When the police destroy your house in aid of the police power because of a barricaded suspect, it’s not a taking under the Fifth Amendment. [The Fourth Amendment is not cited.] Lech v. Jackson, 2019 U.S. App. LEXIS 32393 (10th Cir. Oct. 29, 2019):
But contrary to the Lechs’ position, at least three of our sibling circuits and the Court of Federal Claims have expressly relied upon the distinction between the state’s police power and the power of eminent domain in cases involving the government’s direct physical interference with private property. For instance, in AmeriSource Corp. v. United States, the Federal Circuit held that no taking occurred where the government physically seized (and ultimately “rendered worthless”) the plaintiff’s pharmaceuticals “in connection with [a criminal] investigation” because “the government seized the pharmaceuticals in order to enforce criminal laws”—an action the Federal Circuit said fell well “within the bounds of the police power.” 525 F.3d 1149, 1150, 1153–54 (Fed. Cir. 2008) (citing Bennis v. Michigan, 516 U.S. 442, 443–44, 452–53 (1996)); see also, e.g., Zitter v. Petruccelli, 744 F. App’x 90, 93, 96 (3d Cir. 2018) (unpublished) (relying on distinction between power of eminent domain and police power to hold that no taking occurred where officials physically seized plaintiff’s oysters and oyster-farming equipment (citing Bennis, 516 U.S. at 452)); Johnson v. Manitowoc Cty., 635 F.3d 331, 333–34, 336 (7th Cir. 2011) (relying on distinction between power of eminent domain and police power to hold that no taking occurred where authorities physically damaged plaintiff’s home (citing Bennis, 516 U.S. at 452)); Bachmann v. United States, 134 Fed. Cl. 694, 696 (Fed. Cl. 2017) (holding that “[w]hen private property is damaged incident to the exercise of the police power, such damage”—even when physical in nature—“is not a taking for the public use, because the property has not been altered or turned over for public benefit” (citing Nat’l Bd. of Young Men’s Christian Ass’ns v. United States, 395 U.S. 85, 92–93 (1969))). Further, although the Supreme Court has never expressly invoked this distinction in a case alleging a physical taking, it has implicitly indicated the distinction applies in this context. See, e.g., Bennis, 516 U.S. at 443–44, 453–54 (rejecting plaintiff’s Takings Clause claim where state court ordered vehicle “forfeited as a public nuisance” without requiring state to compensate plaintiff, who shared ownership of vehicle with her husband; reasoning that when state acquires property “under the exercise of governmental authority other than the power of eminent domain,” government is not “required to compensate an owner for [that] property” (emphasis added)); Miller v. Schoene, 276 U.S. 272, 277, 279–80 (1928) (rejecting constitutional challenge to statute that allowed state to condemn and destroy “cedar trees infected by cedar rust,” even though statute did not require state to compensate owners for any trees it destroyed; characterizing statute as valid “exercise of the police power”).
And we have likewise implicitly treated the distinction between the police power and the power of eminent domain as dispositive of the taking question, even when the interference at issue is physical, rather than regulatory, in nature. For instance, in Lawmaster v. Ward, we held that the plaintiff failed to establish a Takings Clause violation where federal agents physically damaged his property—by, for example, tearing out door jambs and removing pieces of interior trim from his home—while executing a search warrant. 125 F.3d 1341, 1344–46, 1351 (10th Cir. 1997). In doing so, we reasoned that the plaintiff “fail[ed] to allege any facts showing how his property was taken for public use.” Id. at 1351. And although we did not expressly note as much in Lawmaster, we have previously equated the state’s power to “take property for public use” with the state’s power of eminent domain, as opposed to its police power. Lamm v. Volpe, 449 F.2d 1202, 1203 (10th Cir. 1971) (“Police power should not be confused with eminent domain, in that the former controls the use of property by the owner for the public good, authorizing its regulation and destruction without compensation, whereas the latter takes property for public use and compensation is given for property taken, damaged[,] or destroyed.”).
Thus, by holding that the plaintiff in Lawmaster could not show a Fifth Amendment violation because he failed to show “how his property was taken for public use,” we implicitly held his Takings Clause claim failed because he could not show the government acted pursuant to its power of eminent domain, rather than pursuant to its police power. 125 F.3d at 1351; see also McKenna v. Portman, 538 F. App’x 221, 223–24 (3d Cir. 2013) (unpublished) (relying in part on Lawmaster to hold that because defendants exercised state’s police power—rather than power of eminent domain—when they seized plaintiffs’ property pursuant to search warrant and subsequently damaged it, defendants “did not engage in a ‘taking’ under the Fifth Amendment”).