The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.