Leo Lech, Et. Al., v. Chief John A. Jackson, Et. Al.: Appellants' Opening Brief

Appellate Case: 18-1051 Document: 01019984195 Date Filed: 04/30/2018 Page: 1
CASE NO. 18-1051

IN THE UNITED STATE COURT OF APPEALS
FOR THE TENTH CIRCUIT
LEO LECH, et al. )
)
Plaintiffs-Appellants, )
)
v. )
)
CHIEF JOHN A. JACKSON, et al. )
)
Defendants-Appellees. )
On Appeal from the United States District Court

For the District of Colorado
The Honorable Judge Philip A. Brimmer
D.C. No. 1:16-CV-01956-PAB-MJW
APPELLANTS’ OPENING BRIEF
Respectfully submitted,
RACHEL B. MAXAM
Law Office of Rachel B. Maxam, PLLC
1512 Larimer St., Ste. 600
Denver, CO 80202
(720) 526-2928
rachel@maxamlawfirm.com
Attorney for Plaintiffs-Appellants
ORAL ARGUMENT IS REQUESTED
PDF FORMAT ATTACHMENTS ARE INCLUDED
April 30, 2018
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF PRIOR RELATED APPEALS ............................................... viii
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF THE ISSUES...............................................................................1
STATEMENT OF THE CASE ..................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................5
ARGUMENT .............................................................................................................6
I. STANDARD OF REVIEW. ...................................................................................6
II. THE PURPOSE AND CONSTRUCTION OF THE TAKINGS

CLAUSE TO THE U.S. AND COLORADO CONSTITUTIONS. ..........................6
III. THE TOTALITY OF CASE LAW SUPPORTS A TAKING IN THIS
CASE..........................................................................................................................8
A. U.S. Supreme Court Precedent Supports a Taking in this Case

by Physical Intrusion. .......................................................................................... 8
B. Two Similar State Supreme Court Cases and a Federal Court Case
Held That a Taking Occurred When Police Acting Under Their Police
Powers Destroyed Property. ..............................................................................12
C. Other State Cases Support That a Taking Occurred in this Case. ................14
IV. THE STATE AND FEDERAL TAKINGS CLAUSES ARE NOT

LIMITED TO JUST EMINENT DOMAIN AND TAKINGS
PURSUANT TO THE POLICE POWER ARE COMPENSABLE. .......................16
V. THE POLICE POWERS TO SEARCH AND SEIZE PROPERTY

ARE DISTINCT FROM THIS CASE. ....................................................................18
ii
VI. THE “EMERGENCY EXCEPTION” IS INAPPLICABLE TO THIS

CASE AND SHOULD NOT BE EXPANDED TO INCLUDE
SITUATIONS SUCH AS THIS CASE. ..................................................................23
VII. THE U.S. DISTRICT COURT’S RULING IS AN

UNPRECEDENTED AND DANGEROUS EXPANSION OF THE
POLICE POWERS. .................................................................................................26
CONCLUSION ........................................................................................................33
Certificate of Compliance With Type-Volume Limit Typeface
Requirements and Type Style Requirements ...........................................................35
CERTIFICATE OF SERVICE ................................................................................37
iii
TABLE OF AUTHORITIES
Statutes
28 U.S.C. § 1291 ................................................................................................................. 1
28 U.S.C. § 1331 ................................................................................................................. 1
28 U.S.C. § 1367 ........................................................................................................... 1, 31
Other Authorities
Letter from Oliver Wendell Holmes to Harold Laski (Oct. 22, 1922) .............................. 22
Rules
Colo. R. Crim. P. 4 ............................................................................................................ 30
F.R. Crim. P. 41 ................................................................................................................. 30
Constitutional Provisions
Colo. const. art. II, § 15 ....................................................................................................... 7
U.S. Const. amend. V .......................................................................................................... 6
U.S. Supreme Court Cases
Andrus v. Allard, 444 U.S. 51, 65 (1979) .......................................................................... 17
Armstrong v. United States, 364 U.S. 40, 49 (1960) ........................................................... 7
Bennis v. Michigan, 516 U.S. 442, 452 (1996) ................................................................. 19
Bowditch v. City of Boston, 101 U.S. 16, 16 (1879) ............................................. 23, 24, 25
Brown v. Legal Found. of Wash., 538 U.S. 216, 231-32 (2003) ......................................... 7
Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897) .................................................. 7
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–164 (1896) ............................... 7
Hawaii Housing Authority v. Midkiff 467 U.S. 229, 240 (1984) ...................................... 17
Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2427 (2015) ..................................................... 9
iv
Johnson v. Manitowoc Cty., 635 F.3d 331, 333 (7th Cir. 2011) ....................................... 19
Kelo v. City of New London, 545 U.S. 469, 479-480 (2005) .............................................. 7
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) .............. 9, 10
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027–28 (1992) ...................................... 18
Mitchell v. Harmony, 54 U.S. 115, 135 (1851) ................................................................. 24
Mugler v. Kansas, 123 U.S. 623 (1887) ...................................................................... 28, 29
Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017) ....................................................... 16, 17
Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)) ..................................................... 17
Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978) ... 10, 17, 20
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) ............................... 13, 18, 33
Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166 (1871)............................. 10
Tahoe–Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S.
302, 321 (2002) .............................................................................................................. 16
United States v. Caltex, Inc., 344 U.S. 149, 156 (1952) ................................. 18, 23, 24, 25
Federal Cases
AmeriSource Corp. v. U.S., 525 F. 3d. 1149, 1153-54 (Fed. Cir. 2008) ..................... 19, 31
Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006) ........................................ 6
ClearOne Commc’ns, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 494 F.3d 1238,
1243 (10th Cir. 2007) .......................................................................................................... 6
Jones v. Philadelphia Police Dep't, 57 Fed. Appx. 939, 942 (3d Cir. 2003) .................... 19
Lawmaster v. Ward, 125 F.3d 1341, 1344-45 (10th Cir. 1997) ........................................ 21
Nwagbologu v. Regents of Univ. of New Mexico, 33 Fed. Appx. 449, 451
(10th Cir. 2002) ................................................................................................................... 6
Patty v. United States, 17-817C, 2018 WL 847625, at *1
v
(Fed. Cl. Feb. 14, 2018) ......................................................................................... 13, 20, 21
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999) ................................................ 6
Richard v. U. S., 282 F.2d 901 (Ct. Cl. 1960) ................................................................... 10
TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1378 (Fed. Cir. 2013) ......................... 24
State Cases
Animas Valley Sand & Gravel, Inc. v. Bd. of Cty. Comm'rs of Cty. of La Plata,
38 P.3d 59, 63 (Colo. 2001) .................................................................................... 7, 11, 18
City & Cty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 766
(Colo. 1992) ..................................................................................................... 19, 28, 29, 31
Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 ..................................... 27
Collopy v. Wildlife Comm’n, Dep’t of Nat. Res., 625 P.2d 994, 1001
(Colo. 1981) ................................................................................................................ 15, 18
Customer Co. v. City of Sacramento, 895 P.2d 900, 927 (Cal. 1995) ............... 8, 26, 27, 29
Eggleston v. Pierce Cnty., 64 P.3d 618, 625 (Wash. 2003) ........................................ 15, 19
Kelley v. Story Cnty. Sheriff, 611 N.W.2d 475, 480 (Iowa 2000) ................... 15, 21, 22, 31
Krupp v. Breckenridge Sanitation Dist., 19 P.3d 687, 695 (Colo. 2001) ............................ 7
McCoy v. Sanders, 148 S.E.2d 902, 903 (Ga. App. 1966) ................................................ 22
Scott v. Cty. of Custer, 178 P.3d 1240, 1244 (Colo. App. 2007) ...................................... 11
Simmons v. Loose, 13 A.3d 366, 389 (N.J. Super. Ct. App. Div. 2011) ........................... 15
Srb v. Bd. of Cnty. Comm'rs, 43 Colo.App. 14, 18 (1979) ................................................ 16
State Dep't of Highways, Div. of Highways v. Davis, 626 P.2d 661, 664 (Colo. 1981) .. 15,
18
Steele v. City of Houston, 603 S.W. 2d 786, 789 (Tex. 1980) ................................ 8, 12, 13
vi
Sullivant v. City of Oklahoma City, 940 P.2d 220, 225–26 (Okla. 1997) ......................... 14
Town of Dillon v. Yacht Club Condominiums Home Owners Ass'n,
325 P.3d 1032 (Colo. 2014) .............................................................................................. 28
Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 921 (Colo.1993) ... 11
Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 296-97 ......................................... 28
Wallace v. City of Atl. City, 608 A.2d 480 (N.J. Super. Ct. Law Div. 1992) .................... 14
Wegner v. Milwaukee Mut. Ins. Co. 479 N.W. 2d 38, 42 (Minn. 1991) ................. 7, 12, 13
Young v. Larimer Cty. Sheriff's Office, 356 P.3d 939, 943 (Colo. App. 2014) ........... 16, 19
vii
STATEMENT OF PRIOR RELATED APPEALS
Pursuant to Rule 28.2(C)(1) of the Rules of Court for the United States Court of
Appeals for the Tenth Circuit, counsel for appellee hereby notifies the Court that no other
appeal in or from the same civil action in the lower court was previously before this or any
other appellate court under the same or a similar title. Additionally, no cases are known to
counsel to be pending in this or any other court that will directly affect this Court’s decision
in the pending appeal.
/s/ Rachel B. Maxam

Rachel B. Maxam
viii
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The U.S. District Court
for the District of Colorado had jurisdiction over this matter pursuant 28 U.S.C. § 1331
because the Plaintiffs asserted a claim under the U.S. Constitution and had supplemental
jurisdiction over the Plaintiffs’ claims under the Colorado state law pursuant to 28 U.S.C.
§ 1367. An order ruling on the summary judgment motions was entered on January 8, 2018.
(Aplt. App. at 377) (Attachment 1)1. The final judgment was entered on January 9, 2018.
(Aplt. App. at 409). (Attachment 2). The notice of appeal was timely filed in accordance
with Rule 4(b)(1), F.R.A.P., on February 8, 2018.
STATEMENT OF THE ISSUES
1. Whether the U.S. District Court properly granted summary judgment in favor of the
Defendants on the grounds that because the Defendants destroyed the Plaintiffs’
property pursuant to their police powers, no just compensation is due under the Takings
Clauses of the U.S. Constitution and Colorado Constitution.
STATEMENT OF THE CASE
This case arises out of the destruction of Plaintiffs’ home by police attempting to
apprehend a criminal suspect (the “Incident”). Plaintiffs Leo and Alfonsina Lech owned a
home located at 4219 S. Alton Street, Greenwood Village, Colorado, which they purchased
in 2013 (the “Lech Home”). Aplt. App. at 378. Plaintiff John Lech was a resident and
tenant of the Lech Home, along with his then-girlfriend and her son. Id.
1
Attachments 1 and 2 are paginated identically to the same documents in the appellate appendix
for the Court’s convenience.
1
In the afternoon of June 3, 2015, an officer was dispatched to a local Walmart to
assist in a shoplifting investigation. Id. However, after the officer confronted the shoplifting
suspect, Robert Seacat (“Seacat”), Seacat fled the scene. Id. At approximately 1:54 p.m.,
the Greenwood Village Police Department (“GVPD”) responded to an alarm triggered at
the Lech Home, which Seacat had unlawfully entered in fleeing police. Aplt. App. at 38;
379; 398. Officers positioned their vehicles in the driveway to block any attempt by Seacat
to leave in a vehicle. Aplt. App. at 379. As one officer was getting out of his car, a bullet
fired from inside the garage went through the garage door and struck the car’s hood. Id.
Shortly thereafter, Commander Dustin Varney of the GVPD arrived on scene and
assumed the role of incident commander. Aplt. App. at 379. As incident commander,
Commander Varney was directly in charge of deploying resources and managing events
during the Incident. Id. Officers from the Aurora Police Department, Arapahoe County
Sheriff’s Office, and Douglas County Sheriff’s Office assisted with Incident and provided
equipment. Aplt. App. at 65. Officers negotiated with Seacat on his cell phone until 6:28
p.m., approximately 4 hours into the Incident, before shutting his cell phone. Aplt. App. at
261; 380. During this 4-hour time period, Seacat stated that he “would come out and that
he just wanted time” and that he “did not want to hurt anyone.” Aplt. App. at 250. Shortly
before his cell phone was shut off, Seacat stated that he was “almost ready to come out,”
and the conversation was described as “calm and positive.” Aplt. App. at 253; 261.
At 7:11 p.m. with no sightings of the dormant suspect, officers launched two 40mm
At 7:35 p.m. officers breached the front and rear doors of the Lech Home using a BearCat
armored vehicle and explosives to create an entry/exit point for a tactical team and to try
2
to deliver a robot and throw phone. Aplt. App. at 67; 265; 380. Over three hours later, at
approximately 10:40 p.m., a SWAT team entered the residence on the bottom floor. Aplt.
App. at 67-68; 253; 380. As the officers attempted to reach the second floor, they heard
gun shots and exited the Lech Home. Aplt. App. at 253-54; 381. At 1:46 a.m. and 5:14 a.m.
on June 4, 2015, respectively, officers used explosives to open up holes in the kitchen area
and master bedroom area above the garage for the purpose of locating Seacat and limiting
his movement. Aplt. App. at 68; 262; 381. At 7:20 a.m., a plan to tear open the Lech Home
was initiated because Seacat had “demonstrated he had no intentions of giving up and he
was committed to not surrendering…” Aplt. App. at 69; 265; 381. Officers then used boom
ram on a Bearcat armored vehicle to tear open holes in the home in an effort to locate
Seacat, make him feel exposed, and so snipers could shoot into the home. Aplt. App. at
382. Defendant Commander Varney instructed the officers to “take as much of the building
as needed without making the roof fall in.” Aplt. App. at 381. At approximately 8:45 a.m.,
approximately 19 hours after Seacat first entered the Lech Home, a SWAT team entered
the Lech Home, located Seacat, and took him into custody. Aplt. App. at 266; 382. Over
the course of the Incident, at least 135 munitions (tear gas, flash-bang grenades, 40mm
rounds) were used. Aplt. App. at 290; 311-15.
By the end of the Incident, giant holes were blown in the Lech Home in nearly every
window and doorway and the interior of the house was a mess of damage and debris from
the battering rams and explosives. Aplt. App. at 289; 309-10. As a result of the actions of
officers, the Lech home was rendered uninhabitable. Aplt. App. at 382. The Lech Home
was declared “unsafe to occupy” by the City’s Building Inspector due to structural integrity
3
issues. Aplt. App. at 40; 290; 329. The Lech Home had to be demolished and rebuilt
because it was declared a “total loss.” Aplt. App. at 290; 317-18; 329.
The City offered the Plaintiffs $5,000 in compensation to “help with their temporary
living situation” as a “gesture of good faith.” Aplt. App. at 45; 382. Defendants deny they
are responsible for providing Plaintiffs with any further compensation. Aplt. App. at 382.
The Defendants assert that the actions during the Incident which resulted in the destruction
of the Lech Home were taken to “ensure the safety of all citizens, officers and the
individuals involved.” Aplt. App. at 291; 322; 329.
Plaintiffs filed a first amended complaint asserting violations of the state and federal
constitutions as well as tort claims. Aplt. App. at 26-35. Plaintiffs and Defendants each
filed motions for summary judgment on Plaintiffs’ state and federal constitutional claims.
Aplt. App. at 59-94; 288-308. The facts concerning the actions of police taken during the
Incident are not disputed. The U.S. District Court for Colorado ruled in favor of the
Defendants on Plaintiffs’ constitutional claims. The court held that because the Defendants
had acted pursuant to their police powers, the Plaintiffs were not entitled to compensation
under the Takings Clauses of the Colorado and U.S. Constitutions. Aplt. App. at 399. As
the U.S. District Court notes, neither the Colorado courts applying the Colorado
Constitution nor the courts in this circuit applying the federal constitution have addressed
the precise issue presented in this case – whether damage to property caused by law
enforcement’s efforts to apprehend a suspect barricaded inside an innocent third party’s
home constitutes a taking without just compensation. Aplt. App. at 391.
4
SUMMARY OF THE ARGUMENT
The Lechs should be entitled to just compensation for the destruction of their home
by police for the public good in apprehending as a suspect. The entire purpose of the
Takings Clauses to the U.S. and Colorado Constitutions is to provide just compensation
property owners when their property is taken by the government for a public purpose. The
underlying principle is that some people should not be forced to bear burdens, which in all
fairness and justice, should be borne by the public as a whole.
Here, there was a taking of the Lechs property when the Defendants physically
intruded on the property to destroy it. The Lechs most basic rights to use, possess, and
dispose of their property was infringed upon. The fact that the Defendants here acted
pursuant to their police powers to “enforce the law” does not absolve them of the duty of
just compensation under the Takings Clauses. The courts have long tempered the limits of
the police powers where it deprives the owner of the beneficial use of the property. While
there are exceptions to the duty of just compensation under the Takings Clauses, those
exceptions are narrow and inapplicable to the case here. The U.S. District Court’s holding
that the Lechs are not entitled to just compensation under the Takings Clauses because the
Defendants acted pursuant to their police powers to “enforce the law” is a federally
unprecedented and dangerous expansion of the police powers. Accordingly, this Court
should reverse the U.S. District Court’s decision.
5
ARGUMENT
I. STANDARD OF REVIEW.
Appellate courts review a district court’s grant of summary judgment de novo,
applying the same legal standards to be used by the district court. Carpenter v. Boeing Co.,
456 F.3d 1183, 1192 (10th Cir. 2006); Perry v. Woodward, 199 F.3d 1126, 1131 (10th
Cir.1999). “Under this standard, this court examines the record to determine whether any
genuine issue of material fact is in dispute. We construe the factual record and reasonable
inferences therefrom in the light most favorable to the nonmoving party. If there are no
material issues of fact in dispute, this court determines whether the district court correctly
applied the substantive law…[reviewing] the district court’s conclusions of law de novo.”
Nwagbologu v. Regents of Univ. of New Mexico, 33 Fed. Appx. 449, 451 (10th Cir. 2002)
(quoting 199 F.3d at 1131). Likewise, the appellate court reviews the district court’s
interpretation and determinations of state law de novo when the state’s highest court has
not addressed the issue presented. ClearOne Commc’ns, Inc. v. Nat’l Union Fire Ins. Co.
of Pittsburgh, 494 F.3d 1238, 1243 (10th Cir. 2007).
II. THE PURPOSE AND CONSTRUCTION OF THE TAKINGS CLAUSE TO

