In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
What happened to Leo Lech's family is the stuff of nightmares: Back in June 2015, a man suspected of shoplifting two belts and a shirt broke into Lech's Greenwood Village, Colorado home and barricaded himself inside, firing a handgun at the officers who had chased him to the driveway. During the 19-hour standoff that ensued, police turned the property into a miniature suburban battlefield, using gas and tactical explosives to try and flush the suspected clothing thief out, finally making the arrest only after using an armored vehicle to gouge multiple holes in the exterior walls. The home was a total loss, and Lech says he was forced to spend nearly $400,000 of his own money to rebuild it, according to the Washington Post.
At the time, the city offered Lech $5,000 to cover insurance premiums and living expenses, but otherwise refused to pay for any of the damage its officers caused, dismissing his troubles as an accidental but unavoidable byproduct of effective law enforcement in the face of petty crime. "My mission is to get that individual out unharmed and make sure my team and everyone else around including the community goes home unharmed," Greenwood Village police commander Dustin Varney told the local NBC affiliate, KUSA, in the standoff's aftermath. "Sometimes that means property gets damaged, and I am sorry for that."
Unsatisfied with this result, Lech sued the town in federal court. Last Tuesday, a three-judge panel of the Tenth Circuit Court of Appeals affirmed that in this case, Lech is out of luck. He centered his claims on the Takings Clause, a provision of the Fifth Amendment to the U.S. Constitution that bars the government from taking private property without "just compensation." It is a basic fairness limitation on the government's power of eminent domain, which allows it to commandeer privately-owned property for a public use. A classic example is a home that stands in the path of a planned road: In this context, the state can take (and get rid of) the home to clear the way, but it has to compensate the owner for their troubles. By destroying his home in the course of arresting a criminal suspect, Lech argued, the government effectively took it.
The judges weren't buying it. They concluded that the officers weren't exercising the power of eminent domain, but were instead exercising the "police power"—a term that refers to the power of states to, among other things, enforce public safety laws. Unlike eminent domain, there is no constitutionally-mandated requirement that the government pay for property damage incident to arresting criminal suspects or other lawful exercises of the police power. Since the Lech's home was not "taken" for a tangible public benefit or use—because no road, for example, appeared where it once stood—the state has no obligation to pay the owners for destroying it.
For Lech, who arrived at his property to find that cops had reduced it to a pile of rubble, this is a maddening, meaningless distinction. "It just goes to show that they can blow up your house, throw you out on the streets and say, ‘See you later. Deal with it,’” he told the Washington Post. He had no say in how the police did their jobs that day, and no control over whether the situation might escalate to the point where they started using explosives in his hallways. Lech's involvement in this case is entirely involuntary—the result of having the terrible misfortune to own a house that the government flattened in order to arrest a man suspected of petty theft.
The court's opinion suggests that it is, at the very least, troubled by how "unfair" the result seems. It notes a 1991 case in which a federal court in Minnesota took a more bystander-friendly approach, concluding that when police damage an "innocent third party's property" in pursuit of a suspect, they inflict that damage "for a public use"—keeping people safe from a potentially dangerous person. This reasoning, the Tenth Circuit concedes, holds "considerable appeal" as a "matter of policy" in cases like Lech's. But as a matter of constitutional law, the judges decided, an owner's innocence doesn't turn their bad-luck loss into a "taking" under the Fifth Amendment.
This decision is especially troubling in light of the ongoing militarization of American police forces, which equips officers with hardware designed for war zones in the name of protecting officers in the line of duty. After the 2014 Ferguson protests, President Barack Obama began limiting the availability of surplus military gear to law enforcement agencies, warning that it "can sometimes give people the feeling like there’s an occupied force, as opposed to a force that is part of that community it is protecting and serving." A 2018 study found that militarization does not reduce violent crime or have a meaningful impact on officer safety, and that predominantly black areas are more likely than predominantly white areas to be interrupted by high-risk, SWAT-style operations. In 2017, a research team uncovered a positive relationship between military equipment transfers and officer-involved fatalities, and in a writeup in the Washington Post, they theorized that militarization "makes every problem...look like a nail that should be hit with an AR-15 hammer." The tactics Greenwood Village police employed, in other words, were dangerous well before they ended with holes in Leo Lech's walls.
As part of the Trump administration's often-professed commitment to "law and order," however, then-attorney general Jeff Sessions reversed the Obama administration's policy in 2017, restoring the pipeline of heavy equipment to local law enforcement agencies. "We will not put superficial concerns above public safety," he said at the time. The destruction of an innocent person's home is hardly "superficial," though. And the court's refusal to hold the government accountable for the collateral damage of this mandate is one more way that military-style policing makes people less safe.
The Bureaucratic Method
There's no telling how many guns we have in America—and when one gets used in a crime, no way for the cops to connect it to its owner. The only place the police can turn for help is a Kafkaesque agency in West Virginia, where, thanks to the gun lobby, computers are illegal and detective work is absurdly antiquated. On purpose. Thing is, the geniuses who work there are quietly inventing ways to do the impossible.
Originally Appeared on GQ