Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation - Ilya Somin, Volokh Conspiracy, Reason.com:
October 31, 2019 - "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:
"The city refused to compensate the Lech family for their losses but offered $5,000 in temporary rental assistance and for the insurance deductible....
"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.... 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'....
"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'.... The court is right to point out that this distinction between the 'police power' and eminent domain has been adopted in many ... previous takings decisions.... But the rule still makes no sense, and should be done away with....
"The fact that the 'police power' may have been involved does not normally immunize the government from takings liability.... 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....
"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.... 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....
"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."
October 31, 2019 - "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 ... where an armed Walmart shoplifting suspect randomly barricaded himself after fleeing the store.... 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.... [T]he home was utterly destroyed, eventually condemned by the City of Greenwood Village....
"The city refused to compensate the Lech family for their losses but offered $5,000 in temporary rental assistance and for the insurance deductible....
"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.... 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'....
"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'.... The court is right to point out that this distinction between the 'police power' and eminent domain has been adopted in many ... previous takings decisions.... But the rule still makes no sense, and should be done away with....
"The fact that the 'police power' may have been involved does not normally immunize the government from takings liability.... 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....
"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.... 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....
"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."
No comments:
Post a Comment