THE U.S. AND COLORADO CONSTITUTIONS.
The Takings Clause of the U.S. Constitution provides that “private property [shall
not] be taken for public use, without just compensation.” U.S. Const. amend. V. Similarly,
the Colorado Constitution provides that “[p]rivate property shall not be taken or damaged,
6
for public or private use, without just compensation.” Colo. const. art. II, § 15. The Takings
Clause of the U.S. Constitution is applicable to the states through the Fourteenth
Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).
An unconstitutional taking consists of two components: taking of private property
for public use and subsequent denial of just compensation. The Takings Clause requires
the government to have a public purpose to justify taking property from others and that it
compensate those from whom the property is taken. See Kelo v. City of New London, 545
U.S. 469, 479-480 (2005) (describing public use requirement); Brown v. Legal Found. of
Wash., 538 U.S. 216, 231-32 (2003) (setting forth two components of Takings Clause).
“Public use” is an evolving definition and the Court, “has embraced the broader and more
natural interpretation of public use as ‘public purpose.’” See 545 U.S. at 479-480 (citing
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–164 (1896).
At the core of the compensation requirement is the principle that government should
not be permitted to “forc[e] some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.” Armstrong v. United
States, 364 U.S. 40, 49 (1960) (emphasis added). Colorado state law and other state law
echoes this principle of the Takings Clause. See e.g., Animas Valley Sand & Gravel, Inc.
v. Bd. of Cty. Comm'rs of Cty. of La Plata, 38 P.3d 59, 63 (Colo. 2001); Krupp v.
Breckenridge Sanitation Dist., 19 P.3d 687, 695 (Colo. 2001); Wegner v. Milwaukee Mut.
Ins. Co. 479 N.W. 2d 38, 42 (Minn. 1991) (“At its most basic level, the issue [of whether
or not the destruction of property by police to apprehend a suspect constitutes a taking] is
whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good
7
of the public”); Steele v. City of Houston, 603 S.W. 2d 786, 789 (Tex. 1980); Customer Co.
v. City of Sacramento, 895 P.2d 900, 927 (Cal. 1995) (J. Baxter, dissenting).
Here, property was taken through the destruction of the Lech Home for a public
purpose: to apprehend an armed suspect who had broken the law to “ensure the safety of
all citizens, officers and the individuals involved.” Aplt. App. at 291; 322; 329. No
compensation was paid to the Lechs for the sacrifice of their home for the public good. The
Lechs should not be forced to bear the entire cost and burden of an action taken for the
good of the public as a whole. Denial of just compensation to the Lechs subverts the very
purpose and the heart of the Takings Clause as evidenced by its plain language: that just
compensation must be made when private property is taken for public use.
III. THE TOTALITY OF CASE LAW SUPPORTS A TAKING IN THIS CASE.
In ruling on summary judgment in this case the U.S. District Court chose to favor a
California Supreme Court ruling and rejected more voluminous law that supports
Plaintiffs’ position. However, U.S. Supreme Court decisions, as well as the totality of other
state and federal cases, support that a taking occurred in this case.
A. U.S. Supreme Court Precedent Supports a Taking in this Case by Physical

Intrusion.
The U.S. Supreme Court precedent supports a taking in this case by physical
intrusion. The U.S. Supreme Court has drawn a distinction between a physical or per se
taking and other types of takings. “[W]e have long considered a physical intrusion by
government to be a property restriction of an unusually serious character for the purposes
of the Takings Clause.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
8
426 (1982) (holding physical occupation of plaintiff’s property by installing cable lines
constituted a taking notwithstanding the fact that it might be within the state’s police power
and that the physical invasion was minimal). “[P]rotection [under the Takings Clause is]
justified not only by history, but also because [s]uch an appropriation is perhaps the most
serious form of invasion of an owner’s property interests…” Horne v. Dep’t of Agric., 135
S. Ct. 2419, 2427 (2015) (internal quotation marks omitted).
Here, there was a physical intrusion by the Defendants on the Lechs’ property. The
physical intrusion was accomplished by using explosives, chemical munitions (tear gas and
flash-bang grenades), and boom ram on a Bearcat armored vehicle to blow open and tear
holes in the Lech Home. Aplt. App. at 290; 311-15; 381. The intrusion resulted in the
destruction of the Lech Home, rendering it uninhabitable. Aplt. App. at 382. As the U.S.
Supreme Court states in Loretto, the Defendants’ actions infringed on the most basic nature
of the right to property: the right “to possess, use and dispose of it.” 458 U.S. 419 at 435.
The Lechs could not use the home nor sell the home for use. The Lech Home was so
extensively damaged that it had to be demolished. Aplt. App. at 290; 317-18; 329. The
Defendants’ justifications that it was for “safety, morals, health and general welfare of the
public” matters not. A physical appropriation of property gives rise to a per se taking
without regard to other factors, such as the claimed public benefit. 135 S. Ct. 2419 at 2427.
Loretto sets forth a multi-factor balancing test based on Takings Clause precedent
for evaluating whether a taking has occurred: “takings questions should be resolved
through ‘essentially ad hoc, factual inquiries’ into such factors as the character of the
governmental action, its economic impact, and its interference with reasonable investment-
9
backed expectations. 458 U.S. at 444 (quoting Penn Central Transportation Co. v. New
York City, 438 U.S. 104, 124 (1978)). Evaluating this case under the standard set forth in
Loretto, there was definitively a taking. First, the character of the governmental action
supports a taking. “A ‘taking’ may more readily be found when the interference with
property can be characterized as a physical invasion by government, than when interference
arises from some public program…” 458 U.S. at 426 (quoting 438 U.S. at 124). The
Defendants physical intruded on the Lechs’ property to cause its destruction. It was a taking
arising from “some public program.” Second, the economic impact on the owner was
extreme – the Lechs lost an entire home. Third, the Lechs’ lost their investment of
purchasing the home in 2013 when interest rates were low and the considerable
appreciation of the home in the booming Denver real estate market between 2013 and 2015
when the home was destroyed. If the minimal intrusion of cable lines constituted a physical
taking in Loretto, the physical intrusion in this case certainly constitutes a taking.
Other types of government action pursuant to the entity’s police powers have been
held to constitute a physical taking when the action destroyed practical possession and use
of the property. See e.g., Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166
(1871) (holding that defendant’s construction of a dam which permanently flooded
plaintiff’s property constituted a taking as involving “a physical invasion of the real estate
of the private owner, and a practical ouster of his possession”); Richard v. U. S., 282 F.2d
901 (Ct. Cl. 1960) (holding that “all that plaintiff need show is that the taking of its land
was the natural and probable consequence of the acts of [government]” in ruling that
government’s construction of canal that resulted in flooding and destruction of plaintiff’s
10
land was a compensable taking). The Colorado Supreme Court has also embraced the idea
that a regulation or physical invasion of property as a consequence of governmental action
which destroys use of the property is a taking. Animas, 38 P.3d at 63 (“A taking may be
affected by the government's physical occupation of the land or by regulation”). “For a
governmental action to result in a taking, the consequence of the action which is alleged to
be a taking must be at least a direct, natural or probable result of that action.” Scott v. Cty.
of Custer, 178 P.3d 1240, 1244 (Colo. App. 2007) (quoting Trinity Broad. of Denver, Inc.
v. City of Westminster, 848 P.2d 916, 921 (Colo.1993).
In Pumpelly, Richard, and Scott, the governmental entity did not take physical
intrusion on the land in the sense that it completely ousted the owner, but its actions had
the consequence of destroying the use, or intended use, of the property. The situation in
this case is analogous. The Defendants destroyed the use of the Lechs’ property – the use
of their home. The Defendants physical invasion of the home resulted in a practical ouster
of possession, use, and enjoyment of the Lechs’ home. For all intents and purposes, the
physical intrusion was a permanent invasion, like flooding destroying the use of land,
because it destroyed the use of the Lech Home. The natural and probable consequence of
the acts of Defendants in using explosives, chemical munitions and a Bearcat armored
vehicle to tear open the Lech Home was the destruction of the Lech Home.
The physical intrusion by the Defendants on the Lechs’ property was of the most
serious character under the Takings Clause as an invasion of the Lechs’ most basic property
rights. The Defendants destroyed practical possession, use, and enjoyment of not just
11
property, but the Lechs’ home. Accordingly, the Defendants’ actions in this case constitute
a physical or per se taking and just compensation is due under the Takings Clause.
B. Two Similar State Supreme Court Cases and a Federal Court Case Held That
a Taking Occurred When Police Acting Under Their Police Powers Destroyed
Property.
Two state supreme court cases involving strikingly similar facts to the case here
held that the damage or destruction of property to further the apprehension of a suspect was
a compensable taking under the state takings clauses. Wegner, 479 N.W.2d 38 (holding a
taking occurred under the Minnesota Constitution); Steele, 603 S.W.2d 786 (holding taking
occurred under the Texas Constitution). The courts held that a taking occurred despite the
fact that law enforcement was acting pursuant to their police powers to enforce the law.
In Steele, the police burned down an innocent couple’s home in furtherance of
apprehending three escaped convicts who had hidden in the home. Id. In Wegner, the police
chased a felony suspect who had fired shots at the police into an innocent person’s home.
479 N.W.2d at 39. The suspect refused to come out, so police launched tear gas into the
home in an effort to induce the suspect to come out and eventually sent in a SWAT team
to capture the suspect. Id.
Both courts held that the duty of compensation was not excused by labeling the
taking as an exercise of police power. 479 N.W.2d at 40; 603 S.W.2d at 789. The Court in
Steele held that the innocent homeowners were entitled to compensation, despite the fact
that the destruction of property as a means to apprehend escapees is a classic example of
the exercise of the police power for the safety of the public. 603 S.W.2d at 793. The court
12
in Wegner decided the case on the plain language of the Minnesota takings clause rather
than distinguishing between the police power and eminent domain. 479 N.W.2d at 40.
Since the U.S. District Court’s summary judgment ruling in this case, a federal court
has adjudicated a similar case involving when and if an exercise of police powers incident
to enforcing the law becomes a taking. In Patty, the plaintiffs’ truck was damaged when a
DEA agent using it for drug enforcement without their knowledge or permission, ended up
in a firefight. Patty v. United States, 17-817C, 2018 WL 847625, at *1 (Fed. Cl. Feb. 14,
2018). The defendant argued that no compensation was due because the government was
acting within its police power, but the Court rejected this argument, noting the danger of
how far “the police power can be stretched” as the U.S. Supreme Court has warned: “When
this seemingly absolute protection [of the Takings Clause] is found to be qualified by the
police power, the natural tendency of human nature is to extend the qualification more and
more until at last private property disappears.” Id. at *2 (quoting Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922)).
In reaching their holdings that a taking occurred, the courts in Steele, Wegner, and
Patty all point to the basic principle of the Takings Clause articulated in Armstrong: that
the Takings Clause “was designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.” 2018 WL 847625, at *5; 479 N.W.2d at 40; 603 S.W.2d at 789 (quoting
Armstrong, supra).
The fact that the Defendants here ostensibly acted pursuant to their police powers
to enforce the law in apprehending a criminal suspect does not excuse them from the
13
requirement to pay just compensation under the Takings Clause. The extension of the
police powers to include destroying property just to apprehend a suspect without just
compensation as held by the U.S. District Court is a dangerous expansion of the police
powers of which the U.S. Supreme Court warned would destroy property rights. This
Court, like the courts in Patty, Wegner, and Steele, should reject such a broad expansion of
the police powers and embrace the fundamental purpose of the Takings Clause: to
compensate owners whose property is taken for a public purpose as the Defendants did
here to further apprehension of a suspect.
C. Other State Cases Support That a Taking Occurred in this Case.
Other state courts have noted that the exercise of police powers is not without limits
and can constitute a taking. The Oklahoma Supreme Court stated, “[the] police power does
not necessarily preclude compensation for property taken or damaged…but there must be
sufficient interference with landowner’s use and enjoyment to constitute a taking.”
Sullivant v. City of Oklahoma City, 940 P.2d 220, 225–26 (Okla. 1997); Wallace v. City of
Atl. City, 608 A.2d 480 (N.J. Super. Ct. Law Div. 1992) (Innocent landlord whose property
was damaged during no-knock search warrant was entitled to compensation under theory
of physical taking and should not bear the sole financial burden for an undertaking for the
benefit of society as a whole).
At least three cases cited by the U.S. District Court in support of its holding that the
police powers authorized the Defendants to destroy the Lech Home without compensation
actually support the Lechs’ position that there was a taking. In Kelley, the Court states that
“the exercise of police power may, in some situations, amount to a taking of private
14
property if it deprives a property owner of the substantial use and enjoyment of one’s
property.” Kelley v. Story Cnty. Sheriff, 611 N.W.2d 475, 480 (Iowa 2000) (internal
citations omitted); See also Simmons v. Loose, 13 A.3d 366, 389 (N.J. Super. Ct. App. Div.
2011). “The point at which police power becomes so oppressive that it results in a taking
is determined on a case-by-case basis.” Id. (discussing multi-factor test set forth in Loretto).
While holding that property damage incident to property being taken by a search warrant
as evidence of a crime was not a taking, the court in Eggleston states that, “[a] harder
question is whether the destruction of property by police activity other than collecting
evidence pursuant to a warrant could ever be a compensable taking. Eggleston v. Pierce
Cnty., 64 P.3d 618, 625 (Wash. 2003) (emphasis added). As the U.S. District Court notes,
Davis also stated that difference between a violation of just compensation clause and valid
exercise of the state’s police power lies in the degree of deprivation. Aplt. App. at 396
(citing State Dep't of Highways, Div. of Highways v. Davis, 626 P.2d 661, 664 (Colo. 1981)
(citing Collopy v. Wildlife Comm’n, Dep’t of Nat. Res., 625 P.2d 994, 1001 (Colo. 1981).
Contrary to the assertion of the U.S. District Court many other state case support
that the exercise of the police powers in this circumstance is a compensable taking. Here,
the Lechs were deprived of substantial use and enjoyment of their property. The destruction
of the Lech Home was an extreme degree of deprivation of their property rights.
Accordingly, the exercise of the police power in this instance was so oppressive in
destroying their home as to result in a taking subject to the just compensation requirement.
15
IV. THE STATE AND FEDERAL TAKINGS CLAUSES ARE NOT LIMITED
TO JUST EMINENT DOMAIN AND TAKINGS PURSUANT TO THE
POLICE POWER ARE COMPENSABLE.
The Takings Clauses of the U.S. and Colorado Constitutions are not just limited to
eminent domain. The U.S. District Court incorrectly states that the “Takings Clause is
concerned with the government’s power of eminent domain.” Aplt. App. at 390. The court
draws a hard line between eminent domain, a compensable taking, and actions under the
police powers, which it asserts is not compensable. Aplt. App. at 390-91.
The plain language of Takings Clauses of the U.S. and Colorado Constitutions do
not state that there must be an action taken pursuant to an entity’s power of eminent in for
just compensation to be due. Nor does U.S. Supreme Court or Colorado precedent support
such a hardline distinction between actions taken pursuant to an entity’s police powers as
being non-compensable and actions taken pursuant to the entity’s power of eminent
domain. Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017) (“The plain language of the
Takings Clause requires the payment of compensation whenever the government acquires
private property for a public purpose”) (citing Tahoe–Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002)); Young v. Larimer Cty.
Sheriff's Office, 356 P.3d 939, 943 (Colo. App. 2014) (The Takings Clause “is not limited
in application to condemnation proceedings,” but “is remedial in nature and must be
liberally construed”) (quoting Srb v. Bd. of Cnty. Comm'rs, 43 Colo.App. 14, 18 (1979)).
Contrary to the position of the U.S. District Court that the taking of property
pursuant to the police powers is non-compensable, the U.S. Supreme Court has ruled that
takings pursuant to the police powers are a compensable taking. Regulatory takings claims
16
arise out the exercise of the police powers for the public health, safety and welfare and
have long been examined under the Takings Clause and may be invalid if they go too far
in damaging the value, use, or physical integrity of individual property without offering its
owner payment for the loss. Contrary the U.S. District Court’s Order, the requirement of
compensation is not eliminated simply because the government purports to act under the
police power. The power of government to take with compensation for “public use” is
“coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority
v. Midkiff 467 U.S. 229, 240 (1984) (emphasis added).
The U.S. Supreme Court has never drawn a line between the power of eminent
domain as compensable and the actions under the police powers as non-compensable. In
fact, the Court has held that exercises of the police powers are compensable when the
government destroyed all beneficial use of the property as occurred here with the
destruction of the Lech Home. “’[W]ith certain qualifications…a regulation which ‘denies
all economically beneficial or product use of land’ will require compensation under the
Takings Clause.” Murr, 137 S. Ct. at 1942 (quoting Palazzolo v. Rhode Island, 533 U.S.
606, 617 (2001). Even when a regulation impedes the use of property without depriving
the owner of all economically beneficial use, a taking still may be found based on a
“complex of factors” including the impact on the plaintiff, the extent to which there has
been an interference with distinct investment-backed expectations, and the character of the
governmental action. Id. at 1943. What constitutes a compensable taking is not strictly
defined, fluid, fact specific, and dependent on the degree of interference. See e.g., Andrus
v. Allard, 444 U.S. 51, 65 (1979); Penn Central Transportation Co., 438 U.S. at 124;
17
United States v. Caltex, Inc., 344 U.S. 149, 156 (1952); Pennsylvania Coal Co,, 260 U.S.
at 416; Animas, 38 P.3d at 64; Collopy, 625 P.2d 994 at 1000; Davis, 626 P.2d at 664. The
U.S. Supreme Court has specifically rejected notion of the U.S. District Court that the
government may eliminate all economically valuable use because property is subject to an
implied limitation and must yield to the police power, stating that such a notion is
“inconsistent with the historical compact recorded in the Takings Clause that has become
part of our constitutional culture.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027–28
(1992).
The U.S. Supreme Court and Colorado Supreme Court have not deemed to limit the
right to just compensation under the Takings Clause because the taking was effectuated by
virtue of the government’s police powers. Rather, the courts long tempered the limits of
police powers when it deprives the owner of the beneficial use of the property. Here, the
Defendants actions deprived the Plaintiffs of all beneficial use of the Lech Home. The Lech
Home was declared unsafe, was uninhabitable, and had to be demolished. Aplt. App. at 49;
290; 329; 382. Accordingly, this Court should rule that a taking occurred in this case.
V. THE POLICE POWERS TO SEARCH AND SEIZE PROPERTY ARE

