Takings

Our Amicus Brief Urging the Supreme Court to Consider Takings Case in Which Authorities Refused to Compensate Innocent Owners of House Destroyed by Police

The brief was filed by the Cato Institute on behalf of both Cato and myself.

|The Volokh Conspiracy |

The Lech house after it was destroyed by police seeking to apprehend a suspected shoplifter (court exhibit).

 

I am pleased to have been able to join the Cato Institute's amicus brief urging the Supreme Court to consider Lech v. Jackson, a case in which the US Court of Appeals for the Tenth Circuit ruled there is no taking requiring compensation in a situation where the police deliberately destroyed an innocent family's home in order to catch a suspected shoplifter who had holed up inside. The brief is available here. I presented my take on the case in greater detail  in this post.

Thanks to Trevor Burrus, Michael Collins, and Ilya Shapiro of Cato, for their excellent work on the brief. While I have written a number of amicus briefs on behalf of Cato and other organizations, in this case I was mainly client rather than lawyer, helping with the drafting only in an advisory role.

It is perhaps worth noting the key way in which this case differs from some other situations where the government uses its "police power" to destroy property or severely restrict owners rights, yet courts generally hold there is no taking, as in recent litigation over the coronavirus shutdown. In these types of cases, the property itself or the owner's use of it poses a threat to public health or safety. By contrast, there is no such blanket "police power" exception to takings liability when the owner has done nothing wrong, but his or her property is taken or destroyed by the government in order to protect the public against some threat that does not arise from the property itself or the owner's use of it. Such cases are no different from situations where the government destroys a private home  in order to build a road or a military base on the site. The government's actions may be well-justified, but it must still compensate the owner.

Since the counsel of record on the brief is Ilya Shapiro, with whom I am often confused, you may wish to check out my 2018 post on how to avoid #IlyaConfusion and tell the two Ilyas apart. As that post explains, we differ on a number of issues. But we are definitely on the same page when it come to this case! Both of us—and, hopefully, all Ilyas everywhere—want the Supreme Court to take this case and overrule the lower court decision.

NEXT: "Police: Woman Filed False Report on Drug-Spiked Drink at UNH Frat"

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  1. It’s a good thing it was the police and not the people at the FBI. Those people can do all sorts of horrific and criminal acts and never be held accountable. Atleast now they have a fighting chance for justice.

    1. What do you think would have happened if the guy had holed up in a police employee’s house? Or a city councilman’s?

      The things that the police get away with in this country disgust me.

  2. We’ll see if the courts will do their jobs. But based on past and current police actions I doubt it. They will get away with destroying a house or arresting people for going outside, because reasons.

  3. Can someone explain why the police felt the need to destroy a house OVER A SHOPLIFTER? If they had been chasing a murder suspect, maybe, but a shoplifter? Seriously?

    1. A shoplifter, who according to the 10th circuit decision (as described by the town) was “an armed suspect, who was wanted on multiple felony arrest warrants, had tried to run an officer over with a vehicle, who had shot at police officers multiple times, who had barricaded himself in the Lech’s rental house, and who had refused to come out.”

      The suspect was convicted of 9 counts of attempted manslaughter for his actions leading to and thru the seige.

      1. Back in a saner time, police would have established a perimeter and waited.

        1. Waited for what, the guy to start shooting at them? Because that’s what happened here when they tried your tactic.

          1. If the police want to destroy a house instead of establishing a perimeter because they believe it is safer to themselves, that’s great, but that is not a reason to leave the owner uncompensated. If society believes that lives are worth more than houses, it can pay for the houses destroyed in an effort to save lives.

            When you talk about “money versus lives” (or houses versus lives), there is no balance when the public or the police can foist the cost of saving lives onto a tiny number of bystanders.

            1. How long exactly were the neighbors supposed to live in hotels, in your scenaro?

              1. A few hours. The suspect wasn’t in his own home. It’s not like he was sitting on a massive armory with enough ammunition for a protracted siege.

          2. I’m thinking of this case, where the cops are lucky they didn’t kill *themselves* because they ruptured a Liquid Propane tank in the process.

            https://bangordailynews.com/2018/08/28/mainefocus/the-aftermath-of-maine-police-exploding-a-mans-house-with-a-bomb-robot/

          3. How much ammunition do you imagine he had on him?

            So what that he’s shooting at them? Take cover and wait for him to run out of ammo.

    2. Police get to do what they want. Because the voters forgot they created the police. If voters ever remember who the police work for, voters would be able to bring about a lot of positive changes.

      In many places, voters should vote to eliminate the police department entirely and replace it with a new agency dedicated to protecting and serving the community.

