Just Because You Lost It Doesn’t Mean They Took It
The government has an obligation to pay just compensation when the government “takes” your property for a public use. And in some states, just compensation is required when the government damages your property for “public use”. But the terms “taking” and “public use” can be tricky things.
For example, if the police enter your house and damage it while in pursuit of a criminal, that’s usually a valid exercise of the police power, and will not be a taking.
So it went in Colorado, where the SWAT team entered a house and left it… not in the best condition. Shambles really. The landowner claimed just compensation was required.
The City of Greenwood Village declined to pay the owner just compensation for a taking, arguing that their actions were permissible as a valid exercise of “police power”, which is not the same as exercising the power of eminent domain. But, they did offer $5,000 to help the owner pay for his insurance deductible and to cover a temporary rental.
Litigation ensued, and the City prevailed. This is not an unexpected outcome.
A few interesting tidbits. First, for takings nerds, although Colorado has a “takings and damages” constitution, the 10th Circuit Opinion treated “taken or damaged” under the Colorado Constitution and “taken” under the United States Constitution as “essentially the same”. This is because the landowner “acknowledged” that the rights under the state and federal law were “essentially the same”, the trial court agreed with them, and the appellants did not challenge that issue on appeal. As someone who focuses a lot on the difference between takings and damages, I am not sure I agree with that point. But, if the landowner doesn’t argue it, the Court can’t get there.
Second, for Nevadans, it is the standard rule that no just compensation is required for casualties caused by war, or fire, or police action, or riot, or great public peril. Thus, the 10th Circuit Opinion is consistent with generic “law of eminent domain”. Nevada, however, has a different rule, stating “Private property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made “.