More than four years after a SWAT team completely destroyed a Greenwood Village home in pursuit of suspected Walmart shoplifter Robert Seacat, who took refuge inside and refused to leave for nearly twenty hours, the Tenth Circuit Court of Appeals has determined how much compensation the community owes homeowner Leo Lech, who filed a lawsuit over the matter.
The Tenth Circuit opinion, issued on October 29 and accessible below, affirms a district court ruling that also rejected Lech's contention that these actions violated the takings clause in the Fifth Amendment of the U.S. Constitution and Article II, Section 15, of the Colorado Constitution. Judge Nancy L. Moritz, writing for the majority, decided otherwise, because, in her view, "the defendants' law-enforcement actions fell within the scope of the police power, and actions taken pursuant to the police power do not constitute takings."
According to the original complaint (also shared below), the incident began on June 3, 2015, when Seacat fled the Greenwood Village Walmart pursued by police. He subsequently holed up at the Lech house, a location apparently chosen at random.
The dwelling's residents were Leo's son, John Lech; Anna Mumzhiyan, John's then-significant other; and her nine-year-old, D.Z., the only person at the home when Seacat entered. The boy managed to get away within minutes — and lucky thing, since all hell broke loose shortly thereafter. The tools used to dislodge Seacat, who was armed and reportedly fired at officers, included 40mm rounds, explosives, tear gas and flash-bang grenades, one of which was so badly thrown that it bounced back toward assorted cops, "forcing them to scatter," the suit notes.
In the end, a total of "68 cold chemical munitions and four hot gas munitions" were launched into the Lech home, by the lawsuit's count, with some of them getting stuck in the walls. Holes were also blasted through the windows and doors even before the deployment of a battering ram.
After Seacat was taken into custody, the complaint maintains, John, Anna and D.Z. were told the home had sustained "some damage." That turned out to be a mammoth understatement. The residence wound up being condemned, and the three lost "all but a few of their personal belongings, including clothing, toys, basic household items, furniture, appliances and other personal effects" such as a treasured ring and a family heirloom that survived World War II in Italy...but not the Greenwood Village SWAT team.
The suit also says the city failed to clear the scene of "projectiles and other hazards," including a "hypodermic needle containing an unknown dark substance" that nearly jabbed Leo Lech. (Another hypo was found later amid "a pile of debris.") Moreover, the lingering chemicals caused nausea and sinus congestion for Lech and company — property inspectors wore hazmat suits when they looked around — and the "two highly trained hunting dogs" kept on the property were so shell-shocked that it's doubtful they'll react to gunfire without freaking out ever again, the plaintiff claims.
Because of these issues, John, Anna and D.Z. had to move to Leo's house in Douglas County, thirty miles south of their old place. The decision forced John to take a new job at a lower salary, since driving to his previous gig downtown would have required a two-hour commute, and D.Z. had to change schools and leave his friends behind, compounding the trauma he'd experienced.
Amid public sympathy for the home's residents, Greenwood Village eventually offered $5,000 to cover Leo's home-insurance deductible fee — an incredibly inadequate sum, the suit contends. But from the beginning, attorney Rachel Maxam, who represented Lech, knew that increasing that figure would be difficult. After all, the Colorado Governmental Immunity Act restricts suits against municipalities such as Greenwood Village, and complaints against individuals can only succeed if they're found to have acted willfully and wantonly — which is why she refiled the suit in U.S. District Court after an initial filing in Arapahoe County Court.
"Our argument is that what happened was a takings under the Fifth Amendment," Maxam told Westword last year. "Both the Colorado Constitution and the U.S. Constitution say the government can't take private property for public use without just compensation."
There's what Maxam characterized as "an emergency exception" to this rule, but the U.S. Supreme Court cases that established it "are pretty extreme circumstances. One big case was the military destroying an oil refinery in the Philippines during World War II because it was about to be seized by enemy Japanese troops."
In Maxam's view, an unstable shoplifter didn't rise to the level at which the exception would be triggered: "This wasn't a great public emergency. This was a guy holed up in a house who refused to come out." But few state courts have weighed in on the concept in connection with a scenario comparable to the one involving Seacat. A case in California basically stuck with the U.S. Supreme Court mandate, she revealed, while judges in Minnesota and Texas "said that whatever your public need to apprehend a criminal, it doesn't make it an exception to the takings clause."
The Tenth Circuit concurred. One section of the ruling reads: "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." Another maintains: "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."
Referencing an 1887 U.S. Supreme Court case known as Mugler v. Kansas, Moritz writes: "We do not disagree that the defendants’ actions benefited the public... 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."
Leo Lech is reportedly considering an appeal to the U.S. Supreme Court — the very body that the Tenth Circuit cited in deciding against him. As for Seacat, he's currently an inmate at the Arkansas Valley Correctional Facility with a parole date of January 21, 2071.
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