J.P. Burleigh, Associate Member, University of Cincinnati Law Review
The Fifth Amendment of the United States Constitution requires a government to pay just compensation if it takes private property. But what if that property is taken or damaged in an emergency? In June 2015, a shoplifter fled a Walmart store in Colorado and broke into the house of Leo and Alfonsia Lech. The Lech family fled, and when city police arrived the shoplifter began shooting from the Lechs’ house. Over five hours, the police laid siege to the house, using guns, explosives, and a tank-like vehicle called a BearCat mounted with a battering ram. By the time the police apprehended the shoplifter, the Lechs’ house was devastated, and the county condemned the building days later. The Lechs went to court to obtain compensation for the loss of their home, but a federal judge told them the city owed nothing because it was acting within its police power. The Tenth Circuit Court of Appeals upheld the judgment this past October.
The Lech family has appealed to the Supreme Court for clarification: is there really no duty to pay just compensation for taken property when a government exercises its police power? If true, this could exempt governments from paying for taken property in many situations, from destroying homes in police raids to commandeering hospitals to fight coronavirus.
Although the federal government can act only through express grants of power in the Constitution, states reserve “police powers” for themselves through the Tenth Amendment. These powers do not refer merely to police officers; rather, they are “nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions.” This is a broad authority to provide for general prosperity as well as public health, safety, and morals. That authority often limits private property rights, from imposing restraints on the reasonable use of property to seizing property for public use.
However, the police power does not give a state unlimited control over private property.  As the Supreme Court explained in Lingle v. Chevron U.S.A., Inc., the Fifth Amendment grants two safeguards against government burdens on private property. First, the Due Process clause imposes outer limits on what is valid government action. Courts considering Due Process challenges ask whether the state action is a reasonable use of the police power. State action that is arbitrary—bearing no relation to the police power—violates Due Process and is always invalid. Second, the Takings clause classifies a state action as a “taking” if it imposes great enough of a burden on private property, under any one of the several tests the Supreme Court has established. Takings include not only direct appropriations but any state action that “goes too far” under Pennsylvania Coal v. Mahon. A taking is invalid unless it is for some public use and the government compensates the property owner. Together the Due Process and Takings clauses create three categories of state action affecting private property: (1) actions which are totally invalid; (2) valid actions that require no compensation; and (3) actions which are valid only if the government pays just compensation.
The Tenth Circuit placed the destruction of the Lech home in the second category—a valid action that did not require compensation—because the city was acting within its police power. In the court’s view, “actions taken pursuant to the police power do not constitute takings.” The Seventh Circuit, the Federal Circuit, and the highest courts of three states have adopted similar rules. In doing so, these courts relied on three Supreme Court cases where government acted within its police powers to regulate private property and was not required to pay just compensation. In Mugler v. Kansas, the Court held that a ban on alcohol production did not constitute a taking of a brewery because the state was merely banning a practice that was “itself a public nuisance.” Under common law, a nuisance is an unreasonable interference with someone else’s use of property. The Court in Mugler emphasized that abating a nuisance was a legitimate use of the police power without compensation, but taking “unoffending property  away from an innocent owner” would not be. Similarly, the Court in Miller v. Schoene upheld Virginia’s actions classifying as public nuisances all trees that were infected with a certain contagious disease and destroying those trees without payment. In Bennis v. Michigan, the Court upheld the use of civil forfeiture, which is the practice of classifying property involved in a crime as a nuisance and confiscating that property. The courts mentioned above followed this line of cases to conclude that state action under the police power can never constitute a taking.
Exempting police power actions from ever being considered a taking is wrong. This mistake stems from a misunderstanding of how takings relate to the police power. Early legal theorists sometimes conceptualized state action over property rights as falling in one of two baskets: police power or eminent domain. Police regulations limited harmful uses of property and thus required no compensation; eminent domain acquired property for public use and thus required compensation. But this is no longer a clear distinction, because state action can both limit a harmful use and promote something useful to the public.
We now understand that takings are a spectrum and include far more than just eminent domain. The classic total appropriation by eminent domain is only one kind of taking; any government action that touches private property can be a taking if it “goes too far.” Eminent domain and the police power are not separate sources of state authority. Rather, eminent domain is a type of taking, which is always exercised under the police power. Consider Berman v. Parker, where the Supreme Court called destroying a blighted neighborhood a “traditional application of the police power” and also a valid use of eminent domain. The police power should be thought of as the outer bounds of government authority, as “all the legislative powers which a state may exercise over its affairs.” The Due Process clause addresses whether state action is a reasonable use of that power. As the Supreme Court explained in Lingle, the question of whether state action requires just compensation is a separate, fact-specific inquiry under the Takings clause. A police power exception to takings goes against Lingle by collapsing the Due Process and Takings clauses into each other.