DISTINCT FROM THIS CASE.
The U.S. District Court cites to a number of cases involving the seizure of property
in support of its holding that the destruction of the Lech was a non-compensable exercise
of police powers and not a taking. However, these cases are inapplicable to the case here.
As the U.S. District Court points out, where the government acquires private
property by virtue of some other authority, such as the power to seize evidence of a crime,
18
just compensation is not required. Bennis v. Michigan, 516 U.S. 442, 452 (1996); See e.g.,
City & Cty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 766 (Colo. 1992) (“[A]
valid seizure under criminal law does not constitute a taking for which the owner is entitled
to just compensation”). But, as the Court notes in Young, “This rule applies whether ‘the
property is seized as evidence in a criminal investigation or as the suspected instrumentality
of a crime.’” 356 P.3d 939 at 943.
The cases cited by the U.S. District Court all hold that the seizure of property was
not a compensable taking because the seizure of the property was of evidence of a crime
or because it was implicated in the commission of a crime. Bennis, 516 U.S. at 452 (vehicle
seized in criminal forfeiture proceedings); Johnson v. Manitowoc Cty., 635 F.3d 331, 333
(7th Cir. 2011) (part of concrete in garage removed as homicide evidence); AmeriSource
Corp. v. U.S., 525 F. 3d. 1149, 1153-54 (Fed. Cir. 2008) (drugs seized as evidence in
criminal prosecution); Eggleston, 64 P.3d at 620-21 (two walls removed from residence as
evidence of a crime); Desert Truck Sales, Inc., 837 P.2d 759 (car seized pursuant to statute
on suspicion of auto theft). However, here, the Defendants did not seize the Lech Home
pursuant to “some other authority” as evidence of a crime or subject of criminal forfeiture.
Accordingly, the rulings in these seizure cases are inapplicable to the case here.
One seizure case in the 3rd Circuit stands apart because the court examined this case
under the takings standards set forth in Loretto and concluded that it did not meet the bar
of a taking. In Jones, the police did $500 worth of damage to the plaintiff’s property while
conducting a search. Jones v. Philadelphia Police Dep't, 57 Fed. Appx. 939, 942 (3d Cir.
2003) (holding damage done to building by city during search was not “taking” for
19
purposes of Fifth Amendment, where police caused only $500 in damage, there was no
evidence that building's owner invested in building with expectation it would remain free
of legal searches, and temporary denial of access to building was analogous to denial of
access to crime scene). The Court in Jones examined the case under the multi-factor test
set forth in Loretto, holding that the $500 in damages was not significant under the
“economic impact” prong of Loretto. Id. In considering the “character of the governmental
interference” prong of Loretto, the court notes that a “taking may more readily be found
when the interference with property can be characterized as a physical invasion by the
government…” but holds “notwithstanding this general rule,” that the government’s
actions in this case was so short-lived as to be more like the tort of trespass than the taking
of property. Id. (quoting Penn Central, 438 U.S. at 124).
At least one federal case supports this distinction between the seizure of property
and the taking of unoffending property. In Patty, the court held that the appropriate of the
innocent plaintiffs’ property under the police powers gave rise to taking claim. 2018 WL
847625. The court rejected the idea that seizure cases holding that a seizure of property
pursuant to the police powers is non-compensable are applicable to situations where the
police appropriate and damage an innocent person’s property under their police powers to
enforce the law. Id. at *3. The court in Patty, pointing to U.S. Supreme Court and other
federal precedent, draws a distinction between “government action that merely
appropriates a benefit from unoffending private property and the government seizing
private property that is a nuisance, caught up in criminal activity, or somehow related to an
20
investigation.” Id. at *4. The government chose to use the plaintiffs’ property as “a tool in
a law enforcement operation…” Id. at *3.
The facts are analogous here. The Lech Home was not “seized” because it was a
nuisance, caught up in criminal activity, or related to an investigation. The Lechs were
innocent of any wrongdoing and the home itself was unoffending property. Instead, the
police chose to use it as a tool to ostensible further the apprehension of Seacat.
Accordingly, as the court in Patty points out, the situation here is distinct from other seizure
cases. The duty of just compensation has only been held to not apply where the police act
pursuant to the police powers to seize and retain offending property or property that is
evidence of a crime. The duty of compensation under the Takings Clauses should not be
absolved simply because the police chose to use innocent property to further “enforcing
the law.” The very purpose of the Takings Clauses is to compensate innocent owners when
their property is taken for a public purpose. Exceptions have only been made when the
persons or property involve violations of the law or evidence of a crime. Accordingly, this
Court should decline to extend the police powers to include that property may be destroyed
with just compensation if it furthers “enforcing the law.”
In other cases, the courts held that damage incidental to a search and/or seizure was
not compensable. In Kelley, the police damaged two front doors of a residence during the
execution of a knock-and-announce arrest warrant after the suspect did not respond. Kelley,
611 N.W.2d at 475. In Lawmasters, the police damaged entry doors and left the home in a
state of disarray after executing a search warrant for an illegal machine gun. Lawmaster v.
Ward, 125 F.3d 1341, 1344-45 (10th Cir. 1997) (holding that because plaintiff failed to
21
allege any facts showing how his property was taken for public use in violation of the Fifth
Amendment, plaintiff failed to show how the Agents’ conduct violated his right to be free
from unconstitutional takings). In McCoy, the police drained a pond on plaintiff’s property,
having reason to believe the murderer had thrown the body of his victim in the pond.
McCoy v. Sanders, 148 S.E.2d 902, 903 (Ga. App. 1966). The damage in these cases was
very minor, such as the damage to doors in the execution of a warrant or the draining of a
pond to locate a murder victim, amounting to thousands of dollars. In Kelley, the damages
were minimal enough that the case was originally filed in small claims court. 611 N.W.2d
477. In McCoy, the plaintiff alleged that draining of the pond reduced the value of his
property by $5,000. 148 S.E.2d at 903.
These cases are characterized by what Justice Holmes aptly described as “the petty
larceny of the police power.” Letter from Oliver Wendell Holmes to Harold Laski (Oct.
22, 1922). While thousands of dollars in damage is hardly “petty,” the damage done to
homes to effectuate an arrest warrant or to obtain evidence was minor compared to this
case. The courts in these cases did not contemplate, nor indeed did they need to
contemplate, the destruction of an entire home in furtherance of apprehending an
uncooperative suspect. Applying these seizure cases to expand the police powers to include
the destruction of an innocent person’s home goes far beyond the scope contemplated. To
say that a property owner should bear the entire loss of a home, as opposed to the “petty”
loss of damage to part of the property undermines the purpose of the Takings Clauses.
Unlike these seizure cases, the Lech Home were not seized incident to a crime or as
evidence of a crime. The Lechs were innocent of any wrongdoing and the property was
22
unoffending. Accordingly, these seizure cases are inapplicable to this case. This Court
should not extend the police power to “seize” property incident to a crime to include that
unoffending property can be used as a tool by law enforcement and destroyed because it
furthers “enforcing the law.”
VI. THE “EMERGENCY EXCEPTION” IS INAPPLICABLE TO THIS CASE

