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11/02/2019

Ilya Somin on Police Power Takings
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation.  From the introduction:

Earlier this week, the US Court of Appeals for the Tenth Circuit ruled [in Lech v. Jackson] 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 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. For example, in 2013, the Supreme Court unanimously  held that a taking can occur as a result of the government deliberately flooding land. ...

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 of previous takings decisions immunizing law enforcement agents from liability. The main relatively new aspect of this case is applying the distinction to the physical invasion or destruction of property, as well as to "regulatory takings" where the government merely restricts the owner's ability to use his or her land. But the rule still makes no sense, and should be done away with.

Citing this article by Benjamin Barros, Professor Somin argues that "The history and original meaning of the Takings Clause also supports the notion that exercises of the "police power" can be takings."

This seems like a question originalism ought to be able to answer.  Police (and military) damages to property were likely fairly common in the founding era (or, if you prefer, in the time leading up to the enactment of the Fourteenth Amendment).  It should be fairly easy to see whether there was a pattern of compensating -- or, more importantly, not compensating -- them.  (I haven't read the cited article closely enough to have an opinion).

For what it's worth, Chief Justice Taney in Mitchell v. Harmony (1851) strongly implied that a military taking, even if motivated by emergency, would require compensation. In a case involving military seizure of private property during the Mexican War, he wrote for the Court:

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may impress private property into the public service or take it for public use. Unquestionably in such cases the government is bound to make full compensation to the owner, but the officer is not a trespasser.

But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.

(The Court held in the particular case that no such emergency existed).