Innocent But Irrelevant? Pushing Property Rights Even Lower

It’s the end of a long day.  Between your energetic boss and energetic young children, you’re exhausted.  Laying in bed, warm and comfortable, your eyes get heavy.  You’re just about to drift off and you hear it.

“Click! . . . Bump!”  Downstairs you hear something moving.  Something rumbling around.

“It’s just the cat, I’m sure,” you tell yourself.  We’ve all heard bumps in the night while laying in bed.  The vast majority of the time it winds up being nothing.

But what if it wasn’t?  What if it was an actual intruder and an incident ensued between them and law enforcement which destroyed your home?  You did, quite literally, nothing wrong.  You are completely a victim of circumstance, of an extraordinary bout of exceptionally bad luck.  Feeling as if you have been wronged because of the damage to your home, you look for restitution.

What is striking about this scenario is that it is non-fiction.  This drama unfolded in 2015 in South Metro Denver.  The home of Leo Lech, inhabited by his son, son’s girlfriend and son, was the scene of a 19 hour stand off between police and a fleeing burglar which included multiple gas munitions fired into the home, breaching the home’s front door with a battering ram, additional and multiple holes put in the home and deployment of a tactical team which ultimately apprehended the criminal (https://www.washingtonpost.com/nation/2019/10/30/police-blew-up-an-innocent-mans-house-search-an-armed-shoplifter-too-bad-court-rules/).  The damage was so extensive that local authorities declared the home unlivable.

It is true that law enforcement was in a bad situation.  They had an active shooter firing on them for 19 hours with intent to do harm.  Reports of the incident, however, show over 100 law enforcement personnel from multiple Denver-area agencies were present. Overwhelming force was used to blow out walls and make large holes in the exterior of the home so the lone suspect inside could be exposed (https://brobible.com/culture/article/police-destroy-innocent-mans-house-court-damages/).  Lech filed suit to be compensated for the damages.

The Court’s decision:  Sorry Leo.  You didn’t do anything wrong but the police can’t be stopped from doing their jobs.  Besides, you got insurance money . . .

In August of this year, the 10^th Circuit Court in Denver upheld a lower court decision that Lech is not entitled to compensation for his losses as a result of police action.  Extraordinarily, the court ruled that the “innocence of the owner does not factor into the determination.” (https://www.9news.com/article/news/local/greenwood-village-home-destroyed-police-court-ruling/73-54f6f358-3f57-4011-9085-ab0872020016). In other words, a court can declare you an innocent victim and you still loose.

Further, the court ruled police can not be made to consider property destruction when enforcing the law, even the property of someone totally unrelated to the crime being committed.  According to US Circuit Judge Nancy Mortiz, in such situations the state “cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain in the process.” (https://www.courthousenews.com/no-relief-for-family-whose-home-was-destroyed-in-police-raid/).

The apparent Constitutional justification for this ruling is law enforcement did not, technically, “take” Lech’s home.  They just . . . used it . . . I guess, in the “process” of law enforcement.  So, no property rights here under the 5^th Amendment and no need for “just compensation”. (https://www.washingtonpost.com/nation/2019/10/30/police-blew-up-an-innocent-mans-house-search-an-armed-shoplifter-too-bad-court-rules/).

It seems, then, the court considers law enforcement higher than property rights, the latest ruling in a disturbing pattern:

• The 2005 Kelo decision made it “Constitutional” for local governments to invoke eminent domain to seize private property in order to give it to corporations so they can profit and politicians can claim economic development victory. (https://kimmonson.com/featured-articles/property-what-difference-does-it-make/).
• The recent case of Tom’s Diner in Denver raises the possibility that a government can stop a private property owner from selling their property to another private entity to facilitate economic development. (https://kimmonson.com/featured-articles/what-difference-does-property-make-property-rights-abused-in-denver/).
• The Lech case allows local government authorities to destroy private property of legally recognized innocent citizens in order to enforce the law while taking away any hope the innocent property owner will be made whole for damages they suffer.

There are two commonalities in these cases.  First, property rights are trampled at a maximum and not considered a high right at a minimum.  They have been made subservient to economic development (not mentioned in the Constitution) and law enforcement.

Second, in at least Kelo and the Lech case, property rights are pushed lower for the sake of government convenience.  It’s too difficult for law enforcement to be mindful of an innocent person’s property when enforcing the law and too much work for government to facilitate development without forcibly taking an innocent person’s home, so courts have decided to ignore constitutional protections and push our rights lower.  It seems our rights are not that important, according to the judiciary, and need to be violated so government can do its job more easily. We are being made to serve government rather than it serving us.

All this while the Founders gave us the 5^th Amendment for the express purpose of protecting our property rights.  So far the courts have not done well at executing this Constitutional protection.  The judiciary seems to be running up the score against us citizens and our property.  This trend marks a clear deterioration of our property rights, is alarming and hopefully a high court will again reassert them into the lexicon of American life