AND SHOULD NOT BE EXPANDED TO INCLUDE SITUATIONS SUCH
AS THIS CASE.
The U.S. Supreme Court has recognized the “doctrine of necessity” or an
“emergency exception” to just compensation being due under the Takings Clause. The U.S.
District Court ruled that this “emergency exception” applied in this case. Aplt. App. at 392.
However, the “emergency exception” has been very narrowly construed and is not
applicable to the facts of this case.
The U.S. Supreme Court has applied the “emergency exception” only in very
narrow and extreme cases of “imminent peril” to the entire community. See e.g., Bowditch
v. City of Boston, 101 U.S. 16, 16 (1879)2 (holding that the destruction of building to stop
the spread of a city fire pursuant to a state statute law authorizing the same was not a
takings); Caltex, 344 U.S. 149 (holding that a takings did not occur when the U.S. military
destroyed oil facilities that were about to be seized by enemy Japanese troops and be used
to wage war). The Caltex court reasons that the “necessities of war called for and justified
this…in times of imminent peril – such as when a fire threatens a whole community – the
2
Note that Bowditch was decided eight years after the Great Chicago Fire killed an estimated 300 people,
destroyed roughly 3.3 square miles of Chicago, Illinois and 17,500 buildings, left more than 100,000
residents homeless, and cost $4B. https://en.wikipedia.org/wiki/Great_Chicago_Fire
23
sovereign could, with immunity, destroy the property of a few that the property of many
and the lives of many more could be saved.” 344 U.S. at 154.
The U.S. Supreme Court has consistently held that this doctrine “may be applied
only where there is an imminent danger and actual emergency giving rise to actual
necessity.” TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1378 (Fed. Cir. 2013) (citing
Bowditch, 101 U.S. at 16–19 (emphasizing the need for an imminent danger and an actual
emergency); Caltex, 344 U.S. at 151–56; Mitchell v. Harmony, 54 U.S. 115, 135 (1851)
(for taking during wartime to be justified the “danger must be imminent and impending”
or the “necessity urgent…such as will not admit delay”)).
The facts in this case are distinct from the emergencies presented in precedent cases.
Moreover, the undisputed facts, as identified by the U.S. District Court, do not support a
finding that there was “imminent” and “impending” danger which could only be averted
by the destruction of the Lech Home. Unlike a spreading fire which could lay waste to
entire city, no facts support that if the police had not destroyed the Lech Home, Seacat
would have caused harm to the public. Seacat had not demonstrated any intent to cause
harm to the public, only a desire to avoid being captured by police. Here, the police
destroyed the Lech Home, not to stop an “imminent peril” to the community, but to further
apprehending a suspect who had refused to come out and was hiding in the Lech Home.
Seacat had last discharged a weapon when officers entered the Lech Home at 10:40 p.m.
to attempt to apprehend him. Aplt. App. at 67-68; 253-54; 380-81. But, the police began
using explosives to open up holes in the kitchen area and master bedroom at 1:46 a.m. and
5:14 a.m. and only began using the Bearcat to tear open holes in the home at 7:20 a.m. –
24
hours after not seeing or hearing from Seacat in an attempt to locate and apprehend him.
Aplt. App. at 69; 262; 265. The police destroyed the Lech Home not to prevent Seacat from
harming someone, but because Seacat had “demonstrated he had no intentions of giving up
and he was committed to not surrendering…” Aplt. App. at 69; 265; 381. At the time the
police decided to destroy the Lech Home, Seacat did not pose an imminent danger to the
community hiding within the Lech Home. In cases like Bowditch and Caltex, property was
destroyed because otherwise, the fire would have spread to other property or invading
enemy troops would have obtained resources to make war. In these situations, there was
an imminent threat to life and property and there was no other option but to destroy the
property to eliminate the threat. The Lech Home was destroyed for the convenience of the
police, not out of an imminent danger which gave rise to the actual necessity of destroying
the home to extinguish the danger.
In the “emergency exception” holdings, the U.S. Supreme Court reasons that
Takings Clause does not promise that government will make whole all who suffer from the
burden and ravages of war and that emergencies like war and fire are not the fault of the
sovereign, who has no responsibility for causing the need to destroy the property. Caltex,
344 U.S. at 155-56; Bowditch, 101 U.S. at 18. Here, the governmental entity chose to
destroy the Lech Home as the means to accomplish the goal of apprehending Seacat. Unlike
Caltex and Bowditch, the Lech Home was destroyed by the choice of the entity, not because
of some condition out of the control of the government, or indeed anyone, like a fire or
impending occupation by enemy troops. Here, and unlike these “emergency exception”
cases, the police had options other than destroying the Lech Home, such as continuing
25
negotiations with Seacat instead of shutting off his phone, waiting for Seacat to come out,
or sending in a SWAT team. As the dissent in Customer succinctly sums it up, the state
may take private property without compensation “if such action is essential to safeguard
public health, safety or morals.” Customer, 895 P.2d 900, 928 (Cal. 1995) (J. Baxter,
dissenting) (internal citations and quotations omitted). In certain circumstances, however,
the taking of property “is not prompted by so great a necessity as to be justified without
proper compensation…[t]hus…the exercise of police power…cannot extend beyond the
necessities of the case and be made a cloak to destroy constitutional rights…” Id.
The facts of this case do not support that there was an “imminent” and “impending
danger” to the whole community if the police did not destroy the Lech Home. Rather, the
Lech Home was destroyed, ostensibly, because it furthered the apprehension of a suspect
who was hiding in the Lech Home and had refused to come out. The situation in this case
does not come close to the “imminent peril” giving rise to the “actual necessity” to destroy
property contemplated by the “emergency exception” cases where the government had no
choice by to destroy property to avert a grave and immediate threat to the whole
community. The “emergency exception” is inapplicable to this case. The doctrine should
not be expanded to include that an “emergency” requiring the destruction of property arises
because it purportedly facilitates the apprehension of a hiding suspect.
VII. THE U.S. DISTRICT COURT’S RULING IS AN UNPRECEDENTED AND

DANGEROUS EXPANSION OF THE POLICE POWERS.
The U.S. District Court’s ruling is a federally unprecedented expansion of the police
powers. In holding that there was no a compensable taking in this case, the U.S. District
26
Court followed the faulty logic of the California Supreme Court in Customer. However,
the holding in Customer represents a minority interpretation of the Takings Clause and an
unprecedented expansion of the police powers.
In Customer, the facts are analogous to this case and the state takings clause is
functionally identical. The police followed a known armed and dangerous felony suspect
to a store and when confronted by police, the suspect refused to come out. 895 P.2d at 901.
In the course of trying to apprehend the suspect, the police used tear gas and caused
significant damage to the store. Id. The Court held that there was no taking under the
California Constitution’s takings clause because the police acted pursuant to their police
power and under the “emergency exception” to the Takings Clause, no compensation is
required. Id. at 909. The court reached this decision in a narrow 4-3 ruling.
In a scathing dissent, Justice Baxter criticizes the majority’s disregard of
constitutional principles and unprecedented expansion of the “emergency exception.” As
the dissent in Customer points out, the majority’s reasoning is flawed for a number of
reasons. Most importantly because this position was adopted by the U.S. District Court in
this case, the majority’s position that the takings clause only applies to eminent domain or
regulatory taking is fundamentally flawed because nothing in the California takings clause
states or implies that just compensation is due only where traditional eminent domain
proceedings are appropriate. Id. at 926 (J. Baxter, dissenting). As the dissent states, the
plain language of the Takings Clause and the principle articulated in Armstrong, supra
should govern, noting that California law also supports this position. See e.g., Clement v.
State Reclamation Board (1950) 35 Cal.2d 628, 642 (The decisive consideration is whether
27
the owner of the damaged property if uncompensated would contribute more than his
proper share to the public undertaking); Varjabedian v. City of Madera (1977) 20 Cal.3d
285, 296-97 (The task is to determine whether, under the particular circumstances, the
constitutional purpose would be violated by allowing the community at large to escape the
cost of damage its government, acting for the public benefit, has inflicted upon an
individual property owner).
By following Customer, the U.S. District Court has engaged in an unprecedented
expansion of the police power to include that the police may destroy property, if in their
discretion, it further “enforcing the law.” As the U.S. District Court states, municipalities
have broad powers “to establish laws that promote the health, safety, and welfare of
citizens.” Town of Dillon v. Yacht Club Condominiums Home Owners Ass'n, 325 P.3d 1032
(Colo. 2014) (emphasis added) (holding that ordinances were reasonable exercise of town’s
police power). But here, the issue is not an entity’s power to establish laws for health,
safety and welfare, such as establishing criminal laws or regulating unsafe property. The
exercise of the “police power” in this case is distinct from all other cases involving the
exercise of the police powers. It concerns the power not only to establish laws, including
those affecting the use of property, but the power of police to destroy property in
furtherance of “enforcing the law.”
In support of its argument, the U.S. District Court cites to Mugler v. Kansas, 123
U.S. 623 (1887) and Desert Truck Sales, Inc., 837 P.2d 759. Both cases state that police
power can be used to prohibit or control the “use of property”, which is distinct from the
power of eminent domain. Aplt. App. at 390 (emphasis added). In Mugler, the court held
28
that a newly passed law prohibiting the manufacturing of alcoholic beverages which had
the effect of destroying the plaintiff’s intended use of their property for a brewery was a
prohibition of the use of property declared to be injurious to the health, morals or safety of
the public and not a taking. 123 U.S. 623. The court distinguished between the police
powers to prohibit “noxious” use of property, as opposed to the taking of an unoffending
property from an innocent owner and notes that such a prohibition does not disturb the
owner in the control or use of his property for lawful purposes. Id. at 669. In Desert, the
City and County of Denver seized a car on suspicion of auto theft, as it was permitted to
do by statute because the VIN number had been removed. 837 P.2d 759. No precedent
stands for the proposition that the police powers include the power to destroy unoffending
property.
Here, the use of Lech Home was not the issue which gave rise to the exercise of the
police powers. The Lech Home was destroyed not to eliminate it as a “noxious” use of
property or because it was being used unlawfully, but to further apprehending a suspect.
There was nothing wrong with the Lech Home nor were the Lechs violating or suspected
of violating the law. Accordingly, cases involving laws made pursuant to the police powers
to prohibit uses property which are injurious to health, safety or morals or to seize illegal
uses of property are not applicable to the circumstances here.
The U.S. District Court’s holding in this case, applying the “emergency exception”
as the court did in Customer, is also a federally unprecedented expansion of the doctrine.
The U.S. Supreme Court has only applied the “emergency exception” to the Takings Clause
in very narrow circumstances of extreme peril. Customer, 895 P.2d at 928-29 (J. Baxter,
29
dissenting). No other courts have applied such a broad interpretation of the “emergency
exception” to include that an “emergency” includes the need to apprehend a criminal
suspect who is alluding apprehension by hiding in a home and refusing to come out.
At its root, the “police powers” can be defined as the power of a state or local
governmental entity to make and enforce laws enacted for the health, welfare, morals, and
safety of its citizens. That is not to say that the “police power” is intended to be extended
to include allowing government actors to do everything he or she deems necessary, in his
or her sole discretion, because he/she claims that it protects health, welfare, morals and
safety or furthers “enforcing the law.” Contrary to the U.S. District Court’s position that
the City had “broad police powers” here, no case law supports the U.S. District Court’s
holding that the “police power” includes that government actors have such broad and
unfettered discretionary powers to do whatever they deemed “necessary” as long as they
can claim that it further “enforcing the law.” Indeed, to suggest that the “police powers”
includes discretionary actions by government actors is to surrender power from the
legislature to the government employee.
In the seizure and regulatory cases discussed supra, the police are constrained in the ability
to seize, retain, and destroy property under the 4th Amendment, F.R. Crim. P. 41, Colo. R.
Crim. P. 4, state and local laws, and sometimes approval by a judge. Fed. R. Crim. P.41
and Colo. R. Crim. P.41 not only provide limitations on the seizure of property, but also
provides a process for the return of property seized illegally, beyond the scope of a warrant,
or without probable cause. Fed. R. Crim. P.41(g); Colo. R. Crim. P.41(e). Further, state
laws authorize the seizure of property and limit the scope in which police may act to seize
30
and retain property. See e.g., Desert, 837 P.2d at 767-68 (Desert Truck Sales was entitled
to a post-seizure hearing under state law and the property would returned if Desert could
prove that it lawfully owned the vehicle); Kelley, 611 N.W.2d at 477 (officers who
damaged plaintiffs’ doors were acting pursuant to a statute which authorizes them to use
such force as is reasonably necessary to enter a premise to make an arrest upon probable
cause).
As AmeriSource explains, “[a]s expansive as the police power may be, it is not
without limit. The limits, however, are largely imposed by the Due Process Clause…Thus,
Rule 41(g) is important not only because it ensures that the government is acting pursuant
to the police power, but also because it guards against abuse of the police power.” 525 F.
3d. at 1154-55.Imagine if the U.S. District Court’s expansion of the police powers here
were applied to seizure cases and regulatory laws: the police powers to “enforce the law”
would include actions by governmental actors to destroy property if they deemed in their
sole discretion, that it was necessary to enforce criminal or regulatory laws without any
due process or recourse being available. No statutory or regulatory authority specifically
authorized the destruction of the Lech Home. Nor are the police constrained by law as to
when and if they can destroy property to “enforcing the law.”
If the U.S. District Court’s ruling is permitted to stand, the police will be permitted
to act with impunity to destroy property. They will have no reason to limit the destruction,
regardless of the utility or the burden imposed on citizens, because they will not bear the
burden of the cost and will be absolved of any responsibility. Here, the Defendants acted
to destroy the Lech Home because it supposedly furthered apprehending Seacat. Aplt. App.
31
at 68-69; 262; 265 381-82. Yet, the destruction of the Lech Home did not even accomplish
this goal. Seacat was only found and arrested after a SWAT team entered and located him.
Aplt. App. at 266; 382. As evidenced here, the Defendants had no reason to consider the
cost or the utility of their actions, because as the Defendants have asserted, they owe no
compensation to the Lechs. If it is within the scope of the “police powers” to do whatever
an individual official deems necessary to “enforce the law,” there is practically no limit to
what a governmental entity can do and be absolved of liability.
The position of the Defendants in this case that the Lechs are not entitled to
compensation presents an interesting ethical supposition: that the government, acting in its
discretion to do whatever it deems necessary to eliminate a potential harm to citizens, is
justified in causing harming innocent citizens and absolved of a duty to remedy that harm.
What are the limitations of the “police powers” when an individual governmental actor, in
his or her sole discretion, can determine that an innocent person’s home should be
sacrificed for the public good?
What are the limitations of the “police powers” when an individual governmental
actor, in his or her sole discretion, can determine that destruction of an entire home is
“necessary” for the apprehension of a suspect and that innocent citizens’ property and
quality of life should be sacrificed for that goal? Why not destroy property with a no-
knock or knock and announce search or arrest warrants if it furthers “enforcing the law”
rather than sending in officers or a SWAT team and putting them in danger? What are the
limitations on what damage can be caused to innocent citizens to “enforce the law”? As
the U.S. Supreme Court wisely noted long before the most notorious of the Takings Clause
32
cases, “When this seemingly absolute protection [of the 5th Amendment] is found to be
qualified by the police power, the natural tendency of human nature is to extend the
qualification more and more until at last private property disappears. But that cannot be
accomplished in this way under the Constitution of the United States.” Pennsylvania Coal
Co., 260 U.S. at 415; See also Customer, 895 P.2d at 927-28.
The U.S. District Court’s holding in this case is federally unprecedented and
dangerous expansion of the police powers. It opens up the door for unlimited discretionary
acts by government officials, as long as they can claim it furthers “enforcing the law.”
Accordingly, this Court should reverse the U.S. District Court’s decision.
CONCLUSION
The entire purpose of the Takings Clauses to the U.S. and Colorado Constitutions
is to compensate property owners for property taken for the public good. The duty of
compensation under the Takings Clauses should not be absolved simply because the police
chose to use innocent property to further “enforcing the law.” The Lechs lost their home as
a result of the actions of the Defendants taken for the benefit of the public. The Lechs
should not be forced to this burden, which in all fairness and justice, should be borne by
the public as a whole. Accordingly, this Court should reverse the U.S. District Court’s
decision.
Respectfully submitted,
/s/ Rachel B. Maxam

