Crime and the Takings Clause: They Go Together


Little noticed among the decisions the Supreme Court handed down today, buried in its long list of cert denials, is an especially egregious case, Lech v. City of Greenwood Village, a case with possibly disturbing implications for the police brutality issues now before the country. The facts were briefly outlined in Cato’s summary of our amicus brief urging the Court to take up the case:

Leo and Alfonsia Lech owned a home in Greenwood Village, Colorado where their son John lived. In early June of 2015, a shoplifter who was fleeing from the police chose the house at random to hide from the police. When the police arrived, they discovered that the shoplifter was armed and dangerous. Flushing him out of the house required two gas‐​canisters, breaking down the front and back doors, and blowing holes in the walls and windows. The shoplifter was captured, but the home was uninhabitable. This case is about who covers the costs of building a new house, the public who were protected from a violent criminal, or the innocent family that lost their home.

The Leches brought suit to recover their losses under the Fifth Amendment’s Taking’s Clause, which requires the government to pay owner’s just compensation when their property is taken for a public use. True, the clause ordinarily arises outside the criminal context, when the government needs to build a road, a dam, and the like. But the Court has had a capacious understanding of “public use,” as in the notorious 2005 Kelo decision where it held economic development and increasing a municipality’s tax base were public uses—or at least public benefits. At least there, however, Suzette Kelo received reasonable compensation. Here, the Leches got a pittance: $5,000.

And it isn’t as if the principle behind the Takings Clause had not been satisfied: the government cannot force “some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960) Even if apprehending this shoplifter were worth this cost—a doubtful proposition—it surely should have been borne by the public as a whole, not fallen entirely on these innocent homeowners. Yet contrary to precedent, the Tenth Circuit invoked a police power exception, even though countless health and safety measures that give rise to compensation under the Takings Clause are undertaken pursuant to the police power.

It’s likely, however, that the “safety” at issue here sounded more in the criminal than in the civil context—as if that really mattered. To be sure, we have the police to protect our safety. But they cannot do so by any means. When the means they employ fall on innocent individuals, the least the government can do is make those victims whole. The Constitution requires nothing less. In fact, it requires a good deal more, as the current crisis is making clear.

Roger Pilon is the founding director of the Cato Institute’s Center for Constitutional Studies, the founding publisher of the Cato Supreme Court Review and the inaugural holder of Cato’s B. Kenneth Simon Chair in Constitutional Studies. Prior to joining Cato, Pilon held five senior posts in the Reagan administration, including State and Justice, and was a national fellow at Stanford’s Hoover Institution. In 1989 the Bicentennial Commission presented him with its Benjamin Franklin Award for excellence in writing on the U.S. Constitution. In 2001 Columbia University’s School of General Studies awarded him its Alumni Medal of Distinction. Pilon lectures and debates at universities and law schools across the country and testifies often before Congress. Pilon holds a BA from Columbia University, an MA and a PhD from the University of Chicago, and a JD from the George Washington University School of Law.

Used with permission. Cato Institute / CC BY-NC-SA 4.0