ARE MUNICIPALITIES AND COUNTIES LIABLE UNDER THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT FOR PROPERTY DAMAGE DURING POLICE EMERGENCIES?
On November 4, 2025, the Ninth Circuit Court of Appeals decided Pena v. City of Los Angeles,[i] in which the court of appeals examined whether a city is liable under the Takings Clause of the Fifth Amendment when the police destroy a person’s property during a tactical operation to apprehend a fugitive.
In Pena, on August 3, 2022, officers from the LAPD and Deputy U.S. Marshals were in pursuit of an armed fugitive. The fugitive fled into Pena’s print shop, kicked Pena out, and barricaded himself. LAPD officers and deputy U.S. Marshals surrounded the print shop during a thirteen-hour standoff. LAPD SWAT officers shot dozens of tear gas canisters into the shop through walls, doors, the roof and windows of Pena’s store, causing approximately $60,000 in damage. When officers entered the store, they learned the fugitive had escaped.
Pena agreed that the officers’ conduct was reasonable and lawful. However, Pena subsequently sued the City of Los Angeles under the Takings Clause of the Fifth Amendment, alleging a taking of his property without just compensation, based upon the $60,000 of damage from the operation. Pena filed a motion for partial summary judgment and argued that, when the government destroys private property for public purposes, it is a “taking” under the Takings Clause. The district court denied his motion and he appealed to the Ninth Circuit Court of Appeals.
On appeal, while Pena agreed that the officers’ actions were reasonable and lawful, he also argued that the cost of the destruction of his property for the public good, specifically, apprehending a fugitive, should be paid by the government.
The court noted that the Supreme Court has held the States’ police powers allow law enforcement to combat crime and to damage or destroy private property in doing so, as the public interest outweighs private interests. Specifically, the Court stated
The States’ police powers authorize law enforcement officers to prevent and combat crime, including violent crime. United States v. Morrison, 529 U.S. 598, 618, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (“Indeed, we can think of no better example of the police power . . . than the suppression of violent crime and vindication of its victims.”). The government may damage or destroy private property under its inherent police powers. See Miller v. Schoene, 276 U.S. 272, 279-80, 48 S. Ct. 246, 72 L. Ed. 568 (1928) (“[W]here the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”).[ii]
The court of appeals also examined other federal circuit courts of appeal decisions. The Ninth Circuit noted that the Fourth, Fifth, Sixth, and Federal Circuits have held that there is “no categorical police-power exception to the Takings Clause.” However, despite the lack of a categorical exception, no precedent examined found that the government was liable under the Takings Clause for damage caused by the police when they destroyed private property while protecting public safety.
The court of appeals noted that the Seventh Circuit has held that the Takings Clause only applies when the government exercised the power of eminent domain, and does not apply to police power.
The Third and Tenth Circuits have “adopted a broad police-power exception to the Takings Clause.”[iii]
Thus, after a review of court precedent dating back to the Founding, the Ninth Circuit held as follows:
[W]e 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.[iv]
The court of appeals noted that while a person does not have a remedy under the Takings Clause of the Fifth Amendment when law enforcement officers destroy private property while reasonably protecting public safety, individual States may offer remedies for citizens based on state law and state constitutions. Additionally, local governments may offer remedies to citizens in such situations.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i]No. 24-2422 (9th Cir. November 4, 2025 Unpublished)
[ii] Id. at 8 (emphasis added)
[iii] Id. at 12
[iv] Id. at 12-13 (emphasis added)
