EDITORIAL: Cops owe nothing for destroying a man’s house

The Fifth Amendment holds that the state may not take private property “for public use without just compensation.” The clause stands as a vital bulwark against tyranny by defining the relationship between government and private property in a free society.

Progressives over the years have successfully undercut the Fifth Amendment by persuading sympathetic judges that government rules which place excessive burdens on how landowners use their property shouldn’t fall under the takings clause. Forcing public agencies to pay property owners in cases of regulatory overreach would have significant ramifications for the growth of the administrative state.

But now a federal court has further undermined the takings restriction, ruling last week that the state is free to destroy an innocent owner’s home without being liable for the damages. The case cries out for Supreme Court review.

The story begins in 2015 when police in the Denver suburb of Aurora sought to arrest a shoplifting suspect who had multiple felony warrants. The man fled to the nearby town of Greenwood Village and entered the home of Leo Lech in order to elude authorities. The Denver Post reported that, after a five-hour standoff, “police started an assault on the home,” which included explosives, tear gas and gunfire.

Fourteen hours later, the Post reported, the police arrested the suspect. But Mr. Lech’s home was essentially destroyed. “In some spots, the damage was so severe,” the paper found, “the wooden frame of the house was exposed.” Much of the interior was “rubble.” Debris “covered the yard” and most of the belongings inside “had been damaged and tear gas canisters remained lodged in the walls.”

Greenwood Village officials offered to pay the Lech family $5,000 to cover temporary living expenses but refused to accept responsibility for the damage to the home. Last week, a three-judge panel of the 10th U.S. Circuit court of Appeals upheld the municipality’s position, ruling that because the damage occurred during a police operation, the government has no responsibility to offer “just compensation.”

As Ilya Somin of Reason.com points out, some courts have indeed ruled that when the government uses police powers in an effort to protect the public, its actions do not constitute a taking. But this is far from settled doctrine — and runs contrary to other court rulings, not to mention common sense. How is it not a taking if a government operation — police-related or not — destroys a man’s home and property?

“There is no good reason,” Mr. Somin writes, “to exempt law-enforcement operations from takings liability of the same kind that applies to other government actions that might enhance public safety.”

Mr. Lech should appeal. And the Supreme Court should seize the opportunity to insist that the Fifth Amendment’s takings clause means what it says.