Takings Clause Does Not Cover Destruction of Shop by Police

Wednesday, November 5, 2025

Page 3

Ninth Circuit:

Takings Clause Does Not Cover Destruction of Shop by Police

Opinion Says No Compensation Due to North Hollywood Store Owner Whose Property Was Demolished When LAPD Officers Fired Tear Gas Cannisters Inside to Catch Armed Suspect, Finding ‘Necessity’ Exception

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals held yesterday, in a case of first impression, that the Takings Clause of the U.S. Constitution does not demand that the City of Los Angeles compensate a North Hollywood printing shop owner for the alleged destruction of his property caused by police officers who, in trying to apprehend an armed suspect hiding inside, fired dozens of tear gas cannisters through the walls, door, roof, and windows of his store.

Noting that the owner did not dispute that the officers’ conduct was reasonable under the circumstances, the court sided with the Fifth Circuit in finding a necessity exception to the Takings Clause of the Fifth Amendment, which provides that “private property” shall not be “taken for public use, without just compensation.”

Yesterday’s opinion, authored by Circuit Judge Mark J. Bennett and joined in by Senior Circuit Judge Richard C. Tallman, points out that “[o]ur sister circuits are split on the issue” of whether there is a “categorical police-power exception” to the Takings Clause. However, Bennett wrote:

“[B]ecause ‘it is not necessary to decide’ whether there exists a categorical police-power exception to the Takings Clause, ‘it is necessary not to decide’ whether such a broad exception exists….Accordingly, we hold only that no taking occurs for the purposes of the Takings Clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety.”

Circuit Judge Michelle T. Friedland penned a concurring opinion, saying that she agreed with the result but “would hold that the Los Angeles police’s actions fell under the search-and-arrest privilege that serves as a background limitation on all property rights,…so no property right was infringed at all and, accordingly, no compensation is owed.”

Takings Clause Claim

The question arose after Carlos Pena filed a complaint against the city in July 2023, asserting a Takings Clause claim under 42 U.S.C. §1983. In the pleading, he alleged that, on Aug. 3, 2022, a man ran into his NoHo Printing & Graphics store, forced Pena outside, and barricaded himself in the location while officers with the Los Angeles Police Department SWAT team surrounded the store.

Pena asserted:

“[T]he SWAT team….fired dozens of tear gas cannisters that tore through the walls, doors, roof, and windows. The resulting teargas permeated the entire shop, ruining virtually everything inside and rendering it uninhabitable. The estimated cost of repairs exceeds $60,000. The damage is excluded from Carlos’s insurance coverage, which like most policies does not cover damage caused by the government….Unable to afford the repairs to his shop, Carlos’s shop is still closed—nearly one year later. His livelihood—a business that he spent decades building and which he hoped to pass on to his son—has been destroyed.”

He claimed that he contacted the city multiple times to request some form of compensation, but his pleas were either ignored or he was told that the municipality is “not liable.”

Pena moved for partial summary judgment on the issue of liability, arguing that when the government intentionally destroys private property for public purposes, it is a “taking” within the meaning of the Fifth Amendment. On March 25, 2024, District Court Judge John F. Walter of the Central District of California denied the request, saying:

“[B]ecause the damage to Plaintiff’s shop was caused by the LAPD SWAT team’s use of police power that Plaintiff concedes was reasonable, it did not constitute a taking for purposes of the Fifth Amendment. As a result, the Court must necessarily conclude that Plaintiff is not entitled to summary judgment on the issue of liability on his sole claim for the taking of private property without just compensation in violation of the Takings Clause….”

Following the order, the parties stipulated to judgment for the city, which was entered on April 4 of last year.

On appeal, Pena argued that, even though the officers’ actions were lawful and in the public interest, the Takings Clause still required payment for the city’s destruction of his property. Rejecting this contention, Bennett wrote:

“We hold that Pena fails to state a Takings Clause claim. The meaning of the Takings Clause at the Founding and two centuries of precedent demonstrate that the government’s destruction of private property when necessary for the defense of public safety is exempt from the scope of the Takings Clause.”

Look to History

The jurist said the court must “look first to the history” to determine the “scope of the constitutional right granted by the Takings Clause,” remarking:

“Pena cites no Founding-era examples—and we could find none—of either states or the federal government establishing that the state’s destruction of property out of necessity in the defense of public safety required…the payment of just compensation. And when the historical record does not support the scope of a constitutional claim as alleged, ‘[t]he absence’ of such support is itself ‘weighty evidence’ counseling against the expansion of constitutional claims.”

Addressing “[j]urisprudence since the Founding,” he acknowledged high court opinions that held that the Takings Clause required recompense in certain circumstances involving the infringement of private property rights by the government in serving the public good, including the intentional flooding of real estate, condemnation proceedings, and some regulatory takings. However, he wrote:

“But the Supreme Court has never held that the State’s reasonable and necessary destruction of property under its police power constitutes a compensable taking.”

Wartime Destruction

Citing other cases finding that the Takings Clause did not demand payment for the destruction of private property during wartime, he opined: “While there are obvious distinctions between the government’s exercise of its wartime powers and the actions of domestic law enforcement, this does not mean that the Supreme Court’s treatment of the Takings Clause in the wartime context provides us with no meaningful guidelines in the circumstances before us. The rationale [of those cases] is directly applicable to Pena’s situation, as…the Supreme Court addressed the Government’s destruction of private property through state actions taken to further public safety—the same circumstances present here.”

He reasoned that “practical” considerations also weighed against Pena, commenting:

“Expanding the scope of the Takings Clause as Pena envisions it would cover essentially all government destruction of private property, including 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 jurist noted that ‘[m]unicipalities may…possess the authority to resolve any perceived injustices that arise in circumstances akin to those here” and added:

“The reckless actions of a fugitive and, consequently, the necessary and reasonable actions of law enforcement officers caused Pena to suffer a personal loss. The Takings Clause, however, provides Pena no remedy.”

Friedland’s View

Friedland pointed out that “[c]ourts have recognized [a] common law search-and-arrest privilege for more than two centuries” and argued:

“The police’s intrusion on Pena’s shop falls within the search-and-arrest privilege and thus within a ‘pre-existing limitation’ on Pena’s property rights….Pena does not dispute that the police’s entry was lawful, or that the police’s actions (including the destruction of his shop equipment) were reasonable and necessary for the purpose of arresting the fugitive. I would therefore rely on the privilege to reject Pena’s claim…, holding only that the background restriction on property rights means no taking occurred.”

Asserting that “the cases the majority relies upon did not actually create an exception for circumstances like Pena’s” because they “expressly relied on the fact that the country was in a state of war,” she offered “two additional thoughts on the methodological differences between my concurrence and the majority.”

Reasoning that “relying on background limitations on property rights correctly places the burden on the government to demonstrate the existence of such limits” and that her view “allows the Takings Clause to account for evolving realities of property ownership,” she said that “the search-and-arrest privilege would be a better-supported and more straightforward ground on which to dismiss the claim.”

The case is Pena v. City of Los Angeles, 24-2422.