presumably beneficial to the public, taking the perp off the street, so why shouldn’t the public as a whole pay for the associated costs?

        I’m sure there are borderline situations and I don’t know about the firebreak thing, although I’ll just speculate and and hypothesize that fighting fires is comparable to fighting a war, more than it’s comparable to domestic law enforcement.

        1. From reading the court case, it appears it was necessary.

          1. If it was necessary for public safety, then the public should bear the cost.

            If it was unnecessary, then the police should bear the cost, which we all know just means shift it to the public.

      3. “The reason that I think that this is an exception is that the actions they took were clearly excessive and unreasonable.”

        Yup. If only there were some mechanism we could use to make the government weigh the cost against the benefit when doing something like this.

        1. Had they done things differently and he gotten away or killed someone, people would be raging how dare they consider the property one iota instead of catching him.

    2. There still has to be harm. If your home was going to be destroyed by fire then them knocking it down so it can’t spread didn’t really harm you.

    3. quite foreign to the Founders
      I think it would be equally foreign to the Founders that the police should have gas munitions, 40-millimeter rounds, armored vehicles, flash-bang grenades and explosives.

      1. Actually, police departments as we understand the term were themselves unknown to the founders, as they didn’t exist yet. Hard to imagine that could be true, but it is.

    4. Yes, to government can knock down your house to prevent a fire from spreading. In the US, the government is supposed to pay you back for the incremental damage they caused when doing so.

      The reason almost no one prevails in those suits is that it’s not too hard to show the incremental damage was nil. That is, your house was going to be destroyed regardless – if not by the government, then by the fire. That logic is not the case here.

  3. There isn’t a justification for the police action, nor the court’s ruling.

    Plenty of barricaded suspects have been apprehended without destroying someone’s home to do it. They didn’t just damage the property, they literally destroyed it and rendered it uninhabitable.

    Yet another reason I don’t support the police.

    1. And plenty of barricaded suspects have ended in situations where multiple lives were lost.

      1. there was no exigency that required such a violent police response. Buy some donuts and get the negotiator on site. Just because the police now have the firepower of a marine platoon does not justify its use.

        1. There was a negotiator on site. For 5 hours. And multiple rounds fired at the police outside the house.

          Read the court case.

          1. If it was necessary for public safety, then the public should pay.

  4. I’d already worked my mind around the rhetorical aspects of this case, so I’m glad this write-up of the legal aspects that agrees with my reasoning. If destruction of private property serves a public interest, then the associated costs are a public expense. It doesn’t matter if it’s necessary.

    1. Why wouldn’t the government be on th hook then, for damage the thief does directly? After all, they trapped him there, and, say, had he sawn a hole in the back wall like a comedy.

      1. Uh… because they didn’t do that?

        I don’t think you are accountable for the damage if you turn a guy down for a date and he gets angry and punches a hole in the wall either.

        1. Cyto,
          I think what Krayt was saying is that if you agree that damage caused in the apprehension of a criminal suspect is a public expense, then homeowners *should* be receiving compensation.

          Right now, there seems to be a huge DISincentive to help out the cops in some cases.
          Cop: “Sir, we’ve trapped a rapist in the house next to you. And he’s taken his victim hostage. May we use your house as a command post?
          Homeowner: ‘No, sorry. I’ll be responsible for any damage you happen to cause in my house, so you’ll have to go pound sand. You’re welcome to use the public street as a command post, though. Sorry again…but I just can’t afford the risk of losing my life savings to be a good human being.’

          1. Absolutely that is the incentive structure they have set up.

            In fact, if cases like this were more common, attempts to find fleeing felons on people’s property might be met with defensive fire from the homeowner.

          2. LOL – You must be new here.

            “Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.’”

            At a few minutes before noon, at least five defendant officers “arrayed themselves in front of plaintiff Anthony Mitchell’s house and prepared to execute their plan,” the complaint states.

            It continues: “The officers banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence.

            “Surprised and perturbed, plaintiff Anthony Mitchell immediately called his mother (plaintiff Linda Mitchell) on the phone, exclaiming to her that the police were beating on his front door.

            “Seconds later, officers, including Officer Rockwell, smashed open plaintiff Anthony Mitchell’s front door with a metal ram as plaintiff stood in his living room.

            “As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor.

            “Fearing for his life, plaintiff Anthony Mitchell dropped his phone and prostrated himself onto the floor of his living room, covering his face and hands.

