A recent Federal Appellate case
clarifies that significant damage to real property resulting
from a valid police pursuit is covered under a state's police power and is
not a government taking.
The case stemmed from
events occurring in June of 2015. At that time, Greenwood City Police
officers responded to a burglar alarm at the home of the Lechs. The responding
officers, quickly learned that an armed criminal suspect who was attempting to
evade capture was inside. In order to prevent escape, the officers positioned
their vehicles in the driveway of the Lechs' home. Upon seeing this, the
suspect fired a bullet from inside the garage and struck an officer's car. The
officers deemed the incident a high-risk, barricade situation.
Over the next several hours, negotiators
attempted to resolve the situation. After these efforts proved unsuccessful,
the officers released several rounds of gas munition into the house. They then
breached the home's doors with a BearCat armored vehicle so they could send in
a robot to deliver a "throw phone". They also used explosives to
create sight lines and points of entry to the home. Eventually, officers used
the BearCat to open multiple holes in the home and again deployed a tactical
team to apprehend the suspect. Although the tactical team was successful, the
Lech’s family home was rendered uninhabitable.
The City denied liability for the incident and
declined to provide compensation to help rebuild the home. The Lechs then sued
alleging the city violated the Takings Clause of both the United States and
Colorado Constitutions by damaging the Lechs' home without providing just
compensation.
The Appellate court, in an opinion that can
only be cited for persuasive authority, held that the City did not have to
compensate the Lechs. The court stated that the city was not responsible for
the cost of rebuilding the home because (1) the
law-enforcement actions fell within the scope of the police power; and (2)
actions taken pursuant to the police power do not constitute a government
taking since it is for the public good rather than public use. However,
this decision is not a blank check for the destruction of property
during police pursuits. As the Court pointed out, police officers who willfully or
wantonly destroy property may be responsible for civil damages.