    3. He was apparently a more hardened and dangerous criminal than just a shoplifter.

      With that said, all they had to do was wait him out.

  4. Why isn’t the criminal who was shooting at police the one who should be held liable?

    Hypothetically, if he were wealthy, the homeowners would have a very strong civil case against him to pay for restoring their home. So why does his liability change because he is poor?

    1. There is a legal theory that explains why. It is called the “deep pocket theory.”

      He very likely would be found liable if sued. An any lawyer who is willing to accept hypothetical payment would be glad to represent them.

    2. It doesn’t. It just isn’t worth anyone’s time.

    3. The owners clearly have a strong case against the fugitive. But, likewise, the state could sue the fugitive to subrogate their costs. The question isn’t whether the fugitive could be liable (he clearly is) but whether others are additionally liable and owe compensation.

  5. The rationale for making the state immune from suit for damages due to police activity is that we do not want the police to hesitate to do what is necessary for fear of having to pay for the damage. Would we not expect the police to be more likely to hesitate if they know that their actions will be paid for by the innocent party who happens to own the property than if they know that the cost will be distributed over the community at large?

    1. The Police never pay for the damage they do. If the Police had to pay, bad cops would be out much more quickly. In this case, I’m surprised they didn’t burn the house down. Since the vast majority of damage was caused by Police action, I see no problem with them paying for their fun. At least, they got to play with a bunch of cool toys.

      1. I’m surprised that they didn’t kill the perp.

    2. The police don’t pay. And if the aggrieved party is reimbursed this acts like an insurance policy paid for by taxpayers. And that’s a lot more fair than having the homeowner pay.

    3. “Would we not expect the police to be more likely to hesitate if they know that their actions will be paid for by the innocent party who happens to own the property than if they know that the cost will be distributed over the community at large?”

      No.

  6. Isn’t it going to cause some problem that they did offer to compensate the owner to the value he was stating his house had on insurance and tax filings? As I understand the case, the problem isn’t lack of compensation, as such. It’s that the owner had insufficient insurance to cover the replacement value of the house, and was understating its value on property tax filings, and the local government was only willing to see him compensated to the value he had claimed the house had prior to its destruction.

    That tends to make this a bad case to litigate the particular principle at stake, I should think.

    1. Brett, assuming all of that to be true, that goes to amount of damages rather than liability. In this case, the court said the police were not liable.

      1. That’s true, but it’s also true that the local government did, none the less, offer compensation. They got the ruling the police weren’t liable only after the litigation over the amount began.

    2. Seriously, I would not value my home based on the Property Tax Valuation either. Why have real estate Appraisers for mortgages? Just use the value the Government says. Right?

    3. The offer was 5k for temporary living expenses.

      1. On the assumption that the homeowners insurance would cover replacing the house. Only the insurance company was only going to pay out for the amount insured, which wasn’t enough.

        Note, I’m not saying that this is definitive. Just that it complicates the case.

      2. It is a confusing case because the family that owned the house has people in two categories. The father/owner of the house owned the house as a rental property and had a landlord/tenant relationship with his son, son’s partner, and their children.

        As I understand it, the offer of 5k was to the tenants, who had no renters insurance, to cover their losses.

        There was an additional offer to the owner, to cover the his insurance deductible.

        The insurance payment was inadequate for the actual costs of rebuilding the house, because the owner chose to demolish the undamaged foundation in order to build a larger house.

        Of course, while the above paints the plaintiffs in a somewhat less appealing light, they are still a distraction from whether this was a taking.

    4. How the house is insured is totally irrelevant. When you value a house for insurance purposes you’re just determining your desired reimbursement levels for certain circumstances. Not what’s is actually worth. I can insure for $1m for fire and $100k for earthquake. It’s a cost/benefit decision. And if it was undervalued for tax purposes go after him for that. That’s irrelevant to the actual value he lost in the police action.

    5. “Isn’t it going to cause some problem that they did offer to compensate the owner to the value he was stating his house had on insurance and tax filings?”

      You cannot always rebuild a house for the value of the old one: the old one is not new, has old-house problems, and is therefore often worth less than new construction. But you can’t build an old house, so you arguably end up under-compensated.

  7. This ridiculous hoax has gone on too long.

    #OnlyOneIlya

    1. And I suppose you think there is only one Olsen twin?

      On the other hand it’s true that there is only one fruitcake which gets passed from family to family every Christmas.

  8. Perhaps the legal force will be with property owners on this issue in light of a new and personally felt awareness of the awesome, and often noisome, powers of the state during the virus crisis.

  9. I have long held that all Ilyas all look the same. 🙂

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