Rachel B. Maxam
33
Denver, CO 80202
(720) 526-2928
April 30, 2018
34
Certificate of Compliance With Type-Volume Limit Typeface Requirements and

Type Style Requirements
1. This document complies with the type-volume limit of Fed. R. App. P. 32(a)(7) because,
excluding the parts of the document exempted by Fed. R. App. P. 32(f):
[ ] this document contains 9,881 words, or
[ ] this brief uses a monospaced typeface and contains ______lines of text.
2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because:
[X] this document has been prepared in a proportionally spaced typeface using
Word 2016 in 13 point Times New Roman, or
[ ] this document has been prepared in a monospaced typeface using ______ with
_______ and ______.
Date: April 30, 2018 s/ Rachel B. Maxam

Rachel B. Maxam
Attorney for Plaintiffs-Appellants
Denver, CO 80202
(720) 526-2928
35
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS
I hereby certify that a copy of the foregoing APPELLANTS’ OPENING BRIEF,

as submitted in Digital Form via the court’s ECF system, is an exact copy of the written
document filed with the Clerk and has been scanned for viruses with the Avast Antivirus
version 18.3.2333, according to the program, is free of viruses. In addition, I certify all
required privacy redactions have been made.
By: /s/ Rachel B. Maxam

Rachel B. Maxam
36
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing APPELLANTS’ OPENING BRIEF

was furnished through (ECF) electronic service to the following on this the 30th day of
April, 2018:
J. Andrew Nathan
Marni Nathan Kloster
Ashley Hernandez-Schlagel
Nicholas Poppe
Attorneys for Defendants
NATHAN DUMM & MAYER P.C.
7900 E. Union Avenue, Suite 600
Denver, CO 80237-2776
Phone Number: (303) 691-3737
Facsimile: (303) 757-5106
ANathan@ndm-law.com
MKloster@ndm-law.com
ASchlagel@ndm-law.com
NPoppe@ndm-law.com
By: /s/ Rachel B. Maxam

Rachel B. Maxam
37
Case 1:16-cv-01956-PAB-MJW Document 115 Filed 01/08/18 USDC Colorado Page 1 of 32

ATTACHMENT 1
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-01956-PAB-MJW
LEO LECH,
ALFONSIA LECH, and
JOHN LECH,
Plaintiffs,
v.
CHIEF JOHN A. JACKSON,

