{"id":40424,"date":"2019-10-30T14:53:49","date_gmt":"2019-10-30T19:53:49","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=40424"},"modified":"2019-10-30T16:13:07","modified_gmt":"2019-10-30T21:13:07","slug":"ca10-when-the-police-destroy-your-house-in-aid-of-the-police-power-because-of-a-barricaded-suspect-its-not-a-taking-under-the-5a","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=40424","title":{"rendered":"CA10: When the police destroy your house in aid of the police power because of a barricaded suspect, it\u2019s not a taking under the 5A"},"content":{"rendered":"

When the police destroy your house in aid of the police power because of a barricaded suspect, it\u2019s not a taking under the Fifth Amendment. [The Fourth Amendment is not cited.] Lech v. Jackson<\/a>, 2019 U.S. App. LEXIS 32393 (10th Cir. Oct. 29, 2019):
\n<\/p>\n

But contrary to the Lechs\u2019 position, at least three of our sibling circuits and the Court of Federal Claims have expressly relied upon the distinction between the state\u2019s police power and the power of eminent domain in cases involving the government\u2019s 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 \u201crendered worthless\u201d) the plaintiff\u2019s pharmaceuticals \u201cin connection with [a criminal] investigation\u201d because \u201cthe government seized the pharmaceuticals in order to enforce criminal laws\u201d\u2014an action the Federal Circuit said fell well \u201cwithin the bounds of the police power.\u201d 525 F.3d 1149, 1150, 1153\u201354 (Fed. Cir. 2008) (citing Bennis v. Michigan, 516 U.S. 442, 443\u201344, 452\u201353 (1996)); see also, e.g., Zitter v. Petruccelli, 744 F. App\u2019x 90, 93, 96 (3d Cir. 2018) (unpublished) (relying on distinction between power of eminent domain and police power to hold that no taking occurred where officials physically seized plaintiff\u2019s oysters and oyster-farming equipment (citing Bennis, 516 U.S. at 452)); Johnson v. Manitowoc Cty., 635 F.3d 331, 333\u201334, 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\u2019s home (citing Bennis, 516 U.S. at 452)); Bachmann v. United States, 134 Fed. Cl. 694, 696 (Fed. Cl. 2017) (holding that \u201c[w]hen private property is damaged incident to the exercise of the police power, such damage\u201d\u2014even when physical in nature\u2014\u201cis not a taking for the public use, because the property has not been altered or turned over for public benefit\u201d (citing Nat\u2019l Bd. of Young Men\u2019s Christian Ass\u2019ns v. United States, 395 U.S. 85, 92\u201393 (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\u201344, 453\u201354 (rejecting plaintiff\u2019s Takings Clause claim where state court ordered vehicle \u201cforfeited as a public nuisance\u201d without requiring state to compensate plaintiff, who shared ownership of vehicle with her husband; reasoning that when state acquires property \u201cunder the exercise of governmental authority other than the power of eminent domain,\u201d government is not \u201crequired to compensate an owner for [that] property\u201d (emphasis added)); Miller v. Schoene, 276 U.S. 272, 277, 279\u201380 (1928) (rejecting constitutional challenge to statute that allowed state to condemn and destroy \u201ccedar trees infected by cedar rust,\u201d even though statute did not require state to compensate owners for any trees it destroyed; characterizing statute as valid \u201cexercise of the police power\u201d).<\/p>\n

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\u2014by, for example, tearing out door jambs and removing pieces of interior trim from his home\u2014while executing a search warrant. 125 F.3d 1341, 1344\u201346, 1351 (10th Cir. 1997). In doing so, we reasoned that the plaintiff \u201cfail[ed] to allege any facts showing how his property was taken for public use.\u201d Id. at 1351. And although we did not expressly note as much in Lawmaster, we have previously equated the state\u2019s power to \u201ctake[] property for public use\u201d with the state\u2019s power of eminent domain, as opposed to its police power. Lamm v. Volpe, 449 F.2d 1202, 1203 (10th Cir. 1971) (\u201cPolice 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.\u201d).<\/p>\n

Thus, by holding that the plaintiff in Lawmaster could not show a Fifth Amendment violation because he failed to show \u201chow his property was taken for public use,\u201d 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\u2019x 221, 223\u201324 (3d Cir. 2013) (unpublished) (relying in part on Lawmaster to hold that because defendants exercised state\u2019s police power\u2014rather than power of eminent domain\u2014when they seized plaintiffs\u2019 property pursuant to search warrant and subsequently damaged it, defendants \u201cdid not engage in a \u2018taking\u2019 under the Fifth Amendment\u201d). <\/p><\/blockquote>\n

WaPo: Police blew up an innocent man’s house in search of an armed shoplifter. Too bad, court rules.<\/a> by Meagan Flynn<\/p>\n

\"Lech<\/p>\n","protected":false},"excerpt":{"rendered":"

When the police destroy your house in aid of the police power because of a barricaded suspect, it\u2019s not a taking under the Fifth Amendment. [The Fourth Amendment is not cited.] Lech v. Jackson, 2019 U.S. App. LEXIS 32393 (10th … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[45,1],"tags":[],"class_list":["post-40424","post","type-post","status-publish","format-standard","hentry","category-45","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40424","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=40424"}],"version-history":[{"count":5,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40424\/revisions"}],"predecessor-version":[{"id":40433,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40424\/revisions\/40433"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=40424"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=40424"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=40424"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}