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Because of governmental immunity, a criminal defendant may not sue law enforcement to recover property seized in an investigation, the Colorado Court of Appeals ruled on Thursday.

Police arrested James Woo in Seattle’s airport in April 2016 shortly before he boarded his intended flight to Hong Kong. That month, Woo had murdered his ex-girlfriend Julie Tureson — shooting her, handcuffing her inside a storage unit in Colorado Springs and covering her body in baking soda.

A judge sentenced him to life in prison without parole. Woo appealed his conviction, but that case is still pending.

As part of his arrest, officers seized Woo’s luggage and searched his apartment. In 2019, Woo filed a replevin action against the El Paso County sheriff's and district attorney’s offices, which is an attempt to recover an individual’s actual property rather than its monetary value. Specifically, Woo sought the return of his documents, jewelry, an iPad, a camera, clothing, cash, credit cards and a computer. 

He indicated they were not part of the evidence at his trial and had no value in future judicial proceedings. Woo also asked for damages relating to the unlawful possession of his property. While his allegation was not that law enforcement wrongfully seized the property, Woo instead argued that the continued detention was a violation.

The defendants asserted protection under the Colorado Governmental Immunity Act, which generally bars liability claims against public entities. The Colorado Supreme Court ruled on the issue in 1992, after Desert Truck Sales Inc. sued Denver for impounding a vehicle during the city’s investigation of auto theft. Desert Truck claimed the governmental immunity law did not cover replevin actions and, even if it did, that meant the law was unconstitutional because it sanctioned the taking of private property without compensation or due process.

The court’s majority decided that a government’s seizure of property is a legitimate exercise of police power, and is not the same as taking private property for public use via eminent domain. Then-Justice William H. Erickson acknowledged that “[t]he doctrine of sovereign immunity, in some instances, is inequitable, but the General Assembly recognized that the state and its political subdivisions provide essential public services which would be unduly hampered by the imposition of unlimited tort liability.”

In Woo’s case, the Court of Appeals panel pointed to the Desert Truck decision in rejecting his claim.

The governmental immunity act, wrote Judge Anthony J. Navarro, “does not waive immunity for an action in replevin to obtain possession of property validly seized pursuant to a public entity’s police power and to recover damages for its detention.”

Navarro added that no statute or rule governs the process for criminal defendants to recover legally-seized property, but that Woo could have sought its return through the criminal court where his prosecution occurred. Woo further countered that decisions from the Court of Appeals had reached differing conclusions about whether criminal courts retain jurisdiction to hear property issues.

“True,” Navaro admitted. “So far, our supreme court has not resolved this debate.”

Nevertheless, the panel concluded that the governmental immunity act did not violate his constitutional right to due process because “parties do not have a constitutionally protected property right to sue the government for damages for their alleged injuries.”

J.P. Burleigh, an associate member of the Cincinnati Law Review, wrote earlier this year about the federal judiciary's endorsement of the use of police powers without compensation in a Greenwood Village case involving the family of Leo Lech. Police destroyed their home during a daylong standoff with a suspect. In the decision issued last year, the circuit judge wrote that if the government does not use its powers of eminent domain, the Takings Clause of the Fifth Amendment does not require compensation.

"If true, this could exempt governments from paying for taken property in many situations, from destroying homes in police raids to commandeering hospitals to fight coronavirus," wrote Burleigh. "The Supreme Court should put a stop to this and use the Lech case as an opportunity to clarify that the police power is the outer limit of government authority, not a free pass to disregard the Takings clause of the Fifth Amendment."

The case is Woo v. El Paso County Sheriff’s Office et al.

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