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,
and
THE CITY OF GREENWOOD VILLAGE,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendants’ Motion and Brief in Support of
Summary Judgment [Docket No. 47] and Plaintiffs’ Motion for Partial Summary
Judgment on the Takings Clause and Due Process Issues [Docket No. 48]. This Court
has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
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I. BACKGROUND
The following facts are undisputed unless noted otherwise. In 2013, plaintiffs
Leo and Alfonsina Lech purchased the property at 4219 South Alton Street in
Greenwood Village, Colorado, both as an investment and as a place for their son,
plaintiff John Lech, to live. Docket No. 47 at 2, ¶ 1; Docket No. 54 at 1, ¶ 1. The home
was a bi-level home that backed directly to Interstate 225. Docket No. 47 at 2, ¶¶ 2-3.
At the time of the events giving rise to this lawsuit, John Lech lived at the property with
his girlfriend, Anna Mumzhiyan, and her son. Id., ¶ 4.
The events at issue in this case occurred on June 3-4, 2015. Docket No. 47 at
1; Docket No. 48 at 1. In the afternoon of June 3, 2015, an officer with the Aurora
Police Department was dispatched to a local Walmart to assist in a shoplifting
investigation. Docket No. 47 at 5-6, ¶ 17.1 However, after the officer confronted the
shoplifting suspect and attempted to escort him back to the store’s loss prevention
office, the suspect fled the scene in a vehicle at high speed. Id.; Docket No. 47-9 at 2. 2
The officer found the vehicle abandoned, Docket No. 47 at 6, ¶ 18, and later observ ed
the suspect cross the northbound lanes of Interstate 225 on foot. Id. A civilian
informed the officer that she saw the suspect with a black semi-automatic pistol. Id.
The Greenwood Village Police Department (“GVPD”) was notified through
dispatch that the Aurora Police Department was pursuing an armed suspect – later
1
Aurora is a municipality located near Greenwood Village.
2
Defendants state that, in fleeing the scene, the suspect attempted to run the
officer over with his vehicle. Docket No. 47 at 5-6, ¶ 17. Plaintiffs assert that this is a
legal conclusion that has yet to be proven in court. Docket No. 54 at 2, ¶ 17.
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identified as Robert Jonathan Seacat – on foot near the northern border of Greenwood
Village. Id., ¶ 19. At approximately 1:54 p.m., GVPD responded to a burglar alarm at
plaintiffs’ residence. Id., ¶ 20. GVPD learned that a nine-year-old boy – Anna
Mumzhiyan’s son, D.Z. – was present in the home when Seacat entered, though he
was able to leave the residence unharmed. Id.; Docket No. 4 at 3, ¶ 10. Officers
positioned their vehicles in the driveway to block any attempt by Seacat to drive a
vehicle out of the garage. Docket No. 47 at 6-7, ¶ 21. As one of ficer was getting out of
his car, a bullet fired from inside the garage went through the garage door and struck
the police car’s hood. Id.3
From the outset, GVPD deemed the incident a “high-risk, barricade suspect
situation.” Docket No. 47 at 7, ¶ 22. Under the GVPD manual, a “barricade situation” is
defined as a “standoff created by an armed or potentially armed suspect in any location
. . . who is refusing to comply with police demands for surrender.” Id. at 4, ¶ 11. The
manual defines a high-risk situation as “[t]he arrest or apprehension of an armed or
potentially armed subject where the likelihood of armed resistence is high.” Id.
Shortly after shots were fired through the garage door, Commander Dustin
Varney of the GVPD arrived on scene and assumed the role of incident commander.
Id. at 7, ¶ 23. As incident commander, Commander Varney was directly in charge of
deploying resources and managing events during the incident. Id. Commander Varney
secured the scene, set up tactical command posts, and activated GVPD’s Emergency
3
Although plaintiffs do not deny that a bullet struck the car’s hood, they contend
that defendants’ statement that Mr. Seacat “fired at the officers” constitutes speculation
about Mr. Seacat’s state of mind. Docket No. 54 at 3, ¶ 21.
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Response and Crisis Negotiation Teams. Id., ¶ 24. He also shut off the gas and water
to the home, restricted overhead airspace, and sent a reverse 911 call out to residents
in the neighborhood informing them of safety protocols. Id.
For approximately four and a half hours, GVPD negotiators tried to get Seacat to
surrender. Id. at 8, ¶ 30; Docket No. 54 at 4, ¶ 31; Docket No. 47-10 at 1. GVPD
negotiated with Seacat via his cellphone and, at Seacat’s request, brought Seacat’s
sister to the scene. Docket No. 47 at 8, ¶¶ 29-30. GVPD also play ed messages from
Seacat’s family members over a loudspeaker. Id. Despite these efforts, Seacat did not
surrender. Id.
At approximately 7:11 p.m., when there had been no sightings of Seacat for
several hours, Commander Varney authorized the firing of two 40 mm rounds of cold
gas munitions through a window for the purpose of getting Seacat out of the residence.
Id., ¶ 31. This tactic did not elicit a response. Id.
About the same time, Commander Varney authorized officers to shut off
Seacat’s cell phone and to deliver a “throw” phone and a robot into the home. Id., ¶ 32;
Docket No. 47-10 at 1-2. GVPD believed at this point that Seacat was barricaded on
the top floor of the residence. Docket No. 47 at 9, ¶ 33. T o enable delivery of a robot
and the throw phone, officers breached the front and rear doors of the residence using
a BearCat armored vehicle. Id. at 9, ¶¶ 34-35; Docket No. 47-10 at 2. Over three
hours later, at approximately 10:40 p.m., a tactical team for GVPD entered the
residence to apprehend Seacat. Docket No. 47 at 9-10, ¶ 36. As the of ficers
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attempted to reach the second floor, Seacat fired at them several times. Id.4 The
officers were ordered to leave the home. Id.
Commander Varney authorized the deployment of additional gas munitions at
various times throughout the incident in an attempt to get Seacat out of the home. Id.,
¶ 37. These efforts were unsuccessful. Id.
In the early morning hours of June 4, 2015, a throw phone was delivered to the
second floor of the home where officers believed Seacat was hiding. Id., ¶ 38. Despite
calls to the phone and officers’ announcements via loudspeaker, Seacat did not pick up
the phone. Id. Seacat’s personal cell phone was turned back on at approximately 4:05
a.m., but negotiators were also unable to reach Seacat on his cell pho ne. Id.
At approximately 5:14 a.m., Commander Varney authorized the use of another
EOD charge on the east side of the home for the purpose of locating Seacat and
limiting his movements inside the home. Id., ¶ 39. Officers also continued their
negotiation efforts and deployed additional gas munitions in an effort to induce Seacat
to exit the residence. Id. at 11, ¶ 40. These efforts failed. Id.
Due to law enforcement’s inability to communicate with Seacat or force him out
of the residence with the gas munitions, Commander Varney authorized the use of the
BearCat to open up holes in the back of the home. Id., ¶ 41. Commander Varney
instructed the officers to “take as much of the building as needed without making the
roof fall in.” Docket No. 47-4 at 20, 50:12-21; Docket No. 47-16 at 6; Docket No. 54-3
4
Plaintiffs object to this statement to the extent it attributes a particular state of
mind or intent to Seacat. Docket No. 54 at 4, ¶ 36. How ever, there appears to be no
dispute that Seacat discharged his weapon in the direction of the police officers and in
response to their presence.
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at 2, 103:4-13 (Varney deposition). Chief John Jackson, the Chief of Police for GVPD
at the time of the incident, testified that he and Commander Varney discussed this
instruction and, specifically, the need to use destructive tactics “for a purpose rather
than simply taking apart the house.” Id. at 20-21, 50:25-51:10; Docket No. 53 at 6, ¶ 2
(admitting that Chief Jackson was the Chief of Police at the time of the incident). It is
undisputed that the purpose of opening up holes in the side of the home was threefold:
(1) to create sightlines into the home for the purpose of enabling officers to locate
Seacat; (2) to make Seacat feel more exposed; and (3) to create gun ports so snipers
could shoot into the residence from a distance. Docket No. 47 at 11, ¶¶ 41-42. 5
After officers had punctured holes in the side of the home, Commander Varney
sent a tactical team into the residence. Id., ¶ 43. The tactical team succeeded in
disarming Seacat and taking him into custody, thereby ending the incident after
approximately nineteen hours. Id.
As a result of the police actions used during the standoff, plaintiffs’ home was
rendered uninhabitable. Docket No. 48 at 3, ¶ 11. Plaintif fs ultimately demolished the
home and built a new one in its place. Docket No. 47 at 14, ¶¶ 60-61. Greenw ood
Village offered plaintiffs $5,000 to help with temporary living expenses, but it denied any
liability for the incident and declined to provide further compensation. Docket No. 48 at
3, ¶ 13; Docket No. 53 at 7, ¶ 10.
5
In their motion to strike, plaintiffs object to defendants’ assertion that the
BearCat was used to “negate [Seacat’s] ability to ambush officers” on the ground that it
is not supported by the record. See Docket No. 80 at 10. The Court need not decide
this issue, however, because it is immaterial to the Court’s resolution of the parties’
summary judgment motions.
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Plaintiffs filed this lawsuit in the District Court for Arapahoe County, Colorado on
June 3, 2016. Docket No. 1-3 at 1. Plaintif fs’ complaint asserts the following claims
against Greenwood Village and members of the Greenwood Village Police Department
in their individual and official capacities: (1) taking without just compensation in violation
of the U.S. and Colorado constitutions; (2) denial of plaintiffs’ due process rights under
the U.S. and Colorado constitutions: (3) trespass; (4) negligence; (5) negligent infliction
of emotional distress; and (6) intentional infliction of emotional distress. See Docket
No. 4. Defendants removed the case to federal court on August 1, 2016. Docket No.
1. On July 10, 2017, defendants moved for summary judgment on all claims, Docket
No. 47, and plaintiffs moved for partial summary judgment on their takings and due
process claims. Docket No. 48.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
4/30/2018
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verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal
quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted).
“To avoid summary judgment, the nonmovant must establish, at a minimum, an
inference of the presence of each element essential to the case.” Bausman, 252 F.3d
at 1115. When considering a motion for summary judgment, a court must view the
evidence in the light most favorable to the non-moving party. Id.
III. ANALYSIS
Defendants move for summary judgment on all claims. Plaintiffs move for
summary judgment on their takings and due process claims.
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A. Ripeness of Federal Takings and Due Process Claims
Defendants argue that plaintiffs’ claims under the Takings and Due Process
Clauses of the Fifth and Fourteenth Amendments are not ripe for review because
plaintiffs have failed to exhaust state procedures for obtaining just compensation.
Docket No. 47 at 16-18.
Under Williamson County Regional Planning Commission v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985), if a state provides adequate procedures for
obtaining just compensation, a property owner must utilize those procedures before
bringing a claim under the Takings Clause of the Fifth Amendment. Id. at 194-95.6 As
the Tenth Circuit has recognized, “the State of Colorado has provided a procedure for
6
Plaintiffs argue that Williamson County is inapposite because it involved a
regulatory taking. See Docket No. 54 at 8. In contrast to an “actual” taking, or a “direct
government appropriation or physical invasion of private property,” a regulatory taking
occurs when “government regulation of private property . . . [is] so onerous that its
effect is tantamount to a direct appropriation or ouster.” Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537 (2005). Although this is an important distinction, the Supreme
Court’s determination that a plaintiff must exhaust state compensation procedures
before bringing a federal takings claim is predicated on the language of the Takings
Clause itself, which encompasses both physical and regulatory takings. See
Williamson Cty., 473 U.S. at 194 (noting that “[t]he Fifth Amendment does not proscribe
the taking of property,” but only “taking without just compensation”); Lingle, 544 U.S. at
537 (explaining that both physical and regulatory takings are compensable under the
Fifth Amendment). To the extent plaintiffs assert that the Supreme Court’s ripeness
holding was based on the developer’s failure in Williamson County to obtain a final
decision regarding the effect of a zoning ordinance, the Court notes that Williamson
County set forth two separate ripeness requirements: (1) “that the government entity
charged with implementing the [challenged] regulations has reached a final decision
regarding the application of the regulations to the property at issue”; and (2) that the
plaintiff has “sought just compensation through the available state procedures and been
denied relief.” Schanzenbach v. Town of LaBarge, 706 F.3d 1277, 1281-82 (10th Cir.
2013); see also Williamson Cty., 473 U.S. at 186-95. Although both requirements
served as the basis for the Supreme Court’s holding in Williamson County, only the
second is at issue in this case.
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obtaining compensation for inverse condemnation.” SK Finance SA v. La Plata Cty.,
Bd. of Cty. Comm’rs, 126 F.3d 1272, 1276 (10th Cir. 1997) (citing Colo. Rev. Stat. § 38-
1-101 et seq.).7 The failure to utilize that procedure thus renders a federal takings claim
unripe for review. See id. (federal takings claim unripe because plaintiff had not availed
itself of Colorado’s statutory procedure for obtaining just compensation).
The requirement that a property owner exhaust state compensation procedures
before seeking redress under federal law has also been applied to due process claims
that assert “the same loss upon which the . . . takings claim is based.” Rocky Mountain
Materials & Asphalt, Inc. v. Bd. of Cty. Comm’rs of El Paso Cty., 972 F.2d 309, 311
(10th Cir. 1992). In such circumstances, courts in this circuit have “required the plaintiff
to utilize the remedies applicable to the takings claim.” Id.; see also Miller v. Campbell
Cty., 945 F.2d 348, 352 (10th Cir. 1991) (explaining that, when “factual situation [ ] falls
squarely within” Takings Clause, “[i]t is appropriate . . . to subsume the more
generalized Fourteenth Amendment due process protections within the more
particularized protections of the Just Compensation Clause”). Accordingly, the failure to
bring an inverse condemnation action in state court renders the due process claim
“likewise not ripe because it is in essence based on the sam e deprivation.” Rocky
Mountain Materials & Asphalt, Inc., 972 F.2d at 311.
7
Colo. Rev. Stat. § 38-1-101 prohibits takings without just compensation and
provides that, “[i]n all cases in which compensation is not made by the state in its
corporate capacity, such compensation shall be ascertained by a board of
commissioners of not less than three disinterested and impartial freeholders . . . or by a
jury when required by the owner of the property . . . .”
10
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Since its decision in Williamson County, however, the Supreme Court has
clarified that the state compensation requirement is based on prudential rather than
jurisdictional concerns. See Horne v. Dep’t of Agric., 569 U.S. 513, 525-26 (2013).
Moreover, Williamson County “does not preclude state courts from hearing
simultaneously a plaintiff’s request for compensation under state law and the claim that,
in the alternative, the denial of compensation would violate the Fifth Amendment of the
Federal Constitution.” San Remo Hotel, L.P. v. City & Cty. of San Francisco, 545 U.S.
323, 346 (2005). Relying on these two propositions, courts have held that a defendant
waives the Williamson County state compensation requirement by removing a case to
federal court when the plaintiff’s original state court action asserted both state and
federal claims for inverse condemnation. See, e.g., Lilly Investments v. City of
Rochester, 674 F. App’x 523, 530-31 (6th Cir. Jan. 5, 2017) (unpublished); Sherman v.
Town of Chester, 752 F.3d 554, 563-64 (2d Cir. 2014); Sansotta v. Town of Nags Head,
724 F.3d 533, 544-47 (4th Cir. 2013); Race v. Bd. of Cty. Comm’rs of the Cty. of Lake,
Colo., No. 15-cv-1761-WJM-KLM, 2016 WL 1182791, at *3-4 (D. Colo. Mar. 28, 2016);
River N. Props., LLC v. City & Cty. of Denver, No. 13-cv-01410-CMA-CBS, 2014 WL
1247813, at *2-9 (D. Colo. Mar. 26, 2014); Merrill v. Summit Cty., 2009 WL 530569, at
*3 (D. Utah Mar. 2, 2009). As the Fourth Circuit has explained, application of the waiver
doctrine in these circumstances prevents a state or political subdivision from
“manipulat[ing] litigation to deny a plaintiff a forum for his claim.” Sansotta, 724 F.3d at
545.8
8
At least one court has expressed skepticism about this justification, noting that
dismissal on ripeness grounds is not an adjudication on the merits and thus does not
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The Court finds this reasoning persuasive. Plaintiffs in this case did exactly what
they were permitted to do by filing both their state and federal takings claims in state
court. See San Remo Hotel, 545 U.S. at 346. Because state courts – like f ederal
courts – adhere to the Williamson County requirement and adjudicate a plaintiff’s state
inverse condemnation claims before reaching the merits of any companion federal
claims, dismissal of the federal claims following removal would “put[] the case in
effectively the same position” as if the case had remained in state court. Race, 2016
WL 1182791, at *3; see also Claassen v. City & Cty. of Denver, 30 P.3d 710, 715
(Colo. App. 2000) (stating that, under Williamson County, “the Fifth Amendment claims
cannot be ripe for judicial review until the companion inverse condemnation claims are
resolved”). The Court agrees that the only thing to be achieved by such a maneuver is
delay. See id. Accordingly, the Court joins other courts in this district in holding that
defendants waived the Williamson County compensation requirement by removing this
case to federal court. Plaintiffs’ claims are therefore ripe for review.
B. State and Federal Takings Claims
Defendants argue that plaintiffs’ takings claims under the U.S. and Colorado
constitutions fail as a matter of law because defendants were authorized, pursuant to
preclude a plaintiff from bringing his federal claims at a later date. See Race, 2016 WL
1182791, at *2. Nevertheless, that court recognized that a rule waiving the Williamson
County compensation requirement when a defendant removes a case to federal court
“discourage[s] a procedural maneuver that adds nothing to the dispute but delay.” Id. at
*3.
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their police powers, to damage plaintiffs’ property without triggering the requirement of
just compensation. Docket No. 47 at 23-26. 9
The Takings Clause of the U.S. Constitution, which is applicable to the states
through the Fourteenth Amendment, see Chicago, B. & Q.R. Co. v. Chicago, 166 U.S.
226 (1897), states that “private property [shall not] be taken for public use, without just
compensation.” U.S. Const. amend. V. Similarly, Article II, § 15 of the Colorado
Constitution provides that “[p]rivate property shall not be taken or damaged, for public
or private use, without just compensation.” Colo. const. art. II, § 15. These provisions
are “designed not to limit the governmental interference with property rights per se, but
rather to secure compensation in the event of otherwise proper interference amounting
to a taking.” Lingle, 544 U.S. at 537 (quoting First English Evangelical Lutheran Church
of Glendale v. Cty. of Los Angeles, 482 U.S. 304, 314 (1987)). At the core of the
compensation requirement is the principle that government should not be permitted to
“forc[e] some people alone to bear public burdens which, in all fairness and justice,
9
Defendants claim that because Article II, § 15 of the Colorado Constitution
affords broader protections than the federal Takings Clause, plaintiffs’ inability to
survive summary judgment on the state claim requires dismissal of the federal claim.
Docket No. 47 at 17. The Court agrees that the two claims can be considered together.
First, aside from the “damages” clause of Article II, §15 of the Colorado Constitution,
which “only applies to situations in which the damage is caused by government activity
in areas adjacent to the landowner’s land,” the Colorado Supreme Court has interpreted
that section “as consistent with the federal [takings] clause.” Animas Valley Sand &
Gravel, Inc. v. Bd. of Cty. Comm’rs, 38 P.3d 59, 63-64 (Colo. 2001). Second, neither
the Colorado courts applying the Colorado Constitution nor the courts in this circuit
applying the federal constitution have addressed the precise issue presented in this
case – whether damage to property caused by law enforcement’s efforts to apprehend
a suspect barricaded inside an innocent third party’s home constitutes a taking without
just compensation.
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should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49
(1960); Bd. of Cty. Comm’rs of Saguache Cty. v. Flickinger, 687 P.2d 975, 983 (Colo.
1984).
However, the prohibition against uncompensated governmental interference with
private property has certain limitations. The Takings Clause is concerned with the
government’s power of eminent domain. Where the government acquires private
property by virtue of some other authority, just compensation is not required. See
Bennis v. Michigan, 516 U.S. 442, 452 (1996). Consistent with this limitation, cases
applying both state and federal takings clauses have historically distinguished between
eminent domain authority, which permits the taking of private property for public use,
and the police power, which allows states to regulate private property for the protection
of public health, safety, and welfare. See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-
69 (1887) (distinguishing between eminent domain and police powers and stating, in
regard to the latter, that “[a] prohibition simply upon the use of property for purposes
that are declared . . . to be injurious to the health, m orals, or safety of the community,
cannot, in any just sense, be deemed a taking or an appropriation of property for the
public benefit”); City & Cty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 766-67
(Colo. 1992) (noting that “[p]olice 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 just compensation, whereas the latter
takes property for public use and compensation is given for property taken, damaged,
or destroyed”). While exercise of the eminent domain power triggers the requirement of
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just compensation, exercise of the police power is noncompensable. See State Dep’t
of Highways, Div. of Highways v. Davis, 626 P.2d 661, 667 (Colo. 1981) (noting that a
restriction imposed under the police power is a loss without an injury). “Like the state,
municipalities have broad police powers . . . .” Town of Dillon v. Yacht Club
Condominiums Home Owners Ass’n, 325 P.3d 1032, 1038 (Colo. 2014).
Defendants in this case argue that they were acting pursuant to their police
powers when they damaged plaintiffs’ home. Docket No. 47 at 25. Specifically, they
contend that Seacat posed a serious and ong oing threat and that the actions
defendants took in apprehending him were necessary to protect the “safety, morals,
health and general welfare of the public.” Id. Plaintiffs respond that there is no “public
safety” or emergency exception to the U.S. or Colorado constitutions. Docket No. 48 at
7; Docket No. 54 at 6, 10. In addition, they assert that the distinction between a taking
requiring just compensation and the exercise of a state’s police powers is not a matter
of settled law. Docket No. 54 at 12.
Courts in this circuit applying either Colorado law or federal law have not
considered whether damage sustained to an innocent third party’s home as a result of
police efforts to apprehend a suspect gives rise to a compensable taking under the
Colorado or U.S. constitutions. 10 However, a majority of courts that have considered
whether the just compensation requirement applies to property damage caused by
police officers in the performance of their duties have concluded that it does not. In an
10
The Court notes that the parties’ factual disputes, to the extent they exist, have
no bearing on this question. Plaintiffs contend that the destruction of their property
constituted a taking regardless of whether defendants’ actions were reasonable under
the circumstances. See Docket No. 48 at 5.
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analogous case, the California Supreme Court held that property damage caused by
law enforcement’s efforts to apprehend a suspect barricaded inside a store did not g ive
rise to an inverse condemnation action under the California Constitution. Customer Co.
v. City of Sacramento, 895 P.2d 900, 904-05 (Cal. 1995). 11 The court reasoned that the
just compensation requirement had never “been applied to require a public entity to
compensate a property owner for property damage resulting from the efforts of law
enforcement officers to enforce the criminal laws.” Id. at 906. Instead, claims for
property damage caused by public employees in the performance of their duties had
generally been understood as arising in tort. Id. at 909.
The California Supreme Court also relied on the so-called “emergency
exception” – “a specific application of the general rule that damage to, or even
destruction of, property pursuant to a valid exercise of the police power often requires
no compensation under the just compensation clause” – to support its conclusion that
the property damage alleged in the case was noncompensable under California’s
takings clause. Id. at 909. The emergency exception has historically been applied to
deny compensation where property is destroyed to avert a public emergency, such as a
fire, see, e.g., Bowditch v. City of Boston, 101 U.S. 16, 18 (1879), or the advance of
enemy troops, see, e.g., United States v. Caltex, Inc., 344 U.S. 149 (1952). The court
concluded that the case fell within the scope of this exception, given that “law
enforcement officers must be permitted to respond to emergency situations that
11
Article I, Section 19(a) of the California Constitution provides that “[p]rivate
property may be taken or damaged for a public use and only when just compensation . .
. has first been paid to . . . the owner.”
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endanger public safety, unhampered by the specter of constitutionally mandated liability
for resulting damage to private property.” Customer Co., 895 P.2d at 910-11.
Cases decided before and after Customer Co. have similarly concluded that
property damage caused by law enforcement officials in the performance of their duties
does not give rise to a claim for just compensation. See, e.g., Johnson v. Manitowoc
Cty., 635 F.3d 331, 336 (7th Cir. 2011) (holding that property damage resulting from
officers’ execution of search warrant did not give rise to claim for just compensation
because officers were acting pursuant to police powers); AmeriSource Corp. v. United
States, 525 F.3d 1149, 1153 (Fed. Cir. 2008) (holding that seizure and retention of
innocent third party’s property for use in criminal prosecution did not give rise to claim
for just compensation, even where government action rendered property useless,
because “[p]roperty seized and retained pursuant to the police power is not taken for a
‘public use’ in the context of the Takings Clause”); Jones v. Phila. Police Dep’t, 57 F.
App’x 939, 941-43 (3d Cir. 2003) (unpublished) (holding, under multi-factor balancing
test, that property damage resulting from police officers’ execution of search warrant did
not entitle property owner to compensation under the Fifth Amendment); Lawmaster v.
Ward, 125 F.3d 1341, 1351 (10th Cir. 1997) (holding that plaintiff failed to allege any
facts showing how property was taken for public use under the Fifth Amendment where
property was damaged during officers’ execution of search warrant); Eggleston v.
Pierce Cty., 64 P.3d 618, 623, 627 (W ash. 2003) (distinguishing between police power
and power of eminent domain and holding that plaintiff was not entitled to just
compensation after police rendered home uninhabitable by removing load-bearing wall
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for use as evidence during execution of search warrant); Kelley v. Story Cty. Sheriff,
611 N.W.2d 475, 482 (Iowa 2000) (concluding that property damage caused by officers
during execution of search warrant “was a reasonable exercise of police power and
therefore does not amount to a taking of plaintiff’s property within the meaning” of the
Iowa constitution); McCoy v. Sanders, 148 S.E.2d 902 (Ga. App. 1966) (holding that
property owner was not entitled to just compensation because officers were acting
pursuant to state’s police powers when they drained fish pond in order to locate body of
murder victim).
At least two courts have reached the opposite conclusion. In Steele v. City of
Houston, 603 S.W.2d 786 (Tex. 1980), the Texas Supreme Court held that police
officers’ destruction of the plaintiffs’ home in attempting to apprehend three escaped
convicts supported a cause of action under the takings clause of the Texas
Constitution. Id. at 791. The court declined to “differentiate between an exercise of
police power . . . and eminent domain,” finding the distinction unhelpful “in determining
when private citizens affected by governmental actions must be compensated.” Id. at
789. However, the court noted that the defendant would be permitted on remand to
“defend its actions by proof of a great public necessity.” Id. at 792.
Similarly, in Wegner v. Milwaukee Mutual Insurance Co., 479 N.W.2d 38 (Minn.
1991), the Minnesota Supreme Court held that “where an innocent third party’s property
is damaged by the police in the course of apprehending a suspect, that property is
damaged within the meaning of the [Minnesota] constitution.” Id. at 41-42. Similar to
this case and Steele, Wegner involved the destruction of an innocent third party’s home
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by police officers in their attempt to apprehend a suspect who had taken refuge inside.
Id. at 39. In holding that the city was required to provide compensation under the state
takings clause, the court rejected the dichotomy between a state’s police power and its
power of eminent domain, emphasizing that it would be unjust for an innocent
homeowner to bear the entire loss caused by government action benefitting the public
as a whole. Id. at 40, 42. Relying on this principle, the court went further than Steele
and held that the city could not avoid liability based on the doctrine of public necessity.
Id. at 42.
Plaintiffs urge this Court to dispense with the distinction between police powers
and eminent domain and adopt the reasoning of Steele and Wegner. See Docket No.
48 at 7-8; Docket No. 54 at 12. Plaintiffs suggest that the holdings in those cases
better comport with the principle that property owners should not be forced “to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole.” Docket No. 54 at 12. Although the Court is sympathetic to plaintiffs’ loss, it
finds these arguments unpersuasive.
As an initial matter, the Court agrees that “simply labeling the actions of the
police as an exercise of the police power cannot justify the disregard of the
constitutional inhibitions.” Docket No. 48 at 8 (quoting Wegner, 479 N.W.2d at 40). But
while a state’s police powers are “not without limit[,] . . . . [t]he limits . . . are largely
imposed by the Due Process Clause.” AmeriSource Corp., 525 F.3d at 1154; Town of
Dillon, 325 P.3d at 1039 (“Though broad, a municipality’s police powers are limited by
due process.”). The holdings in both Steele and Wegner were based in part on a
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determination that the distinction between the police power and the power of eminent
domain is no longer helpful in determining whether an individual is entitled to just
compensation. See Wegner, 479 N.W.2d at 40; Steele, 603 S.W.2d at 789. The Court
agrees that this line is poorly defined. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 425 (1982) (accepting court of appeals’ determination that law fell
within state’s police power but stating that “[i]t is a separate question . . . whether an
otherwise valid regulation so frustrates property rights that compensation must be
paid”); Collopy v. Wildlife Comm’n, Dep’t of Nat. Res., 625 P.2d 994, 1001 (Colo. 1981)
(suggesting that difference between violation of just compensation clause and valid
exercise of the state’s police power lies in degree of deprivation); see generally
Christopher D. Supino, The Police Power and “Public Use”: Balancing the Public
Interest Against Private Rights Through Principled Constitutional Distinctions , 110 W.
Va. L. Rev. 711 (2008) (discussing Supreme Court’s inability to articulate principled
distinction between Public Use Clause and police power). Nevertheless, the Court
declines to dispense with the distinction for two reasons.
First, courts have continued to differentiate between an exercise of the police
power and eminent domain in determining whether a compensable taking has occurred
under the U.S. and Colorado constitutions. See, e.g., AmeriSource, 525 F.3d at 1153-
54 (stating that, because seizure of property “to enforce criminal laws” was “clearly
within the bounds of the police power,” property was “not seized for public use within
the meaning of the Fifth Amendment” (internal quotations omitted)); Young v. Larimer
Cty. Sheriff’s Office, 356 P.3d 939, 943 (Colo. App. 2014) (citing AmeriSource and
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holding that seizure of private property for use in criminal prosecution was within scope
of city’s police power and thus taking for public use did not occur). By contrast, the
Steele court’s decision to dispense with the distinction was supported by a series of
recent state court cases applying the just compensation requirement of the Texas
Constitution. See Steele, 603 S.W.2d at 789 (citing “[r]ecent decisions by this court . . .
broadly appl[ying] the underlying rationale to takings by refusing to differentiate
between an exercise of police power . . . and eminent domain”).
Second, to the extent that the line between these two concepts is blurry, this
case does not come close to that line. Not only have courts held that the enforcement
of criminal laws clearly falls within the scope of a state’s police power, see Kelley, 611
N.W.2d at 481 (“Enforcement of the criminal laws is clearly within the county’s power to
provide for the health, safety and welfare of its citizens.”), but defendants in this case
were also responding to an emergency situation.
At least one court has held that police of ficers’ destruction of a store in the
course of apprehending an armed felony suspect falls within the “emergency exception”
to the just compensation requirement. See Customer Co., 895 P.2d at 909. As the
court in Customer Co. noted, “[t]he emergency exception has had a long and consistent
history in both state and federal courts” and represents a “specific application of the
general rule that damage to, or even destruction of, property pursuant to a valid
exercise of the police power often requires no compensation under the just
compensation clause.” Id.; see also Caltex, 344 U.S. at 154 (“[T]he common law had
long recognized that in times of imminent peril – such as when fire threatened a whole
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community – the sovereign could, with immunity, destroy the property of a few that the
property of many and the lives of many more could be saved.”). Courts have generally
accepted the continued viability of the emergency exception under both state and
federal constitutions, even as they disagree over the distinction between police power
and eminent domain. See, e.g., Customer Co., 895 P.2d at 934 (Baxter, J., dissenting)
(disagreeing that property damage in case was noncompensable, but recognizing
continued viability of emergency exception); Steele, 603 S.W.2d at 789, 792 (rejecting
dichotomy between police power and eminent domain, but stating that defendant could
“defend its actions [on remand] by proof of a great public necessity”). But see Wegner,
479 N.W.2d at 42 (declining to permit public necessity defense and stating that “better
rule, in situations where an innocent third party’s property is taken, damaged or
destroyed by the police in the course of apprehending a suspect, is for the municipality
to compensate the innocent party for the resulting damages”).
The Court is persuaded by the California Supreme Court’s reasoning in
Customer Co. and finds that the undisputed facts in this case demonstrate that
defendants’ actions in apprehending Seacat fall within the scope of the emergency
exception. Law enforcement officials were faced with an armed suspect who had
unlawfully entered plaintiffs’ home and barricaded himself inside. Docket No. 47 at 6-7,
¶¶ 20, 22; Docket No. 67 at 9, ¶ 10. T he ensuing nineteen-hour standoff was deemed
a “high-risk, barricade suspect situation,” Docket No. 47 at 4, 7, ¶¶ 11, 22, in w hich
Seacat fired at GVPD officers on two occasions. Id. at 6, 10, ¶¶ 21, 36. 12 Finally, it is
12
At least two courts have indicated that the emergency exception only applies “if
the State demonstrates the existence of imminent danger and an actual emergency
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undisputed that “[a]ll law enforcement actions were done to remove Seacat from the
residence while making all efforts to preserve life.” Id. at 11, ¶ 44. 13
Defendants were acting in response to a tangible threat to the health and safety
of the public and the tactical decisions that ultimately destroyed plaintiffs’ home were
made pursuant to the state’s police powers and not the power of eminent domain. See
Customer Co., 895 P.2d at 909. Accordingly, the damaging of plaintiffs’ home does not
constitute a compensable taking under either the U.S. or Colorado constitutions.
giving rise to actual necessity, an inquiry that is fact-specific.” Brewer v. State, 341
P.3d 1107, 1118 (Alaska\ 2014); see also TrinCo Investment Co. v. United States, 722
F.3d 1375, 1380 (Fed. Cir. 2013) (reversing dismissal of complaint under Fed. R. Civ.
P. 12(b)(6) on ground that “[i]t [was] impossible,” based on allegations in complaint, “to
determine whether the requisite imminent danger and actual emergency giving rise to
the actual necessity of the Forest Service’s burning of TrinCo’s property was present to
absolve the Government under the doctrine of necessity”). In this case, there is no
dispute that Seacat’s actions posed a threat to the public and that def endants’ actions
were taken in response to that threat. To the extent Brewer and TrinCo further suggest
that defendants must show their response was reasonable, the Court finds that such an
inquiry sounds in due process rather than takings. See Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528, 540 (2005) (holding that whether a government action “substantially
advances” a legitimate state interest is “an inquiry in the nature of a due process, not a
takings, test”); Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398,1409-
10 (9th Cir. 1989) (looking to factors such as “the need for the governmental action in
question, the relationship between the need and the action, the extent of harm inflicted,
and whether the action was taken in good faith or for the purpose of causing harm” in
determining whether defendants’ actions in breaching dam and destroying lake violated
plaintiffs’ substantive due process rights), overruled on other grounds by Armendariz v.
Penman, 75 F.3d 1311 (9th Cir. 1996).
13
In their motion to strike, plaintiffs argue that the same fact, asserted on page 31
of defendants’ motion for summary judgment, is unsupported by a reference to the
record. See Docket No. 80 at 17, ¶ 36. But plaintiffs admitted this fact in their
response to defendants’ summary judgment motion. Docket No. 54 at 4, ¶ 44.
Accordingly, it is undisputed for purposes of summary judgment. To the extent
Plaintiffs’ Motion to Strike Defendants’ Evidence in Motions Practice [Docket No. 80]
asserts additional arguments not already addressed in this Order, those arguments are
immaterial to the Court’s resolution of the parties’ cross-motions for summary judgment.
Those portions of plaintiffs’ motion to strike are therefore denied as moot.
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Summary judgment is therefore appropriate in favor of defendants on plaintiffs’ takings
claims.
C. Federal Due Process Claims
Plaintiffs claim that defendants violated their due process rights under the Fifth
and Fourteenth Amendments of the U.S. Constitution by destroying their property
without providing just compensation. Docket No. 48 at 9-12. 14
The Fourteenth Amendment of the U.S. Constitution provides that no state shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
Amend. XIV. This guarantee contains both procedural and substantive components.
See Cty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Procedural due process
generally requires that a state follow certain procedures before depriving an individual
of a protected liberty or property interest. See Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (“The fundamental requirement of [procedural] due process is the opportunity to
be heard ‘at a meaningful time and in a meaningful manner.’” (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). In contrast, substantive due process serves as a
prohibition against arbitrary government action, regardless of the fairness of the
procedures used. Cty. of Sacramento, 523 U.S. at 840, 845. Plaintiffs’ complaint is
unclear about whether they are asserting a violation of their procedural or substantive
14
Although plaintiffs also assert they were deprived of their due process rights
under the Fifth Amendment, see Docket No. 48 at 9, only the Fourteenth Amendment is
applicable where, as here, the defendants are state actors. See Bartkus v. Illinois, 359
U.S. 121, 124 (1959); Lyle v. Dodd, 857 F. Supp. 958, 966 (N.D. Ga. 1994) (“It is
axiomatic that the Fifth Amendment due process clause applies only to the federal
government, while the Fourteenth Amendment due process clause applies to the
states.”).
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due process rights. See Docket No. 4 at 9-10. As discussed below, however, plaintiffs’
claim cannot survive summary judgment under either theory.
1. Procedural Due Process
Plaintiffs contend that defendants violated their procedural due process rights by
“unilaterally determin[ing] . . . that taking of property was necessary and legal under the
circumstances” and failing to provide just compensation. Docket No. 48 at 10. They
further suggest that defendants lacked authority for their actions. Id. at 11. Both
arguments are unavailing.
First, although due process generally requires that an individual be given “an
opportunity for some kind of hearing prior to the deprivation of a significant property
interest,” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19 (1978) (internal
quotations omitted), pre-deprivation due process is not required when a state is
confronted with an emergency situation. See Miller v. Campbell Cty., 945 F.2d 348,
353 (10th Cir. 1991) (citing Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S.
264, 299-300 (1981)); Hodel, 452 U.S. at 300 (“Protection of the health and safety of
the public is a paramount governmental interest which justifies summary administrative
action.”). Because the undisputed facts in this case demonstrate that defendants were
faced with an emergency situation, see Docket No. 47 at 4, 6-8, ¶¶ 11, 20, 22, 27,
plaintiffs were not entitled to a hearing or other kind of process prior to the damaging of
their home. Plaintiffs do not challenge this conclusion. See Docket No. 54 at 10;
Docket No. 63 at 7. Instead, they contend that the only issue in this case is “post-taking
compensation.” Docket No. 54 at 10. The meaning of this statement is unclear.
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However, to the extent plaintiffs are asserting that they have been denied post-
deprivation procedural due process, their claim is belied by the existence of this lawsuit.
See Miller, 945 F.2d at 354 (holding that “the condemnation process (or a revival of
plaintiffs’ Just Compensation claim should condemnation prove to be inadequate)
offer[ed] the plaintiffs a sufficient post-deprivation hearing to obtain just compensation
for the loss of their property”).15
Plaintiffs also assert that there was no “law, regulation, or ordinance authorizing
[defendants] to take property.” Docket No. 48 at 11. It is not clear what plaintiffs are
arguing here. If they mean to contend that defendants lacked formal powers of eminent
domain, the Court has already determined that this case involves an exercise of the
state’s police powers in an emergency situation, not eminent domain. Moreover,
defendants are statutorily authorized to enforce criminal laws – a power which
necessarily entails the authority to apprehend suspects. Under Colo. Rev. Stat. § 31-
15-401(1)(a), municipalities have the power “[t]o regulate the police of the municipality,
including employing certified peace officers to enforce all laws of the state of Colorado .
15
Although plaintiffs argue that Colorado’s inverse condemnation procedures are
inadequate to compensate them for their loss, see Docket No. 83 at 7, they do not
argue that the procedures available through the state and federal court systems are
generally inadequate to satisfy due process requirements. The conclusion that
plaintiffs’ ability to pursue this lawsuit constitutes adequate post-deprivation due
process is not altered by the fact that plaintiffs’ claims may ultimately prove
unsuccessful. See Stanley v. McMillian, 594 F. App’x 478, 480 (10th Cir. 2014)
(unpublished) (“Plaintiff’s speculation that the state court would likely dismiss his
complaint for lack of exhaustion does not prove the state has failed to provide adequate
procedural safeguards for his due process rights . . . .”); see also Zinermon v. Burch,
494 U.S. 113, 125 (1990) (“In procedural due process claim s, the deprivation by state
action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without
due process of law.”).
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. . , and pass and enforce all necessary police ordinances.” Additionally, § 2-5-40 of the
Greenwood Village Municipal Code provides that members of the Greenwood Village
Police Department “shall be the enforcement officers of the City and shall see that the
provisions of the ordinances of the City and the laws of the State are complied with.”
Greenwood Village, Colo., Code § 2-5-40 (2011). There is no contention that
defendants were not members of the Greenwood Village Police Department.
Accordingly, any assertion that defendants’ actions were not authorized by any law,
regulation, or ordinance, see Docket No. 48 at 11, is without merit.
In summary, the Court finds that plaintiffs have failed to demonstrate a
deprivation of their procedural due process rights. Dismissal of this claim is therefore
appropriate.
2. Substantive Due Process
Plaintiffs also make a cursory reference to substantive due process. See Docket
No. 48 at 9; Docket No. 63 at 7. But plaintif fs do not appear to assert a violation of their
substantive due process rights separate from the claim that they were denied just
compensation. See Docket No. 54 at 10 (stating that only issue in case is “post-taking
compensation”). As previously determined, plaintiffs are not entitled to just
compensation under the takings clauses of the U.S. and Colorado Constitutions, and
plaintiffs’ ability to seek just compensation in both state and federal court satisfies the
requirements of post-deprivation procedural due process.
To the extent plaintiffs intended to assert a separate substantive due process
claim based on defendants’ actions during the incident, they have failed to demonstrate
27
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5:21:57
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a genuine issue for trial. See Concrete Works of Colo., Inc., 36 F.3d at 1518. In their
motion for summary judgment, defendants note that “Plaintiffs do not specifically plead
how Defendants’ actions violated their rights.” Docket No. 47 at 17. Instead of
clarifying the nature of their claims, however, plaintiffs respond with the ambiguous
assertion that this case involves only “post-taking compensation.” Docket No. 54 at 10.
Moreover, although plaintiffs cite the standard that governs substantive due
process claims, see Docket No. 48 at 9, they do not cite any facts or case law to show
that defendants’ actions were objectively unreasonable or shocking to the conscience.
See generally Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015) (holding that
objective reasonableness standard governs whether force deliberately used on pre-trial
detainee violates Fourteenth Amendment due process); Cty. of Sacramento v. Lewis,
523 U.S. 833, 846 (1998) (noting that “cognizable level of executive abuse of power”
under Due Process Clause is “that which shocks the conscience”). Defendants
highlight this deficiency in their response to plaintiffs’ motion for summary judgment,
asserting that plaintiffs have not “argue[d] that the decisions Varney made during the
Incident were unreasonable or not done to protect lif e and the public health, safety and
welfare.” See Docket No. 53 at 15-16. 16 However, plaintiffs fail to remedy the issue in
their reply, claiming only that defendants did not address the “lack of . . . substantive
due process.” See Docket No. 63 at 7.
16
Defendants also highlight this deficiency in their opposition to plaintiffs’ takings
claims. See, e.g., Docket No. 47 at 26; Docket No. 60 at 6. Yet plaintiffs repeatedly
assert that the reasonableness of defendants’ actions is immaterial. See Docket No. 48
at 7 (stating that, while “ouster may well have been completely necessary for the safety
of the public,” plaintiffs are still entitled to compensation), 8 (stating that the
“reasonableness or legitimacy of the police conduct” is not “the issue facing the Lechs”).
28
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5:21:57
404 PM
Plaintiffs have not asserted a substantive due process claim based on the
reasonableness of defendants’ actions during the incident and thus have failed to
demonstrate a genuine dispute of material fact to preclude summary judgment in
defendants’ favor.17
D. Remaining State Law Claims
Plaintiffs’ five remaining claims arise under Colorado state law. Although the
Court may exercise supplemental jurisdiction over state law claims if there is a
jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3) provides that a district court
“may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district
court has dismissed all claims over which it has original jurisdiction.” The Tenth Circuit
has instructed that, “if federal claims are dismissed before trial, leaving only issues of
state law,” courts should “decline to exercise pendent jurisdiction . . . absent compelling
reasons to the contrary.” Brooks v. Gaenzle, 614 F.3d 1213, 1229-30 (10th Cir. 2010)
(brackets, internal citations, and internal quotation marks omitted). This rule is
consistent with “[n]otions of comity and federalism,” which “demand that a state court try
its own lawsuits.” Id. at 1230 (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.
1995)).
17
Because the Court resolved plaintiffs’ takings and due process claims without
relying on the testimony of plaintiffs’ expert, Dan Corsentino, or defendants’ experts,
Phil Hanson, Chris George, and Ernie Ortiz, the Court need not determine whether the
testimony of those experts would be admissible at trial. Accordingly, Defendants’
Motion to Preclude Plaintiff’s Expert Dan Corsentino [Docket No. 44], Plaintiffs’ Motion
to Exclude Expert Testimony [Docket No. 45], and Plaintiffs’ Motion to Strike Expert
Testimony [Docket No. 77] are denied as moot.
29
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Aplt. App. Pg.
5:21:57
405 PM
Plaintiffs do not argue that the Court should retain jurisdiction over their state law
claims if their federal claims are dismissed, and the Court does not find any compelling
reason to do so. Accordingly, plaintiffs’ first, second, third, fourth, and seventh (to the
extent it asserts a violation of due process under Article II, § 25 of the Colorado
Constitution) claims for relief are remanded to the state court for further proceedings.
See Thompson v. City of Shawnee, 464 F. App’x 720, 726 (10th Cir. 2012)
(unpublished) (where all federal claims were dismissed after case was removed to
federal court, “district court had discretion either to remand the [state claims] to the
state court or to dismiss them”).18
IV. ATTORNEY’S FEES
Colo. Rev. Stat. § 24-10-110(5)(c) provides:
In any action against a public employee in which exemplary damages are

