Lech v. Jackson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 29, 2019
____________________________________
Elisabeth A. Shumaker
Clerk of Court
LEO LECH; ALFONSIA LECH; JOHN
LECH,
Plaintiffs - Appellants,
v. No. 18-1051
(D.C. No. 1:16-CV-01956-PAB-MJW)
CHIEF JOHN A. JACKSON; (D. Colo.)
COMMANDER DUSTIN VARNEY;
OFFICER MIC SMITH; OFFICER JEFF
MULQUEEN; OFFICER AUSTIN
SPEER; OFFICER JARED ARTHUR;
OFFICER BRYAN STUEBINGER;
OFFICER JUAN VILLALVA; OFFICER
ANDY WYNDER; OFFICER ANTHONY
COSTARELLA; OFFICER ROB
HASCHE, of the Greenwood Village
Police Department, individually and in
their official capacities; THE CITY OF
GREENWOOD VILLAGE,
Defendants - Appellees.
------------------------------
COLORADO MUNICIPAL LEAGUE;
INTERNATIONAL MUNICIPAL
LAWYERS ASSOCIATION,
Amici Curiae.
_________________________________
ORDER AND JUDGMENT*
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
_________________________________
Before HOLMES, McKAY, and MORITZ, Circuit Judges.
_________________________________
Leo, Alfonsia, and John Lech (the Lechs) sued the City of Greenwood Village
(the City) and several of its police officers (the officers),1 alleging violations of the
Takings Clause of the Fifth Amendment of the United States Constitution and Article
II, Section 15 of the Colorado Constitution. In support of their Takings Clause
claims, the Lechs alleged the defendants violated their constitutional rights—first by
damaging the Lechs’ Colorado home during an attempt to apprehend a criminal
suspect and later by refusing to compensate the Lechs for this alleged taking. The
district court granted the defendants’ motion for summary judgment, concluding in
relevant part that (1) when a state acts pursuant to its police power, rather than the
power of eminent domain, its actions do not constitute a taking; (2) because the
officers destroyed the Lechs’ home while attempting to enforce the state’s criminal
laws, they acted pursuant to the state’s police power; and (3) any damage to the
Lechs’ home therefore fell outside the ambit of the Takings Clause.
The Lechs appeal, arguing the district court erred in granting the defendants’
motion for summary judgment. In support, they first assert the district court erred in
“draw[ing] a hard line between” the power of eminent domain and the state’s police
power. Aplt. Br. 16. Alternatively, they argue that even if such a “line” exists, the
1
Where appropriate, we refer to the City and the officers collectively as the
defendants.
2
district court erred in ruling that the defendants acted pursuant to the state’s police
power here. Id. For the reasons discussed below, we reject these arguments and
affirm the district court’s order.2
Background
We take the bulk of the following facts from the district court’s order granting
summary judgment to the defendants. In doing so, we view the evidence in the light
most favorable to, and draw all reasonable inferences in favor of, the Lechs.3 See
Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 882 (10th Cir. 2018).
Leo and Alfonsia Lech purchased the home at 4219 South Alton Street in
Greenwood Village, Colorado, for their son, John Lech. At the time of the relevant
events, John Lech lived at the home with his girlfriend and her nine-year-old son.
On June 3, 2015, officers from the City’s police department responded to a burglar
alarm at the Lechs’ home and learned that Robert Seacat, an armed criminal suspect
who was attempting to evade capture by the Aurora Police Department, was inside.
2
Because we may affirm the district court’s order based solely on its
conclusion that the defendants’ law-enforcement efforts fell within the scope of the
police power (and therefore fell outside the scope of the Takings Clause), we need
not and do not address whether the Lechs’ Takings Clause claims also fail under
what the district court referred to as the “emergency exception” to the Takings
Clause. App. vol. 2, 398.
3
The defendants filed a supplemental appendix that contains, among other
things, documents from the fleeing suspect’s related criminal proceedings. Because
we see no indication that the defendants submitted these documents to the district
court, we decline to consider them. See John Hancock Mut. Life Ins. Co. v. Weisman,
27 F.3d 500, 506 (10th Cir. 1994) (“This court has held that it cannot, in reviewing a
ruling on summary judgment, consider evidence not before the district court.”).