            “Addressing plaintiff as ‘asshole’, officers, including Officer Snyder, shouted conflicting orders at Anthony Mitchell, commanding him to both shut off his phone, which was on the floor in front of his head, and simultaneously commanding him to ‘crawl’ toward the officers.
            “Confused and terrified, plaintiff Anthony Mitchell remained curled on the floor of his living room, with his hands over his face, and made no movement.

            “Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain.” (Parentheses in complaint.)

            Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.

  5. I don’t even understand the need to invoke a “taking” to get to US Constitutional protections.

    If the city sends out a crew to work on a water line and they back their truck into the side of your house, they are not immune from paying for the damages. And you don’t have to invoke the takings clause to get paid – it is a simple tort, isn’t it?

    Why is this any different. They had legal justification to be there. They were doing their duty (albeit in an arguably horrible way). So nobody is getting charged with a crime.

    But they also caused damage to this man’s property. It seems absolutely straightforward. The only twist would be if they then tried to assign all of the liability to the dude they were chasing. But it seems that would be a secondary suit, brought by the government to recoup their costs.

    So where does this magical “we don’t have to pay for the damages” power come from? Is the government on the hook if a police car sideswipes a bunch of parked cars during a pursuit? Or is that just tough titties too?

    1. Because tort law can be amended by ordinary legislation, for example to give the government all sorts of immunities. The takings clause is in the Constitution…

    2. In New York, yes. Emergency vehicles are immune from any damages caused while responding. Also ridiculous.

      1. Makes no sense. I understand immunizing the operators from all criminal liability for things like speeding, etc. Even for manslaughter if you hit someone.

        But you drive a fire truck through the neighbor’s garage while setting up to fight a fire? Yeah, I don’t see how you aren’t responsible for that damage. That’s just crazy.

        1. Agreed. Any benefit that supposedly inures to society should have the cost borne by society.

    3. The sovereign is immune to lawsuit.
      In the US, some of this immunity is waived, via the Tort Claims Act (for the federal government) and by little Tort Claims acts (for the states). In those statutes, the legislature spells out exactly which claims against the sovereign may proceed, because immunity is waived, and which claims may not proceed, because immunity is NOT waived.
      It is NOT correct to say “a tort occurred, so naturally the government can be sued just like any other tortfeasor.

  6. Now do this again for a scenario where the house that’s being destroyed belongs to the alleged criminal. (With and without them being ultimately convicted.) Why would that be different?

    1. They are putting their own property at risk. If it isn’t your property, you don’t have a right to put it at risk of anything.

      Now, in this particular case they’d probably still have a “reasonable and necessary force” argument that should be heard. I can’t imagine that 1 guy with a handgun and no hostages would rise to “destroy the building with a tank” level of “reasonable force”.

      1. Note that I said “alleged”. If an innocent person gets their house trashed during a search, they didn’t put anything at risk.

        If a person who is later found guilty gets their house trashed, they were still entitled to the presumption of innocence at the time when their house was destroyed.

        1. Yeah, searches are another thing too. I’ve always marveled at this – police can absolutely destroy your car, cutting tires, slashing seats open, even rendering it undriveable…. all in the name of looking for something. And they don’t bear any responsibility.

          I’ve seen them “search” a car as a simple punitive matter – actually “screwing with someone” is a more accurate label. I had a friend who refused to consent to a search of his car… so they waited around for a dog to show up and “alert”. Then they took his car apart. Pulled everything out…. spare tire, all the crap in the back, the liner in the trunk, the back seat, everything in the glove compartment (which they broke)….. all of it. They just tossed it all on the side of the road. Finding nothing, they left him there with a car that couldn’t be put right without getting help and tools. At least they didn’t slash open his seats and tires.

          He filed a complaint…. to no avail.

    2. I think you could make principled distinctions either between enforcement actions taken against the property or owner and those that are not, or between lawful and unlawful uses of the property. One of the cited precedents (Bachmann v. United States, 134 Fed. Cl. 694 (2017)) takes the second path, saying

      Historically, the Supreme Court of the United States has drawn a distinction on the one hand between the exercise of the police power to enforce the law to remove or restrict nuisances, blights, and other unlawful use of property and, on the other hand the government “taking property for public use.” […] This distinction flows from the principle that owners are not entitled to unlimited uses of their property. Unlawful uses or nuisances are not protected.

