DENVER (CN) – Affirming summary judgment, the 10th Circuit ruled Tuesday that a Colorado family is not entitled to compensation after a 19-hour standoff between police and a shoplifter left their home uninhabitable.
“We likewise reject the Lechs’ assertion that the police power does not encompass the state’s ability to seize property from an innocent owner,” U.S. Circuit Judge Nancy Moritz, a Barack Obama appointee, wrote for a three-judge panel.
On June 3, 2015, the Greenwood Village Police Department responded to a call of a man shoplifting two belts and a shirt from an area Walmart. The suspect, Jonathan Seacat, shot at police as he fled and then randomly picked the home of Leo and Alfonsia Lech to hide.
Only the Lechs’ 9-year-old grandson was home at the time and he quickly fled the house.
Over the next 19 hours, police attempted to flush Seacat out, eventually using a boom ram on an armored vehicle to tear open holes in the Lechs’ home to expose Seacat and make it easier for a sniper to find him.
Rendered uninhabitable by the standoff, the Lechs had to be rebuild from the ground up. Greenwood Village offered $5,000 to help with the expense of being rendered homeless but denied accountability for the home’s destruction.
After the family sued, U.S. District Judge Philip Brimmer, a George W. Bush appointee, sided with Greenwood Village in 2018 and found the destruction was justified given the circumstances.
In their appeal, the Lechs argued the “takings clause” in both the U.S. and Colorado constitutions promises to compensate property owners for land taken by the government. But because the home was destroyed in a police raid – and not under the authority of eminent domain for a specific community project – the 10th Circuit panel found said protections do not apply.
“According to the Lechs, the defendants’ conduct amounts to a taking because the officers physically intruded upon and ultimately destroyed their home and such a physical appropriation of property gives rise to a per se taking,” Moritz wrote for the panel. “The defendants, on the other hand, argue that no taking occurred because the officers damaged the Lechs’ home pursuant to the police power, not the power of eminent domain.”
Other appeals courts have supported drawing a hard line between state police power and the power of eminent domain, ranging from cases where police damaged door jambs during raids to pilfered pharmaceuticals and obliterated oyster-farming equipment.
“We do not disagree that the defendants’ actions benefited the public,” Moritz wrote. “When the state acts to preserve the safety of the public, the state is not, and, consistent with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain in the process.”
During oral argument in November 2018, defense attorney Andrew Nathan of the Denver firm Nathan, Bremer, Dumm & Myer argued that if police are expected to consider the costs of their actions, they may compromise safety for the bottom line.
In an email, Greenwood Village city attorney Tonya Davidson said the police did what they had to do.
“The house was being used as a barricade, and the damage done to it was to remove the barricade and get the gunman out without any loss of life,” Davidson said. “That is not a taking where the city is required to offer fair market value for the property.”
She added: “If we took it, we’d still have it. Instead, the Lechs were compensated by their insurance carrier, demolished the house, repoured the foundation that we didn’t damage and built a bigger, better house where the old one stood.”
Denver-based attorney Rachel Maxam represented the Lech family and did not respond to a request for comment by press time.
Senior U.S. Circuit Judge Monroe G. McKay, a Jimmy Carter appointee, and George W. Bush-appointed U.S. Circuit Judge Jerome Holmes rounded out the panel.
With a population of 15,721, Greenwood Village sits 5,466 feet above sea level between Denver and Centennial.
In April 2018, Arapahoe District Court Judge Andrew Baum sentenced Seacat, then 35, to 100 years in prison for “numerous counts including attempted manslaughter.”