3
Although the nine-year-old son of John Lech’s girlfriend was present at the time of
the break-in, he was able to exit the home safely.
To prevent Seacat from escaping, the officers positioned their vehicles in the
driveway of the Lechs’ home. Seacat then fired a bullet from inside the garage and
struck an officer’s car. At that point, the officers deemed the incident a high-risk,
barricade situation.4 For approximately five hours, negotiators attempted to convince
Seacat to surrender. After these efforts to negotiate proved unsuccessful, officers
employed increasingly aggressive tactics: they fired several rounds of gas munition
into the home, breached the home’s doors with a BearCat armored vehicle so they
could send in a robot to deliver a “throw phone” to Seacat, and used explosives to
create sight lines and points of entry to the home. App. vol. 2, 380. The officers also
sent in a tactical team to apprehend Seacat. But Seacat fired at the officers while they
were inside, requiring them to leave. When even these more aggressive tactics failed
to draw Seacat out, officers used the BearCat to open multiple holes in the home and
again deployed a tactical team to apprehend Seacat.
This time, the tactical team was successful: it managed to disarm Seacat and
take him into custody. But as a result of this 19-hour standoff, the Lechs’ home was
rendered uninhabitable. And although the City offered to help with temporary living
4
According to the police department’s manual, a high-risk situation is one that
involves “[t]he arrest or apprehension of an armed or potentially armed subject where
the likelihood of armed resistance is high.” Supp. App. vol. 1, 27. A barricade
situation involves a “standoff created by an armed or potentially armed suspect . . .
who is refusing to comply with police demands for surrender.” Id.4
expenses when the Lechs demolished and rebuilt their home, it otherwise denied
liability for the incident and declined to provide any further compensation.
The Lechs then sued the defendants, alleging, in relevant part, that the
defendants violated the Takings Clause of both the United States and Colorado
Constitutions by damaging the Lechs’ home without providing just compensation.
The district court rejected this argument. In doing so, it first distinguished between
the state’s “eminent[-]domain authority, which permits the taking of private property
for public use,” and the state’s “police power, which allows [it] to regulate private
property for the protection of public health, safety, and welfare.” Id. at 390. The
district court then ruled that although a state may “trigger[] the requirement of just
compensation” by exercising the former, a state’s exercise of the latter does not
constitute a taking and is therefore “noncompensable.” Id. at 390–91.
Next, the district court determined that the state’s police power encompasses
“the enforcement of” a state’s “criminal laws.” Id. at 397. And because the officers
damaged the Lechs’ home while attempting to apprehend a criminal suspect, the
district court reasoned, their actions fell within the scope of “the state’s police
powers and not the power of eminent domain.” Id. at 399. Thus, the district court
concluded, any damage the officers caused to the Lechs’ home did not constitute a
taking for purposes of the Takings Clause. Accordingly, it granted the defendants’
motion for summary judgment on the Lechs’ Takings Clause claims.5 The Lechs now
5
The Lechs also alleged various other claims. But they do not challenge the
district court’s resolution of those claims on appeal. Accordingly, we discuss the
5
appeal the district court’s order.
Analysis
The parties agree that the Takings Clause of the Fifth Amendment “requires
compensation when a taking occurs.” Alto Eldorado P’ship v. Cty. of Santa Fe, 634
F.3d 1170, 1174 (10th Cir. 2011); see also U.S. Const. amend. V (providing that
private property shall not “be taken for public use, without just compensation”).6 But
they disagree about whether a taking occurred here. According to the Lechs, the
defendants’ conduct amounts to a taking because (1) the officers physically intruded
upon and ultimately destroyed their home and (2) such a “physical appropriation of
property gives rise to a per se taking.” Aplt. Br. 9. 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. The district court agreed with
the defendants: it concluded that “the tactical decisions that ultimately destroyed [the
Lechs’] home were made pursuant to the state’s police powers and not the power of
Lechs’ remaining claims only to the extent they are relevant to our Takings Clause
analysis.
6
The Colorado Constitution contains similar, albeit not identical, language.