      , but then in a parallel to forfeiture cases expands the principle to unlawful uses without the owner’s knowledge or consent:

      Nor does the innocence of the property owner convert what is otherwise the proper, non-compensable exercise of the police power into a Fifth Amendment taking, even when that property is subject to forfeiture.

    3. I would certainly hope that the distinction between guilt and innocence still gets some recognition in the law.

      1. Meh. There are some cases where guilt or innocence aren’t relevant. We don’t declare unreasonable searches OK just because the cops actually found something.
        If the cops get a warrant to search someone because they have a tip he’s carrying cocaine, and the search turns up no cocaine but a bunch of meth, we don’t let him go because, after all, he’s innocent of what he was originally suspected of.

  7. I think this hypothetical might help explain the reason for current doctrine.

    Suppose the intruder had taken the owners hostage and threatened to kill them. Under Professor Somin’s approach, if the police rescued the owners they might destroy property and thereby incur losses. But if they let the intruder kill the owner, they would incur no liability. Any damage Or loss of life would be the intruder’s fault, not theirs.

    The purpose of liability law is to incentivize behavior. Should the law incentivize police to do nothing by imposing liability on them if they act act but not imposing any liability if they don’t act?

    1. No. They should incentivize the police by telling them, “Don’t worry about causing damage, as long as it’s reasonably related to dealing with an emergency. We, the city/county, will assume the costs for fixing and such damage that you do in the performance of your job.”

      So, you are chasing a suspect and you damage an innocent person’s car? The govt will cover that. You are drunk on duty and you damage someone’s car while you are driving back to the police station? You’re on the hook for everything.

      1. That sounds so perfectly reasonable that I bet most people assume that it is representative of how it actually works.

      2. Yes – it’s not the police themselves on the hook for the damages, it’s the taxpayers. And when have you ever heard of a police officer incentivized against bad behavior on the grounds that it may cost the taxpayers a lawsuit?

        But I think Clark Neily in the article nails it perfectly – “”With an honorable and ethical gov[ernment], the constitutional question never comes up because they [would] just compensate the owner as a matter of common decency.”

        1. If they didn’t have their union protections such that bad choices actually led to their termination, they might.

      3. I don’t think this changes things. Public fiscs aren’t limitless, and large damage awards have consequences for small towns.

        So here’s an additional hypothetical. Rich person comes to small, poor town in expensive car. Car is stolen. If police attempt to recover it, they might damage the car, and the damage might be a large fraction of the total police budget and require laying people off to pay it. If they simply let the thief go and do nothing, the town doesn’t have to pay and they are sure to keep their jobs.

        Would such incentives be in the public interest?

        1. Interesting hypothetical.

      4. “They should incentivize the police by telling them, ‘Don’t worry about causing damage, as long as it’s reasonably related to dealing with an emergency. We, the city/county, will assume the costs for fixing and such damage that you do in the performance of your job.'”

        The problem with this approach doesn’t show up right away… it shows up later, when they start to get second-guessed about what “reasonable” and “emergency” mean. And they will be, by whoever has to budget for expenses, because that person or people would rather spend the money for some other priority. You can already see this dynamic in play with eminent domain. Don’t worry, they say, you’ll get fair market value for your property. But if “fair market value” turns out to be a lower number, we have more money left over to spend on other things, such as raises for the people who calculate what “fair market value” is.

  8. I have to say that, if this happened to me, and I didn’t ultimately get compensated, in due time I’d cease to be an innocent man.

    Though I would try to avoid being caught.

    But, “but offered $5,000 in temporary rental assistance and for the insurance deductible.” Would homeowner’s insurance actually pay off in a circumstance like this?

    If so, the guy has been “made whole” at least as much as in a regular takings case, where inconvenience and psychic costs aren’t compensated either.

    If not, the offer was just a slap in the face, and I’m back to the conclusion that he should, carefully and with a good alibi, wreak some proportionate act of destruction against the city.

    1. Just as a side note: To the extent the government’s courts provide no real recourse against the government, individuals are in a state of nature with respect to the government, and are morally entitled to take their own vengeance when wronged. Though doing so may not be prudent.

      1. You wouldn’t be upset at the armed man who invaded your home, threatened you, and evicted you?

        1. Of course I would. I’d also be upset with the police who destroyed my house to get at him, leaving me homeless.

          1. And if it was a hostage rescue, and the police blew down a wall in your house to safely rescue you? Would you then turn around and be angry at them?