sought based on allegations that an act or omission of a public employee
was willful and wanton, if the plaintiff does not substantially prevail on his
claim that such act or omission was willful and wanton, the court shall
award attorney fees against the plaintiff or the plaintiff’s attorney or both
and in favor of the public employee.
By its terms, this provision applies only to plaintiffs’ state tort claims, which allege willful
and wanton conduct on the part of defendants. See Docket No. 4 at 6-7. Because
18
Because the Court declines to retain jurisdiction over plaintiffs’ state law claims,
it need not consider those portions of Defendants’ Reply in Support of Their Motion and
Brief for Summary Judgment [Docket No. 60] that plaintiffs contend raise new
arguments. See Docket No. 69 at 2. Accordingly, Plaintiffs’ Motion to Strike Portion of
Defendants’ Reply or in the Alternative, Permit Sur-Reply by Plaintiffs [Docket No. 69] is
denied. See Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005).
30
4/30/2018
Aplt. App. Pg.
5:21:57
406 PM
those claims are being remanded to state court, defendants’ request for attorney’s fees
is premature.19
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Motion and Brief in Support of Summary Judgment
[Docket No. 47] is GRANTED in part and DENIED in part. It is further
ORDERED that Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 48]
is DENIED. It is further
ORDERED that plaintiffs’ fifth and sixth claims for relief are dismissed with
prejudice. It is further
ORDERED that plaintiffs’ seventh claim for relief is dismissed with prejudice
insofar as it states a claim under the Fourteenth Amendment of the U.S. Constitution. It
is further
ORDERED that plaintiff’s first, second, third, and fourth claims for relief are
remanded to the District Court for Arapahoe County, Colorado, where the case was
filed as case number 2016CV31378, for further proceedings. It is further
ORDERED that plaintiff’s seventh claim for relief is also remanded to the District
Court for Arapahoe County, Colorado, insofar as it states a claim under Article II, § 25
of the Colorado Constitution. It is further
ORDERED that defendants’ request for attorney’s fees is DENIED. It is further
19
In light of this resolution, the Court need not determine whether plaintiffs’
complaint seeks exemplary damages, a point which the parties dispute. See Docket
No. 47 at 35; Docket No. 54 at 29.
31
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Aplt. App. Pg.
5:21:57
407 PM
ORDERED that Defendants’ Motion to Preclude Plaintiff’s Expert Dan Corsentino
[Docket No. 44], Plaintiffs’ Motion to Exclude Expert Testimony [Docket No. 45],
Plaintiffs’ Motion to Strike Expert Testimony [Docket No. 77], and Plaintiffs’ Motion to
Strike Portion of Defendants’ Reply or in the Alternative, Permit Sur-Reply by Plaintiffs
[Docket No. 69] are DENIED AS MOOT. It is further
ORDERED that all other pending motions, to the extent not addressed in this
Order, are DENIED AS MOOT. It is further
ORDERED that, within 14 days of the entry of this Order, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed.
DATED January 8, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
32
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5:21:57
408 PM