See Colo. Const. art. II, § 15 (“Private property shall not be taken or damaged, for
public or private use, without just compensation.” (emphasis added)). Notably, the
Lechs acknowledged in district court that their rights under the state and federal
Takings Clauses are “essentially the same.” App. vol. 2, 307. The district court
agreed, ruling that because the Colorado Supreme Court has interpreted the state
Takings Clause consistently with the federal Takings Clause, the Lechs’ Takings
Clause claims could “be considered together.” Id. at 389 n.9; cf. Animas Valley Sand
& Gravel, Inc. v. Bd. of Cty. Comm’rs, 38 P.3d 59, 63–64 (Colo. 2001). Because the
Lechs do not challenge this aspect of the district court’s ruling on appeal, we likewise
analyze their state and federal Takings Clause claims collectively.
6
eminent domain.” App. vol. 2, 399. Thus, the district court ruled, the defendants’
conduct did not constitute a taking for purposes of the Taking Clause.
In challenging the district court’s ruling on appeal, the Lechs advance two
general arguments. First, they assert the district court erred in ruling that when the
government acts pursuant to its police power, its actions cannot constitute a taking
for purposes of the Takings Clause. Second, they argue that even assuming the
distinction between the state’s police power and its power of eminent domain is
dispositive of the taking question, the district court erred in concluding that the
officers’ conduct here fell within the scope of the state’s police power merely
because the officers damaged the Lechs’ home while “enforcing the law.” Aplt. Br.
23. In evaluating these arguments, we review de novo the district court’s decision to
grant summary judgment to the defendants, applying the same standard as the district
court. Morden v. XL Specialty Ins., 903 F.3d 1145, 1151 (10th Cir. 2018). “Summary
judgment is appropriate if ‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Llewellyn v. Allstate Home
Loans, Inc., 711 F.3d 1173, 1178 (10th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).
I. Takings, the Police Power, and the Power of Eminent Domain
On appeal, the Lechs first argue the district court erred in drawing a “hard
line” between those actions the government performs pursuant to its power of
eminent domain and those it performs pursuant to its police power. Aplt. Br. 16. The
Lechs do not dispute that the Supreme Court has recognized such a distinction in the
context of regulatory takings. See, e.g., Mugler v. Kansas, 123 U.S. 623, 668–69
7
(1887) (distinguishing between “the state’s power of eminent domain”—under which
“property may not be taken for public use without compensation”—and state’s
“police powers”—which are not “burdened with the condition that the state must
compensate [affected] individual owners for pecuniary losses they may sustain”). But
the Lechs suggest this distinction is not dispositive in the context of physical takings.
Compare Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (describing
physical takings as “direct government appropriation or physical invasion of private
property”), with id. at 539 (describing regulatory takings as “regulatory actions that
are functionally equivalent” to physical takings). Specifically, the Lechs maintain
that any “physical appropriation of [private] property” by the government—whether
committed pursuant to the power of eminent domain or the police power—“gives rise
to a per se taking” and thus requires compensation under the Takings Clause. Aplt.
Br. 9.
But contrary to the Lechs’ position, at least three of our sibling circuits and the
Court of Federal Claims have expressly relied upon the distinction between the
state’s police power and the power of eminent domain in cases involving the
government’s direct physical interference with private property. For instance, in
AmeriSource Corp. v. United States, the Federal Circuit held that no taking occurred
where the government physically seized (and ultimately “rendered worthless”) the
plaintiff’s pharmaceuticals “in connection with [a criminal] investigation” because
“the government seized the pharmaceuticals in order to enforce criminal laws”—an
action the Federal Circuit said fell well “within the bounds of the police power.”
8
525 F.3d 1149, 1150, 1153–54 (Fed. Cir. 2008) (citing Bennis v. Michigan, 516 U.S.
442, 443–44, 452–53 (1996)); see also, e.g., Zitter v. Petruccelli, 744 F. App’x 90,
93, 96 (3d Cir. 2018) (unpublished) (relying on distinction between power of eminent
domain and police power to hold that no taking occurred where officials physically
seized plaintiff’s oysters and oyster-farming equipment (citing Bennis, 516 U.S. at
452)); Johnson v. Manitowoc Cty., 635 F.3d 331, 333–34, 336 (7th Cir. 2011)
(relying on distinction between power of eminent domain and police power to hold
that no taking occurred where authorities physically damaged plaintiff’s home (citing
Bennis, 516 U.S. at 452)); Bachmann v. United States, 134 Fed. Cl. 694, 696 (Fed.