            And if your own life is that important to you, is the policeman’s life not as valuable?

            Just saying perhaps the anger is misplaced.

            1. But it wasn’t a hostage rescue. That’s precisely the point, they didn’t have to go to these lengths.

              1. So, a hostage’s life is more important than the police officer’s? That seems to be the justification you’re making.

                If you’re willing to break down a wall to minimize the risk of death to a hostage, shouldn’t the same risk-minimization be in place for a police officer attempting to resolve the situation?

                1. Police officers are paid to take risks. It’s part of their pay structure, both directly and in secondary terms such as disability and retirement.

                  We want to incentivize the police to take the path less destructive of other people’s property, when reasonable. Such as, say, taking easily reversible steps like turning off the water to the house and waiting outside.

                  Compare two options:

                  1) Wait the suspect out.
                  Con: Expensive to the city, because they’re paying the cops to stay outside the house instead of whatever other duties they might have fulfilled elsewhere.
                  Pro: Does not destroy taxpayer’s house.

                  2) Render the house permanently uninhabitable to get the suspect out.
                  Pro: Does not require any overtime.
                  Con: Renders taxpayer homeless.

                  See what’s happening there? By smashing the house NOW instead of waiting the suspect out, the city transfers the cost to the homeowner, to achieve the city’s goal.

                  Now, maybe if the choice is to wait the guy out, they decide that the time is better spent elsewhere, pursuing active crimes, perhaps even preventing some. That’s a decision that comes from the city bearing all the costs directly, and being unable to shift any costs to anyone else.

        2. I wouldn’t be upset enough to be okay with the police demolishing my home to capture the armed man. In my opinion, being okay with that would be like cutting off my nose to spite my face.

    2. Yup. I think back to your previous posts that people only follow the rules because they trust that the legal system will provide justice. When it’s patently obvious that some are more equal than others, they won’t. Society only works when the vast majority of people believe in it.

    3. Surprisingly, this sort of thing almost never happens.

      Even in the case of people who are wrongfully convicted by corrupt prosecutors and sent to death row.

      My years of research conducted by watching Hollywood’s interpretation of those scenarios is apparently misleading.

      1. Well, because of prudential considerations, generally: The government just has an absurd advantage in terms of how much resources it can bring to bear, and will generally always escalate until it prevails, without any consideration of cost effectiveness, because the government that can be crossed stops being a government. It ALWAYS has to win.

        That’s why, even though you have the legal right to self defense against police who are acting with excessive violence, confirmed in multiple court cases, it’s almost never worth doing, because the you have to survive long enough to reach court for that right to do you any good.

        1. “because the government that can be crossed stops being a government. It ALWAYS has to win.”

          The Mexican government losing to the cartels a few weeks ago is a good example.

    4. The homeowner’s insurance actually did pay off in this circumstance. (Unfortunately, the home was insured for its original value, not replacement value, so the homeowner was not “made whole” by several hundred thousand dollars. But that’s a side issue.)

      The existence of homeowner’s insurance, however, makes no difference because insurance carrier gains a subrogation right for the damages cause to the house by another. Whether the suit gets filed by the homeowner or the carrier is irrelevant to the question of the police department’s liability for their overreaction.

  9. So anytime a person feels aggrieved from some govt action/decision, then it’s straight to vigilantism.

    You forget to take your meds this morning?

    1. See my note above. The real problem with vigilantism is that it is redundant to a presumably more objective system of justice. It’s not inherently wrong, it’s only contingently wrong for that reason.

      But there isn’t actually an objective system of justice available much of the time when you’re wronged by the government. So, back to the rules of the state of nature, vigilantism becomes a reasonable fallback.

      1. And the real problem with your approach is that you assume the right to decide whether you’ve been treated equitably by the courts.

        You need a better standard than that.

        1. That’s kind of inevitable, isn’t it, unless you take the position that you have to let the government do as it pleases without exception, no matter how unreasonable it gets.

          Short of that, everybody is in favor of the right to decide whether you’ve been treated equitably, and just disagrees about the threshold for acting on it.

          1. You have a right to feel mistreated. But your right to engage in vigilantism is a lot more constrained.

            First, you have recourse to the courts and the political system. You can also resort to publicity – a demonstration, a petition, civil disobedience even. If those fail to satisfy you you might reflect as to whether your complaint is actually reasonable, since your case has not met with the needed sympathy. Of course, I doubt that you in particular will ever reflect on that, but you should.