Further, the courts that have found such an exception misread Supreme Court precedent. Mugler, Miller, and Schoene do not stand for a sweeping police power exception, but rather for an exception for minimizing nuisances. This is the authority of the government to limit unreasonable uses of property that harm others’ enjoyment of their property. Restricting nuisances does not always constitute a taking. But the Supreme Court has explicitly held that “the nuisance exception to the taking guarantee is not [the same as] the police power itself.” Further, the nuisance exception is not ironclad, and restriction of property use can constitute takings in certain situations. Regulation can go too far; there is a realm of state action that falls within the police power but so burdens private property rights that the government must compensate the property owner.
In the Lech case, the Lechs were not using their property as a nuisance; they had done nothing unreasonable or illegal. The officers forcibly destroyed the innocent family’s home, a quintessential example of a taking. The Lechs deserve to be compensated for their loss, but a police power exception to the Takings clause prevents this. If government was exempt from paying just compensation every time it exercised the police power, there would never be just compensation; the exception would swallow the rule. Such an exception would hurt innocent property owners, like the Lech family.
The correct way to analyze potential takings is the path laid out by the Supreme Court in Lingle. The Due Process clause first determines if the state action was a reasonable use of the police power. Only if the action satisfies minimum standards of due process will the courts then look to the Takings Clause, considering the particular facts of the action and its effect on private property rights to decide whether the action is a taking. Some police power actions will constitute takings, and some will not, depending on the existing tests for takings the Supreme Court has established.
The police officers in the Lech case were doing their job to keep the community safe. But in the process they punished not only the guilty shoplifter but the innocent Lech family. The Lechs deserve just compensation for losing their home. The Tenth Circuit made a mistake in concluding that police power actions can never be takings. In doing so, that court went against Supreme Court precedent and did injustice to the Lech family. If this exception stands, governments could simply cite the police power and evade paying the just compensation required by the Fifth Amendment. The Supreme Court should put a stop to this and use the Lech case as an opportunity to clarify that the police power is the outer limit of government authority, not a free pass to disregard the Takings clause of the Fifth Amendment.
 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 310 n.4 (1987) (“The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation,” and applies to the States through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)).
 Lech v. Jackson, 791 Fed. Appx. 711, 713 (2019).
 Lech v. Chief, 2018 U.S. Dist. LEXIS 232533, *26 (D. Colo. 2018).
 Jackson, 791 Fed. Appx. at 719.
 Petition for Writ of Certiorari, Lech v. Jackson (No. 19-1123).
 Hamilton v. Kentucky Distilleris & Warehouse Co., 251 U.S. 146, 156 (1919).
 Thurlow v. Massachusetts, 46 U.S. 504, 583 (1847).
 Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 592 (1906); Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991).
 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992).
 Berman v. Parker, 348 U.S. 26, 31-32 (1954).
 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
 544 U.S. 528, 542-43 (2005).
 Id. at 542; Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926).
 Id. at 548.
 Id. at 537.
 260 U.S. at 415.
 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 314 (1987).
 Lech v. Jackson, 791 Fed. Appx. 719 (2019).
 AmeriSource Corp. v. United States, 525 F.3d 1149 (Fed. Cir. 2008); Johnson v. Manitowoc County, 635 F.3d 331, 336 (7th Cir. 2011); Eggleston v. Pierce County, 64 P.3d 618, 621 (Wash. 2003); Customer Co. v. City of Sacramento, 895 P.2d 900, 908 (Cal. 1995); Kelley v. Story Cty. Sheriff, 611 N.W.2d 475, 480 (Iowa 2000).
 Mugler v. Kansas, 123 U.S. 623, 669 (1887).
 Restatement (Second) of the Law, Torts § 822
 Mugler, 123 U.S. at 669.
 Miller v. Schoene, 276 U.S. 272, 277-78 (1928).
 Bennis v. Michigan, 516 U.S. 442, 452-53 (1996).
 “The state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful.” Eggleston v. Pierce County, 64 P.3d 618, 630 (Wash. 2003) (Sanders, J., dissenting) (quoting Ernst Freud, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 511, 546-47 (1904)).
 Lucas v. S.C. Coastal Council, 505 U.S. 1024 (1992).
 348 U.S. 26, 32-33 (1954).
 Id. at 32.
 Lucas, 505 U.S. at 1010.
 Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 145, (1978)
 Lucas, 505 U.S at 1015.