A federal appeals panel said a store owner can’t bring a Fifth Amendment lawsuit against the city of Los Angeles after police damaged his business while pursuing a fugitive.
Carlos Pena sought to hold the government liable for physical damage to his print shop when Los Angeles Police Department SWAT officers ended a 13-hour standoff with an armed fugitive in August 2022 by shooting tear gas canisters through the windows, walls, roof and door.
Pena did not contest whether the police conduct was legal and reasonable.
Pena claimed his store and its inventory suffered damages of at least $60,000 and alleged the government owed him compensation under the Fifth Amendment’s Takings Clause.
After the U.S. Marshals Service denied his initial request, he filed two claims with the city. After receiving no response, Pena took the matter to federal court where U.S. District Judge John Walter ruled that what happened to the store “constituted a valid use of police power and did not constitute a taking for purposes of the Fifth Amendment.” That prompted his challenge to the U.S. Ninth Circuit Court of Appeals.
Judge Mark Bennett wrote the panel’s opinion, filed Nov. 4; Judge Richard Tallman concurred. Judge Michelle Friedland wrote a special concurrence.
“Pena contends that even though the actions were reasonable and lawful, the city’s destruction of his property nonetheless comes with a price,” Bennett wrote. “At the time of the founding, the principle of just compensation did not require payment in cases where, like here, the government reasonably and necessarily destroyed property in pursuit of a dangerous fugitive. History counsels that such reasonable and necessary destruction by law enforcement officers falls outside the scope of the Takings Clause.”
Bennett said the U.S. Supreme Court repeatedly affirmed that basic principle, leading the majority to affirm Judge Walter’s summary judgment dismissing the claim while noting states and municipalities can craft their own laws allowing for compensation in such circumstances. He further explained the other federal circuit appellate panels are split on the questions girding Pena’s litigation, and noted the majority agreed with a 2023 U.S. Fifth Circuit Court of Appeals ruling, Baker v. City of McKinney, which held that “as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons.”
The majority traced the history of just compensation from Magna Carta to English common law to the American colonies, noting laws “expressly disallowed compensation when the state seized privately owned but unimproved land for public use” while others, including the 1641 Massachusetts Body of Liberties, mandated fair payment when governments seized private property.
Against the backdrop of forcible acquisition of supplies for the colonial military during the American Revolution, Bennett continued, “James Madison authored the Takings Clause animated by concerns that although the rights of property had been ‘for obvious reasons, unattended to in the commencement of the Revolution,’ ‘more correct ideas on the subject’ required that the government expressly safeguard those rights.”
To accept Pena’s framing, the majority reasoned, would mean the government might owe private entitles “when ambulances carrying patients sideswipe private vehicles; errant bullets break store windows in firefights with criminal suspects; and police commit any form of property damage in pursuit of criminal suspects, no matter how reasonable, lawful or necessary as part of the state’s duty to protect public safety and save the lives of its citizens.”
The practical effect would be interference with a primary obligation of protecting public safety by keeping government actors attuned to financial consequences, the majority said. They noted the complications of applying the logic to firefighting and stressed the option of compensation through smaller government entities.
In her concurrence, Judge Friedland said she would side with the city on different grounds: not whether Pena was owed compensation for the government damaging his store, but whether he actually suffered any infringement of property rights at all.
“I would hold that the Los Angeles police’s actions fell under the search-and-arrest privilege that serves as a background limitation on all” such rights, Friedland wrote. “Courts have recognized that common law search-and-arrest privilege for more than two centuries,” albeit with limitations on lawful searching and arresting, reasonable belief of the presence of a wanted party on private property and officer liability for unreasonable exercise of police power, including intentional or negligent property damage.
In a footnote to the majority opinion, Bennett wrote the question of whether a property right exists is a question of state law and further said the California Supreme Court, in an earlier case “with substantially the same claim as Pena’s,” resolved the matter without concluding no property right was invaded.
Still, Friedland challenged the majority’s analysis of several centuries of jurisprudence and said dismissal on her favored ground “would be a better-supported and more straightforward” option avoiding unneeded focus on just compensation and the historical concepts of “property.”
The Institute for Justice, of Arlington, Virginia, and Bona Law, of La Jolla, California, represented Pena.
The city was represented by its attorney’s office.