            Then, I would say, you have to conclude that the system that harmed you, and provided no recourse, is inherently unjust, or whether this was just an unfortunate result of a system which, like all human institutions, is not perfect. I’m confident you think any government, unlike a warlord, is inherently unjust, but that’s simply fanaticism.

            Don’t be in such a hurry to grab your gun.

      2. “But there isn’t actually an objective system of justice available much of the time when you’re wronged by the government. So, back to the rules of the state of nature, vigilantism becomes a reasonable fallback.”

        When you rise up against the government, you allow them to put you down for lawlessness.

    2. ape,
      I don’t think Brett was *really* suggesting this. But, from a psychological standpoint, it is an extremely common thought-process. (99% of the people who have these revenge fantasies do not actually act them out.)

      20 years ago, at the library where my mom worked, someone would throw bricks and rocks through the windows. Sometimes one or twice a year. Sometimes years apart. This went on and on. Finally, the city agreed to install a security camera, and a year later, caught the guy on film. Turned out that it was a guy who had *really* disagreed with a moving violation he had received–by then–5 years earlier. He wanted to smash the windows in the cops’ cars or in that judge’s car. But he (correctly, I am sure) assumed that he’d quickly be caught doing the vandalism on law enforcement. So, he picked the city property where he was confident he’d get away with it. According to my mom, his total cost (in his mind) for the ticket was about $2,000 for the ticket, lawyer’s fees, increased insurance, etc. So, his goal was to smash a window 20 times, as he had calculated a cost to the city of $100 per window.

      My mom was there when the cops stopped by the library and arrested him while he was quietly reading. He was overjoyed at being able to loudly explain his grievance and seemed quite happy to my mom.

      So, yes. I totally get the concept of justifiable anger and the desire for vengeance…even if I’m in the “Too scared of being caught to ever take the risk” camp.

      1. “I don’t think Brett was *really* suggesting this.”

        He was kind of. With a huge caveat that it’s generally imprudent, because in the end you can’t win. The government always has more resources and will escalate as far as necessary to win.

        1. But you can make it difficult and painful for an oppressor. Do I think I could win if a concerted and evil government tried to take my guns? No. But I think I could kill at least 10 of them in the process.

          1. We’ll miss your sunny presence.

    3. Why not? I also would have supported black victims of crime taking action against their aggressors in the past when juries acquitted obviously guilty people.

  10. Take: to get into one’s hands or into one’s possession, power, or control
    Destroy: to ruin the structure, organic existence, or condition of

    Technically correct, but oh so morally wrong.

  11. We’ll argue the counter-point here.

    What you don’t want to do is dis-incentivize the police from making law enforcement actions that may save lives and mitigate risks. And by instituting a takings clause for items damaged in police actions, that is what you end up doing.

    Remember, cities, towns and the public do not have “infinite money.” Money lost from a takings clause (and the lawsuits) can end up coming out of the police budget. And a police officer may think “I can stop that expensive stolen car with a roadblock and spike strips. But if I do, the department may lose $50,000, and I can’t send my daughter to college this year. So…maybe just let the car go?”.

    Moreover, takings clause like this redirect the takings from the person really responsible (the criminal in this case) to the people trying to solve the criminal’s actions. Which is another large problem, the redirecting of responsibility.

    In the above court case, the truly liable person was the armed criminal who seized the house, and forced the family out, essentially “taking” the entire house and property. That is who should be sued. The police assisted in recovering the property from the theft. But the police are responsible for any damages in the recovery? Let’s address this in other situations.

    1. Thief grabs a diamond necklace from a woman. Police officer tackles thief. In the tackling process, the necklace is damaged, requiring repairs. Woman sues police for those repairs to necklace. Kosher?

    2. Thief steals very expensive car, drives at high speeds down busy streets. Police stop car using methods that damage it. Police can be sued for those damages?

    1. I think you are missing the economic argument.

      It plainly has value to the community for the police to damage property, both in the case in the OP and in your second example. So why shouldn’t the community bear the cost?

      Now, if the cost is greater than the benefit then maybe the police should have acted differently, but that’s another matter.

      My point is that the cost is there. You can’t make it disappear by refusing to compensate the homeowner. All you do is impose it on him rather than the community. That doesn’t seem equitable to me.

      1. “Why shouldn’t the community bear the cost?”