Cl. 2017) (holding that “[w]hen private property is damaged incident to the exercise
of the police power, such damage”—even when physical in nature—“is not a taking
for the public use, because the property has not been altered or turned over for public
benefit” (citing Nat’l Bd. of Young Men’s Christian Ass’ns v. United States, 395 U.S.
85, 92–93 (1969))).
Further, although the Supreme Court has never expressly invoked this
distinction in a case alleging a physical taking, it has implicitly indicated the
distinction applies in this context. See, e.g., Bennis, 516 U.S. at 443–44, 453–54
(rejecting plaintiff’s Takings Clause claim where state court ordered vehicle
“forfeited as a public nuisance” without requiring state to compensate plaintiff, who
shared ownership of vehicle with her husband; reasoning that when state acquires
property “under the exercise of governmental authority other than the power of
eminent domain,” government is not “required to compensate an owner for [that]
9
property” (emphasis added));7 Miller v. Schoene, 276 U.S. 272, 277, 279–80 (1928)
(rejecting constitutional challenge to statute that allowed state to condemn and
destroy “cedar trees infected by cedar rust,” even though statute did not require state
to compensate owners for any trees it destroyed; characterizing statute as valid
“exercise of the police power”).8
And we have likewise implicitly treated the distinction between the police
power and the power of eminent domain as dispositive of the taking question, even
when the interference at issue is physical, rather than regulatory, in nature. For
instance, in Lawmaster v. Ward, we held that the plaintiff failed to establish a
Takings Clause violation where federal agents physically damaged his property—by,
for example, tearing out door jambs and removing pieces of interior trim from his
7
In Bennis, the Court did not expressly characterize the forfeiture action as a
use of the state’s police power. But the Court has previously described forfeitures in
this manner. See, e.g., Van Oster v. Kansas, 272 U.S. 465, 467 (1926) (“[A] state in
the exercise of its police [power] may forfeit property . . . .”). Further, in Bennis, the
Court noted that the state’s actions were motivated by its desire to “deter illegal
activity that contributes to neighborhood deterioration and unsafe streets.” 516 U.S.
at 453. And these are classic markers of the state’s police power. See Medtronic, Inc.
v. Lohr, 518 U.S. 470, 475 (1996) (“Throughout our history the several [s]tates have
exercised their police powers to protect the health and safety of their citizens.”).
Finally, other courts have interpreted Bennis as a police-power case. See, e.g.,
Rhaburn v. United States, 390 F. App’x 987, 988 (Fed. Cir. 2010) (unpublished) (“In
Bennis . . . [t]he Court ruled that no taking had occurred, relying on the nature of the
government power exercised to take the property, i.e., the police power.”).
8
The nature of the plaintiffs’ constitutional claim in Miller is not entirely clear
from the Court’s language. But the Court has repeatedly cited Miller as part of its
Takings Clause jurisprudence. See, e.g., Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 490 (1987) (characterizing Miller as “holding that the
Takings Clause did not require the State of Virginia to compensate the owners of
cedar trees for the value of the trees that the [s]tate had ordered destroyed”).
10
home—while executing a search warrant. 125 F.3d 1341, 1344–46, 1351 (10th Cir.
1997). In doing so, we reasoned that the plaintiff “fail[ed] to allege any facts showing
how his property was taken for public use.” Id. at 1351. And although we did not
expressly note as much in Lawmaster, we have previously equated the state’s power
to “take[] property for public use” with the state’s power of eminent domain, as opposed
to its police power. Lamm v. Volpe, 449 F.2d 1202, 1203 (10th Cir. 1971) (“Police power
should not be confused with eminent domain, in that the former controls the use of
property by the owner for the public good, authorizing its regulation and destruction
without compensation, whereas the latter takes property for public use and compensation
is given for property taken, damaged[,] or destroyed.”).9 Thus, by holding that the
plaintiff in Lawmaster could not show a Fifth Amendment violation because he failed to
show “how his property was taken for public use,” we implicitly held his Takings
Clause claim failed because he could not show the government acted pursuant to its
power of eminent domain, rather than pursuant to its police power. 125 F.3d at 1351;
see also McKenna v. Portman, 538 F. App’x 221, 223–24 (3d Cir. 2013)
(unpublished) (relying in part on Lawmaster to hold that because defendants
exercised state’s police power—rather than power of eminent domain—when they
seized plaintiffs’ property pursuant to search warrant and subsequently damaged it,
defendants “did not engage in a ‘taking’ under the Fifth Amendment”).