ATTACHMENT 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01956-PAB-MJW
LEO LECH,
ALFONSIA LECH, and
JOHN LECH,
Plaintiffs,
v.
CHIEF JOHN A. JACKSON,

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,
and
THE CITY OF GREENWOOD VILLAGE,
Defendants.
FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant
to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Pursuant to the Order entered by Judge Philip A. Brimmer on January 8, 2018, it is
ORDERED that Defendants’ Motion and Brief in Support of Summary Judgment
(Doc. 47) is granted in part and denied in part. It is
4/30/2018
Aplt. App. Pg.
5:24:11
409 PM
FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary Judgment (Doc.
48) is denied. It is
FURTHER ORDERED that Plaintiffs’ fifth and sixth claims for relief are dismissed
with prejudice. It is
FURTHER ORDERED that Plaintiffs’ seventh claim for relief is dismissed with
prejudice insofar as it states a claim under the Fourteenth Amendment of the U.S.
Constitution. It is
FURTHER ORDERED that Plaintiff’s first, second, third, and fourth claims for relief
are remanded to the District Court for Arapahoe County, Colorado, where the case was
filed as case number 2016CV31378, for further proceedings. It is
FURTHER ORDERED that Plaintiff’s seventh claim for relief is also remanded to
the District Court for Arapahoe County, Colorado, insofar as it states a claim under Article
II, § 25 of the Colorado Constitution. It is
FURTHER ORDERED that Defendants’ request for attorney’s fees is denied. It is
FURTHER ORDERED that Defendants’ Motion to Preclude Plaintiff’s Expert Dan
Corsentino (Doc. 44), Plaintiffs’ Motion to Exclude Expert Testimony (Doc. 45),
Plaintiffs’ Motion to Strike Expert Testimony (Doc. 77), and Plaintiffs’ Motion to
Strike Portion of Defendants’ Reply or in the Alternative, Permit Sur-Reply by Plaintiffs
(Doc. 69) are denied as moot. It is
FURTHER ORDERED that all other pending motions, to the extent not addressed
in this Order, are denied as moot. It is
FURTHER ORDERED that judgment is entered in favor of Defendants and against
Plaintiffs. It is
4/30/2018
Aplt. App. Pg.
5:24:11
410 PM
FURTHER ORDERED that, within 14 days of the entry of this Order, Defendants
may have their costs by filing a Bill of Costs with the Clerk of the Court. It is
FURTHER ORDERED that this case is closed.
Dated this 9th day of January, 2018.
FOR THE COURT:

JEFFREY P. COLWELL
By: s/C. Pearson

C. Pearson, Deputy Clerk
4/30/2018
Aplt. App. Pg.
5:24:11
411 PM

Leo Lech, Et. Al., v. Chief John A. Jackson, Et. Al.: Appellants' Opening Brief

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Leo Lech, Et. Al., v. Chief John A. Jackson, Et. Al.: Appellants' Opening Brief

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Appellate Case: 18-1051 Document: 01019984195 Date Filed: 04/30/2018 Page: 1

CASE NO. 18-1051

On Appeal from the United States District Court

APPELLANTS’ OPENING BRIEF

Attorney for Plaintiffs-Appellants

ORAL ARGUMENT IS REQUESTED

PDF FORMAT ATTACHMENTS ARE INCLUDED

April 30, 2018

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF PRIOR RELATED APPEALS ............................................... viii

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE ..................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................5

I. STANDARD OF REVIEW. ...................................................................................6

II. THE PURPOSE AND CONSTRUCTION OF THE TAKINGS

A. U.S. Supreme Court Precedent Supports a Taking in this Case

IV. THE STATE AND FEDERAL TAKINGS CLAUSES ARE NOT

V. THE POLICE POWERS TO SEARCH AND SEIZE PROPERTY

VI. THE “EMERGENCY EXCEPTION” IS INAPPLICABLE TO THIS

VII. THE U.S. DISTRICT COURT’S RULING IS AN

CERTIFICATE OF SERVICE ................................................................................37

28 U.S.C. § 1291 ................................................................................................................. 1

28 U.S.C. § 1331 ................................................................................................................. 1

28 U.S.C. § 1367 ........................................................................................................... 1, 31

Colo. R. Crim. P. 4 ............................................................................................................ 30

F.R. Crim. P. 41 ................................................................................................................. 30

Colo. const. art. II, § 15 ....................................................................................................... 7

U.S. Const. amend. V .......................................................................................................... 6

U.S. Supreme Court Cases

Andrus v. Allard, 444 U.S. 51, 65 (1979) .......................................................................... 17

Armstrong v. United States, 364 U.S. 40, 49 (1960) ........................................................... 7

Bennis v. Michigan, 516 U.S. 442, 452 (1996) ................................................................. 19

Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2427 (2015) ..................................................... 9

Mitchell v. Harmony, 54 U.S. 115, 135 (1851) ................................................................. 24

Mugler v. Kansas, 123 U.S. 623 (1887) ...................................................................... 28, 29

Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017) ....................................................... 16, 17

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)) ..................................................... 17

Nwagbologu v. Regents of Univ. of New Mexico, 33 Fed. Appx. 449, 451

(10th Cir. 2002) ................................................................................................................... 6

Patty v. United States, 17-817C, 2018 WL 847625, at *1

(Fed. Cl. Feb. 14, 2018) ......................................................................................... 13, 20, 21

Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999) ................................................ 6

Richard v. U. S., 282 F.2d 901 (Ct. Cl. 1960) ................................................................... 10

38 P.3d 59, 63 (Colo. 2001) .................................................................................... 7, 11, 18

(Colo. 1992) ..................................................................................................... 19, 28, 29, 31

Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 ..................................... 27

(Colo. 1981) ................................................................................................................ 15, 18

Srb v. Bd. of Cnty. Comm'rs, 43 Colo.App. 14, 18 (1979) ................................................ 16

Town of Dillon v. Yacht Club Condominiums Home Owners Ass'n,

325 P.3d 1032 (Colo. 2014) .............................................................................................. 28

Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 296-97 ......................................... 28

STATEMENT OF PRIOR RELATED APPEALS

in the pending appeal.

/s/ Rachel B. Maxam

with Rule 4(b)(1), F.R.A.P., on February 8, 2018.

STATEMENT OF THE ISSUES

Clauses of the U.S. Constitution and Colorado Constitution.

STATEMENT OF THE CASE

In the afternoon of June 3, 2015, an officer was dispatched to a local Walmart to

the Greenwood Village Police Department (“GVPD”) responded to an alarm triggered at

rounds) were used. Aplt. App. at 290; 311-15.

individuals involved.” Aplt. App. at 291; 322; 329.

enforcement’s efforts to apprehend a suspect barricaded inside an innocent third party’s