        Because of the disincentivization of police action during emergency actions, where there isn’t time for complete contract negotiations. And because the benefit is variable, and risk-based. And because of the redirection of fault.

        Perhaps the owner of the house should instead have negotiated a contract with the police for the removal of the armed criminal from their house. A nice complete contract, where the owner agreed to indemnify the police from damages to the house during the action.

        Or if the owner didn’t agree to this, perhaps the owner would be liable for any additional costs due to a non-damaging approach to free the house from the felon, up to additional costs due to the death or injury of any of the police officers. In return, the owner would get their house back, free from the criminal, but might have a large bill due to paying for the police’s injuries.

        1. Nah. Let’s just let the city shift the costs onto the homeowner. As long as I’m not the homeowner, I come out ahead that way.

    2. You’re also missing the limitation on takings cases that talk about incremental damage. The government is not liable for the value of all damage they do, only the damage they do above and beyond what would have occurred without their intervention. See the comments above about firebreaks.

      To your scenario, the police damage a car while capturing the thief. From the owner’s point of view, the reasonable outcomes were to lose the car entirely or to get back a damaged car. There was a taking but the incremental value of that taking was zero. The same logic applies to your necklace example.

      1. As opposed to an example where thief runs off with necklace, officer tackles thief and smashes him through a plate glass storefront window and into a display of expensive ceramic figurines.

        Should the shop owner have to simply eat the cost? If you had run through that storefront with your car, you’d have to pay, even if you were not doing anything wrong at the time.

        1. If you drive through a storefront, you’re doing something wrong at the time. It may not be intentional, but it’s certainly wrong to the people standing there.

    3. By causing the community to bear the cost, we insure the police act in a lawful and appropriate manner. That to me is much more important than the economic issues. Police causing wanton destruction of those they just don’t like is unacceptable.

      1. If someone is in danger, I want the priority of the police to be removing the danger (best) or removing the person from danger (second-best). I don’t want them running a spreadsheet in their heads while they decide if it’s more cost-effective to save a life than to let them die.
        “Well, we had a clear view and could have shot the hostage-taker through the window, and saved all 23 hostages, but then we would’ve had to pay to replace the window, and those big store windows are expensive. Under the circumstances, we consider the 3 hostages we eventually managed to rescue to be a win”.

  12. In assessing whether the City’s behavior was reasonable, was this covered by homeowner’s insurance? If the City’s payment for the insurance deductible plus the insurance covered anything, then the homeowner is whole.

    People have argued that it’s the government, not the police officers individually, who should be liable. But if it’s the insurance company, not the homeowner, who is the one actually collecting, why is it not reasonable and ethical government to reimburse an insurance company to cover a risk they were paid premiums to insure? The insurance company would be getting a double payment, getting the benefit of premiums priced to cover a risk they don’t actually have to pay out on.

    Why shouldn’t the insurance address this?

    1. The existence of insurance has no bearing on whether the City’s behavior was reasonable.

      First to facts – from another article, yes this was covered by homeowner’s insurance. Unfortunately, the homeowner was only insured for the original value of the house, not replacement value, so no he was not made whole.

      The reason none of that has any bearing on the case is that the insurance company’s contract explicitly gives them the right to pursue those responsible for a claim even if they already paid the claim. That’s the entire principle behind subrogation. And the concept of subrogation is baked into the actuarial calculations of premium for risks. (Auto insurance rates are so much higher in ‘no fault’ states precisely because they can’t do that there.) So no, the insurance carrier is not “getting a double payment” if the government is held to account for the excessive damage they cause.

      1. Right, Rossami.

        To which I would add that the insurance issue is a red herring. The company is merely a stand-in for the homeowner. It should no more be made to bear the cost than the homeowner should.

    2. “In assessing whether the City’s behavior was reasonable, was this covered by homeowner’s insurance? If the City’s payment for the insurance deductible plus the insurance covered anything, then the homeowner is whole.”

      But the insurance company isn’t.

  13. “With an honorable and ethical gov[ernment], the constitutional question never comes up because they [would] just compensate the owner as a matter of common decency.”

    This is so true. The American people long for an honorable and ethical government.

    1. And yet they keep electing the same variety of scoundrels.

      1. Getting the honorable and ethical to run for office turns out to be a bit of a challenge. We don’t treat them very well.