9
Notably, although the defendants discuss Lamm in their response brief, the
Lechs do not address it in their reply brief.
11
Nevertheless, despite these persuasive authorities, the Lechs urge us to
disregard the distinction between the police power and the power of eminent domain
in resolving this appeal. In support, they point out that “the Takings Clause ‘was
designed to bar [g]overnment from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.’” Aplt.
Br. 13 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). And they argue
that upholding the district court’s summary-judgment ruling would do just that: it
would force the Lechs to bear alone the cost of actions the defendants undertook in
an effort to “apprehend[] a criminal suspect”—actions that were clearly “for the
benefit of the public” as a whole. Id. at 13, 33.
We do not disagree that the defendants’ actions benefited the public. But as the
Court explained in Mugler, 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. 123 U.S. at
669. Thus, “[a]s unfair as it may seem,” the Takings Clause simply “does not entitle
all aggrieved owners to recompense.” AmeriSource Corp., 525 F.3d at 1152, 1154.
Accordingly, we reject the Lechs’ first broad challenge to the district court’s
ruling and hold that when the state acts pursuant to its police power, rather than the
power of eminent domain, its actions do not constitute a taking for purposes of the
Takings Clause. And we further hold that this distinction remains dispositive in cases
that, like this one, involve the direct physical appropriation or invasion of private
12
property. But that does not end the matter. We must next determine whether, as the
district court ruled, the defendants acted pursuant to the state’s police power here.
II. Law Enforcement and the Police Power
“[T]he police power encompasses ‘the authority to provide for the public health,
safety, and morals.’” Dodger’s Bar & Grill, Inc. v. Johnson Cty. Bd. of Cty. Comm’rs,
32 F.3d 1436, 1441 (10th Cir. 1994) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560,
569 (1991)). The “contours of [the police power] are difficult to discern.” AmeriSource
Corp., 525 F.3d at 1153. But as discussed above, we have described the police power in
contrast to the power of eminent domain: “the former controls the use of property by the
owner for the public good,” while the latter “takes property for public use.” Lamm, 449
F.2d 1203.
The parties have not pointed us to any Tenth Circuit authority that affirmatively
resolves whether the defendants’ conduct here damaged the Lechs’ home for the public
good or for public use. But the Court of Federal Claims has applied this distinction to
facts that are nearly identical to those at issue here. See Bachmann, 134 Fed. Cl. 694. In
Bachmann, the United States Marshals Service “used gunfire, smoke bombs, tear gas, a
battering ram, and a robot to gain entry” to the plaintiffs’ rental property, which—
unbeknownst to the plaintiffs—had become a hideout for a fleeing fugitive. Id. at 695.
The plaintiffs then sued the Marshals Service, alleging the damage to their property
constituted a taking under the Fifth Amendment. Id. The Marshals Service moved to
dismiss, arguing that because it acted under the police power, any damage it caused to the
13
plaintiffs’ property in the process “could not amount to a compensable Fifth Amendment
taking.” Id.
Relying in large part on the Federal Circuit’s decision in AmeriSource, the Court
of Federal Claims agreed with the Marshals Service and granted the motion to dismiss.
Id. at 695–97 (citing AmeriSource, 525 F.3d at 1153–55). Critically, in doing so, it
rejected the plaintiffs’ argument that “when law enforcement officials damage private
property in the process of enforcing criminal law, they . . . take private property for
public use.” Id. at 695. Instead, the court reasoned, the Marshals Service damaged
plaintiffs’ property while “us[ing] perhaps the most traditional function of the police
power: entering property to effectuate an arrest or a seizure.” Id. at 697. Thus, the court
concluded, the plaintiffs did not suffer “a taking of their property for public use,” and
their Fifth Amendment claim failed as a result. Id. at 698.
