Of all the houses on all the streets in Greenwood Village, Colorado, Robert Jonathan Seacat had to pick Leo Lech’s. To save a child they (wrongly) believed was held captive in the house, police pretty much destroyed the place.

Well, we did what we had to do.

Whether that was so is disputable, but what was not disputable is that the Tenth Circuit held that the Village was not liable for the damage the cops caused to Lech’s home because it was a proper use of the “police power,” an exception to the Fifth Amendment’s “takings clause,” which provides “…nor shall private property be taken for public use, without just compensation.”

Pretty much the same scenario arose with Vicki Baker’s home in McKinney, Texas.

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker’s home in McKinney, Texas. Baker’s daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.

SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker’s fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.

This time, however, Judge Amos Mazzant denied the city’s motion to dismiss.

The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances. See Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App’x. 711; AmeriSource Corp., 525 F.3d 1149.

It’s not quite as crazy as it might initially appear. After all, if the police do their job of policing, it may well result in damage to property. Consider the police breaking down the door of a residence to execute a warrant for some heinous crime. The door is most assuredly damaged, but isn’t that collateral damage? Do we want police to be precluded from acting? If there is a hostage inside, should they not be empowered to do some damage for the greater good?

But then, there is a difference between doing damage to the property of the person who engaged in crime, even if the basis for such a claim is merely probable cause, and damaging the property of some unrelated, innocent third party who did nothing to  substantively contribute to the destruction of their property, their home.

And then again, how would the cops know this in advance of “doing what they had to do”? And yet again, what difference should this make, as the liability would accrue to the public, the city, which has a greater vested interest in preventing crime and saving people than the innocent homeowner whose property is destroyed. Would it be better to have the city instruct its cops to let the hostage die as it’s cheaper than paying damages for the house? It’s a mess.

Ilya Somin argues that the Tenth Circuit’s holding in Lech was wrong, and that Judge Mazzant’s ruling is correct, that the police power exception to the Takings Clause should not be a per se rule.

I think Judge Mazzant is absolutely right that the police power does not create a blank-check exemption from takings liability. Nor is there a blank check for law-enforcement operations specifically. I outlined some of the reasons why in my critique of the Lech decision and in an amicus brief in which the Cato Institute and I unsuccessfully urged the Supreme Court to review and overrule Lech. Among other things, I pointed out that the Takings Clause was enacted in the first place in part as a reaction against the depredations of British troops during the colonial era and Revolutionary War. Many of these seizures and occupations of property were, of course,  undertaken for the purpose of enforcing various British laws against recalcitrant colonists.

The argument that it’s not a “blank check” for cops to destroy has great appeal, but as Ilya recognizes, if the rule isn’t per se, then what should the rule be?

Judge Mazzant’s ruling doesn’t definitively resolve the case. It merely rejects the City’s motion to dismiss, allowing Baker to move forward with her claim. The decision also doesn’t establish a clear standard for when destructive law-enforcement operations qualify as takings. For the moment, the court only rejects the theory (endorsed in cases like Lech) that such operations enjoy a virtually categorical exemption.

The decision will almost certainly be appealed, and while Judge Massant’s point on the 12(b)(6) motion that the suit should not be precluded by Lech, that doesn’t mean that his decision will neither be reversed by the Fifth Circuit nor that he will ultimately grant summary judgment when push comes to shove. But Ilya sums up the core liability question very well.

Finally, it’s worth noting that, regardless of the legal issues, a just government would accept that it has a moral obligation to pay compensation in cases like this one. After all, its agents have deliberately inflicted enormous harm on an innocent homeowner. Even if they do so for a good purpose (catching a dangerous criminal), basic justice and fairness demand that the cost be borne by the general public who benefit from his capture, not arbitrarily concentrated on one person, who did no wrong.

Putting the “moral obligation” aside, there is a social purpose and benefit to the police doing their job, should they choose to do so. We want them to capture dangerous criminals. We want them to save hostages. We want them to protect people from harm. And that provides a rational basis for the public to shoulder the burden of their exercise of the police power rather than dumping it on some random innocent person “who did no wrong.”