      2. But everyone on the ballot is all the same variety of scoundrel.

        The honorable and ethical don’t want to have anything to do with politics. If they were interested in politics, they wouldn’t be honorable or ethical.

        Politics: From Poly, meaning many, and tick a blood sucking parasite.

  14. “And it is only proper that the costs be borne by the general public whose safety these operations protect, not by innocent owners who had the misfortune of having their property destroyed because it was in the wrong place at the wrong time.”

    That’s the crux of the issue. If current law does not support that, then the law should be changed.

    Could we have a publicly financed insurance policy to pay out in cases where the public benefits but a few individuals are damaged? This police action is one such case. The case of shipping manufacturing overseas could be another. The public benefits from lower prices, but a handful of laid off workers suffers.

    The more populous this country becomes the more the tyranny of the majority. Any minority too small to matter in election politics (such as the couple in this case) are given no consideration.

    The very idea of things like fire insurance is that the vast majority of policy holders never need a payout. Why not the insurance approach for this problem?

  15. Would a state banning an industry, like vaping, constitute a taking as well? Because I would love it if the public bore the cost of that debacle.

  16. So, discard the Constitutional argument and just claim Trespass to Chattel torts under the states’ Little Tort Claims acts.

  17. There is a crucial point that Mr. Somin and most comments here seem to miss. There is another party to this event!!

    Isn’t the suspect in this case at least PARTIALLY responsible for what happened, not just police?? He was shooting at police, after all.

    Although I greatly sympathize with the homeowner, I can see the reasoning here. Let’s think this through if the court set this as a precedent. It would mean that if we ever fought a war in the United States, the government would be on the hook for paying to rebuild everyone’s property that was damaged in the fighting, which would most likely be impossible.

    On top of that, this isn’t a great test case, because the homeowner was compensated over $300k for his house, which is above average nationwide, according to Zillow.

    1. Again, that ignores the proportionality. Destroying a house to get one relatively petty criminal is not proportional. Just like it wouldn’t be proportional to nuke an entire neighborhood because one insurgent is hiding there.

    2. The nationwide average home value is of zero relevance to the issue of whether or not this homeowner was justly compensated for the destruction of this house.

  18. There’s an interesting analogy here to gun control rules. Liberals always call for “common sense restrictions” like private sale background checks. But they always balk at the cost being eaten by the government, because the purpose is to inconvenience and burden law abiding people. However, in the instance where the governments have borne the cost, like Maryland’s ballistic fingerprinting law, they’ve repealed them when they haven’t proven effective.

    When society has to bear the cost of its actions or regulations in the pursuit of public safety, it is more discerning as to what should be pursued.

  19. It seems to me we have two issues.

    One, the cops blew away this poor guy’s house in pursuit of a dangerous, and armed assailant.

    Two, the homeowner was underinsured.

    The final result – home destruction – is pretty terrible. But what exactly are the police supposed to do, considering the man was barricaded and armed? Talk nicely and hope for the best? Look, I don’t like the result, but I don’t see where the cops are really in the wrong here. Hell, they didn’t even blow away the perp…now that has to count for something!

    The homeowner, OTOH, made an affirmative choice to underinsure his 500K+ home. Are you telling me natural disasters don’t happen in CO? WTH do you think insurance is for? Precisely for these unforeseen circumstances. That decision is 100% on the homeowner. My pity for the homeowner is lessened somewhat by the knowledge the homeowner affirmatively made a choice to underinsure their home.

    1. They were supposed to wait until he came out (or committed suicide).

    2. “what exactly are the police supposed to do, considering the man was barricaded and armed?”

      Evacuate anyone else from the house, turn off the water and wait. Note that only step 1 involves valuing human lives over property, a stated premise of the lack of liability.

    3. “The homeowner, OTOH, made an affirmative choice to underinsure his 500K+ home. Are you telling me natural disasters don’t happen in CO?”

      The insurance company could cite “public disturbance” and decline to pay out. Why should they pay for someone’s intentional choice to destroy the structure(s) on the property? Insurance is for accidents.

  20. The judges know that those cop unions are never going to vote Libertarian, and are betting on generalized cowardice. But the collapse of news media bought with Nixon-subsidized political race subsidies is letting the LP message leak through. When I was in college the LP existed, but the fact was kept under wraps by the local and campus papers. It took me until 1980 to detect the LP’s existence–following communist brainwashers to a campus meeting as a hostile critic. Nowadays people can easily find the LP.

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