Damage to Home by Police Officers Does not Constitute a Taking

On October 29, the City of Greenwood Village won a police liability case in the Tenth Circuit.  The court joined three other circuits and the Court of Federal Claims in holding that damage to private property which occurs in the course of law enforcement activities is not actionable as a “taking” for which the government must pay compensation under the Fifth Amendment.  In short, there is a clear distinction between actions by the government under the “police power” versus the eminent domain power.  The case centered on a “barricade situation” created by an armed criminal suspect in a private home owned by the plaintiffs.  In the resulting 19-hour standoff, the home suffered significant damage as the police employed various tactics to enter the structure and neutralize the suspect.  The constitutional guarantee of just compensation when private property is taken for public use does not apply to property damage which occurs when police enforce criminal law, even when the property is owned by an “innocent third party” such as the plaintiffs in this case. 

• Status: 10^th Circuit Court ruled in favor of Greenwood Village in an unpublished opinion
• CML Amicus Author: Dianne Criswell, Former CML Legislative Counsel; jointly filed with IMLA

Lech v. Jackson, No. 18-1051, 2019 WL 5581699 (10th Cir. Oct. 29, 2019).

Click to View Amici Brief