Notably, in reaching this conclusion, the Court of Federal Claims addressed the
potential distinction between (1) cases in which “law enforcement officials seize and
retain [personal] property as the suspected instrumentality or evidence of a crime” and
(2) cases in which government officials inflict damage to real property that is “incidental
to the exercise of the police power.” Id. at 696–98. And the Lechs attempt to invoke the
same distinction here: they argue that although the police power encompasses the seizure
of personal property that is “caught up in criminal activity” or is “evidence of a
crime,” it does not encompass “the destruction of an entire home in furtherance of
apprehending an uncooperative suspect.” Aplt. Br. 21–22. But like the Court of
Federal Claims, we see no “principled reason” to draw such a distinction. Bachmann,
14
134 Fed. Cl. at 698. Indeed, just like the house at issue in Bachmann, the Lechs’
home “had become instrumental to criminal activity”—it was serving as a hideout for
a fugitive. Id. at 697. Thus, just as in Bachmann, “the damage caused in the course of
arresting a fugitive on plaintiffs’ property was not a taking for public use, but rather
it was an exercise of the police power.” Id.
The Lechs resist this approach, insisting that if we define the police power broadly
enough to encompass conduct like the type at issue here and in Bachmann, it will amount
to a “federally unprecedented expansion” of that power. Aplt. Br. 26. In support, the
Lechs first insist that the police power encompasses only the state’s “power to
establish laws”—as opposed to the power to “enforce[]” those laws. Aplt. Br. 28. Yet
the Lechs expressly concede elsewhere in their brief that the police power encompasses
the power “to make and enforce laws.” Aplt. Br. 30 (emphasis added). And caselaw
supports this concession. See, e.g., AmeriSource Corp., 525 F.3d at 1153 (“The
government’s seizure of property to enforce criminal laws is a traditional exercise of
the police power that does not constitute a ‘public use.’” (emphasis added) (citation
omitted)). Thus, we reject the Lechs’ effort to limit the police power to actions that
establish law, rather than merely enforce it.
We likewise reject the Lechs’ assertion that the police power does not encompass
the state’s ability to seize property from an innocent owner. This argument is not without
support. See, e.g., Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 41–42 (Minn.
1991) (holding that where “innocent third party’s property [was] damaged by the police
in the course of apprehending a suspect,” such damage was inflicted “for a public use”).
15
Nevertheless, despite “the considerable appeal of this position as a matter of policy,” we
join the Federal Circuit in rejecting this argument as a matter of law. AmeriSource Corp.,
525 F.3d at 1154–55 (“[S]o long as the government’s exercise of authority was pursuant
to some power other than eminent domain, then the plaintiff has failed to state a claim for
compensation under the Fifth Amendment. The innocence of the property owner does not
factor into the determination.” (citation omitted) (citing Bennis, 516 U.S. at 453)).
Finally, contrary to the Lechs’ position, we see no indication that defining the
police power broadly enough to encompass the defendants’ actions in this case will
signal to police they may “act with impunity to destroy property” or deprive them of
“reason to limit the destruction” they cause simply “because they will not bear the
burden of the cost and will be absolved of any responsibility” for their actions. Aplt.
Br. 31. This argument overlooks other limits placed on the police power. Indeed,
even the Lechs concede that the police power is subject to the requirements of the
Due Process Clause. See Lambert v. California, 355 U.S. 225, 228 (1957);
AmeriSource, 525 F.3d at 1154 (“As expansive as the police power may be, it is not
without limit. The limits, however, are largely imposed by the Due Process Clause.”);
Lowther v. United States, 480 F.2d 1031, 1033–34 (10th Cir. 1973) (holding that
where government “destroyed appellee’s property without having any authority in
law to do it,” its actions were “contrary to the [D]ue [P]rocess [C]lause of the Fifth
Amendment”). And as the defendants point out, police officers who willfully or
wantonly destroy property may also be subject to tort liability. See, e.g., Colo. Rev.
Stat. § 24-10-118(2)(a).
16
Conclusion
Because (1) the defendants’ law-enforcement actions fell within the scope of
the police power and (2) actions taken pursuant to the police power do not constitute
takings, the defendants are entitled to summary judgment on the Lechs’ Takings
Clause claims. We therefore affirm the district court’s ruling.
Entered for the Court
Nancy L. Moritz
Circuit Judge
17