heart of the purpose of the fifth amendment take from taking clause as the u s supreme court stated in armstrong the us quote the fifth amendment guarantees that private property shall not be taken for a public use without just compensation it's designed to bar government from forcing some people loan to bear public burdens which in all fairness and justice should be borne by the public as a whole this is a foundational principle entire burden of actions taken by the police for the benefit of the public as a whole their home was destroyed and they alone had to bear the cost of that decision by the police to destroy a home because they thought it was necessary suspect there is truly only one question for the court to decide in this case if an innocent person's property is destroyed by the police for the public benefit about for handing a suspect in that person is titled to just compensation under the fifth amendment of the us constitution and the colorado constitution as well or should that person be forced to bear the burden of actions taken for the benefit of the public do you view this is a as a permanent taking down as opposed to a temporary physical invasion yes i can get into that a little further or right now you know this is a physical per se takings you can do now ok all right i would submit that it viable use of the property was destroyed as a result of the actions of the police the homeless declared uninhabitable and that's where i just want to clarify least it was my understanding there to sort of rubrics you can operate under you could say this is a permanent physical taking or by virtue of being a temporary physical invasion and then that would implicate test that you would have to do a legal test and so when i'm trying to get out is are you saying that there is this homeless completely took take in such that there was no need for us to engage in this legal process well the home itself was completely taken in the sense that it was completely destroyed ok if there is no compensation as a takings in circumstances such as this case we're talking about people actually being left homeless because of the decisions of the police how does this fit within our framework of justice and fairness that the police can destroy someone's home in lead an innocent person to bear the cost of that decision rather than that cost being imposed on the public as a whole in this case you know the home was completely destroyed it was declared uninhabitable by the city there's no question that nobody could live there it left three people without you know their residence and they had almost all of their personal property destroyed in this is all the result of a hundred thirty five chemical munitions in the scope of your action was the suit against the city greenwood village right and then and then also again the individual officers had my am i correct on that correct and let's assume let's just assume for the moment that you were successful as relates to the miss a power of the the court in her judgment against you as it relates to both what would happen how what was that disposition look like i mean with the court should the court have an opportunity the term why isn't this an exercise of police power which seems to be pretty clearly the fall within that general area but why is that and we said in lam that's an exercise of police power is for the public good and we distinguish that from the public use so what makes this case different sure and so first answer the question i think that this discussed publicly is on the needs of our society and you know you look at cases like like the low you know we're talking about the public purpose in that case being economic development so public purpose has been expanded beyond just traditional eminent domain proceeding that i guess more directly benefit the public like a road public purpose is has been held to be much more expansive  benefit to the public in but here we're talking about police power sharing i'd like you to find to those cases discussing police power and the fact that the police exercise that power for both the public good as well as in this case the good of the individual i'm asking you to focus on the police power so you raise a really good question because the u s district court following customer that case in california set up this sort of false dichotomy between adverse combination also of course regulatory taking we're all talking about exercise as a police power here so can police powers to that point are the exercise of police are results in a taking there's no is there an exception for the taking doctoring to for exercises of well all kinds of taking the result as as a result of the police powers being exercised by police cars not always exercising to taking situation is not necessarily can be exercised through eminent domain proceedings which you know you can argue one way or another are  usage or whatever the circumstance happened to be the dam broke his flooded land destroying that's also taking to even though it was an accidental consequence of government action well government action doesn't always equal  say yes and not necessarily because the police powers are generally the powers of state and local actors to act and more specifically are police are generally the province that regulate the use of property that is the traditional example police powers we're not talking about regulating property here we're talking about a decision by one government employee to destroy property because he thought it quote in force was enforcing the law so we're not talking about the police powers in the sense here that the legislature passed laws that regulates the use of property can even destroy the value of that property we're talking about an expanse of the police powers to include the police can decide to take any action they desire if they think it furthers enforcing the law there's the big difference between the police powers that the u s district court was talking about here to quote enforce the law in what we would normally think about as a police powers in terms of being able to regulate property or even destroy it because it's and it's a nuisance  so this is been a unseen expansion of the police powers that property can be destroyed in the name of enforcing the law did i answer all of your honors questions and all of that yes ok so one of the one of the key issues in this case is the public policy implications of this decision that's been a large focus of this and i imagine it interests your honour's the most  well we have no evidence of that actually ever happened even though this is the law in two states for dozens of years  so curiously the defense argues that all being all things being equal in this exact same situation if the city had to pay for the damage the police would be like so concerned that the city's money would be spent that they would actually put officers lives at risk this is really doesn't make sense you would put lives at risk to save the city money but you wouldn't put lives at risk to save the i'm sorry that's about the way to phrase it than property nobody has ever argued in this case that that that lives should be expended used for the sake of saving property nobody has ever made that argument the only thing we're arguing here is that if the police deem it necessary to destroy property to apprehend the suspect then they should have to compensate the vigil innocent innocent being key homeowner so he does not have to bear that entire loss for something that was done for the benefit of the public as a whole keep your eye on your own time so if you aren't told of the takings occur in this case would not stress the city is clearly a spirit of argument on the part of greenwich village that they would be so concerned with the city's bottom line if they had to pay for these kind of incidences that they would put officers lives at risk certainly never make this argument in an excessive force case that fourth amendment rights should be violated police should not have to use restraint in in arresting people because takings provisions of the colorado in federal constitution mandate an award of compensation and an emergency police situation where lives are at stake but property is ultimately damaged with the exception of th deal in weighing the cases decided upon state constitutions and upon policy the case law has consistently answered that question in the negative y well first police powers especially in an make decisions that are life and death decisions were sent property is not in the mix of that and that's why condemnation or takings law is not applicable to this generally aren't well talk to me about what your conception is of what the case law defines to be an emergency exception what is that look like well an emergency exception is when lives are at stake this is an emergency exception as the district court found this isn't even close to lie because we're dealing with a gun then who has attempted to harm or kill police officers the police have d use of force trying to get him out of the house which incidentally as pointed out benefits the lex too as i don't think they want an armed gunman in their house and so they do  to tear the house apart right well i understand that your honor but the point is that there is an emergency situation when you have a gunman in a house who can fire down upon police officers who can fire at vehicles and eye to twenty five that are passing who can fire at neighbors who are sheltered in place for a long period of time i don't think you need a chicago fire to be the call is an imminent emergency it is an imminent emergency we have someone here they going to end this situation the point is that when they went in the first time they were shot at now the way the police handled this was alternately to create sight lines so that it moved the suspect to a corner of the house he could not ambush them from there and had to come out with a suicide by cop last stand the snipers could have shot him but the point is that they moved him into that one little spot they knew they couldn't be ambushed and then they went and took him and he still resisted but they saved the potential of police lives i think at least i don't and the argument of the appellant to be criticizing the police action the question is just what do you pay for i mean i mean that's that's what in all of these takings cases one can debate whether the government did a good thing i mean they had a public use i did a good thing wonderful pay for what so that's what we're talking about here right i will have to this court's decision in lambert has volpi which says police powers should not be confused with  nt domain because under police powers property can be damaged and compensation is not owed you follow that up with business versus michigan which says the government may not be required to compensate in order for a property which it is already lawfully acquired under the exercise of governmental authority as within the power of eminent domain every single oakley's action can be said to be for the public use that's not the question here is was it for the public good and is there a distinction and the difference is that the police actions here concern public welfare not public use they didn't take the house they didn't use the house the lex didn't donate this property for the public good it didn't which the city it didn't enrich the residents of the city at the expense of the lax the actions taken by police were law is that they did not take the house for the use of the public they took the house for the public welfare and i distinguish between those two things because otherwise every time a police officer the the drugs under seizure held them for evidence and let them expire and they're used as evidence there's damage cause and arrest warrants there's damage caused and search warrants there's damage caused when please stop a high speed chase which is very dangerous by using it to move or there's potential damage every time there's a fire if someone gets to say well you came in a new stop fire but you create created more damage than in a taking what you're talking about in the context of eminent domain or not i mean if you took if you if he or you had resulted in taking property and you did it for a public purpose why can that not be a taking i mean apprehend a dangerous criminal what's your best case for the distinction you're i'm sorry my latest case yes please bachman which is a two thousand and seventeen decision which is exactly on point and which says exactly what i'm saying and customer which is a california case which distinguished seal and the minnesota case both of them involved exact sorts of things please having to take a dangerous person out of a place of business where the owners innocent of any wrongdoing and both of them said this is not the time this is a police action and this distinction that they make and they make it fairly clearly so unless we're going to say to the police you've got to add something in the mix especially if you're in a small department you've got to decide learn not you want to take an action that destroys property but saves lives or whether or not you should be concerned and throat the property issue in the mix in this case as you point out it's nineteen hours what was left to do except to try to take this person into arrest and the way to do it safely was done it wasn't just the commander of greenwood village he had with him throw swat officers one from aurora one for rappel county who both consulted with them and agree this is the way we have to proceed and yes i agree that sometimes people have to a very helpful one doesn't do anything for us all right we're talking about the fact that when you take property why should one individual experience the cost the full cost of the taking of that property when it was for a public purpose you can use whatever language you want least we're trying to catch and capture a armed criminal or a dangerous criminal it will not only would benefit the less but it would benefit the public so why should the lex be the ones that pay the burden for that because we don't want police first of all it's not part of takings law as i've indicated there's only two cases that have helped and secondly because we don't want the police to me making policy decisions about whether or not they should be using property when they're actually exercising emergency police powers to save lives so it is if in this case you say ok we've got to consider property then the police only have two options one is to do nothing and the other option is to say ok let's just send in another team that's already been fired on and we won't create the sightlines and they might be ambushed they had other options they were at the nineteenth hour how about the twentieth hour how at the twenty first hour that it's not clear to me at all that they didn't have options and they needed a decision i'm not second guessing that decision i'm just saying that they done and they do that historically why can't they do that here but during that period of time as i said he's in the position of elevation he can fire on cars and i to twenty five neighbors who are who are sheltered in place can be at risk police officers who are manning the perimeter can be at risk so yeah i think that that this was a difficult situation and it happens with some frequency as we can see in bachmann and and customer but the point is is that he's going to cause potentially harm to the public had we not apprehended and you can say well maybe would have come out after three days or maybe four days or five days or six days got a houseful of stuff  maybe he wouldn't come out for weeks the point is that we're putting people at risk and we're doing it by the society that we want to protect property over that and the danger is clear one other thing that was raised that i do want to explain is that in the reply brief point is to argue that the gen lead that that argument could be made that the laws clearly established so just the arena and for the purpose of having this mr prong to a qualified immunity well going back to the point whether you can imagine or not the courts in out on that issue if they were to succeed why would it be appropriate on remand for the court to take up the question of whether they should get qualified immunity or not they're already there or he sued using a remedy that they have which is total they've already sued and a draw officers