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Known as the Takings Clause, the Fifth Amendment generally prohibits the government from taking private property for a public purpose without providing the property owner just compensation. In Pena v. Los Angeles Police Department, the Ninth Circuit Court of Appeals attempts to reconcile the Takings Clause with the States' police powers, which authorize law enforcement officers to prevent and combat crime. (United States v. Morrison, 529 U.S. 598, 618 (2000).
Background
On November 4, 2025, the Ninth Circuit Court of Appeals affirmed the lower court's judgment for the City of Los Angeles when Plaintiff Carlos Pena sought compensation under the Takings Clause for damage caused to his store by the Los Angeles Police Department (LAPD). In its ruling, the Court of Appeal defined a necessity exception to the Takings Clause for claims of property damage arising from the lawful, reasonable exercise of police power.
Pena owned and operated a store in Los Angeles. During the course of a thirteen-hour standoff, LAPD officers fired dozens of tear gas cannisters through the door, walls, roof, and windows of Pena's store in an attempt to subdue an armed fugitive who had barricaded himself inside the building. The tear gas caused approximately $60,000 in damage to the store.
At the district court level, Pena moved for summary judgment. Pena did not dispute that the LAPD officers had acted in a manner that was authorized, reasonable, and a lawful use of the City's police powers, but argued that when the government intentionally destroys private property for a public purpose, it constitutes a taking which should be compensated. The City opposed, arguing that the Takings Clause carries an implicit exception for property destroyed pursuant to a valid exercise of the police power. The district court agreed with the City and denied Pena's motion on the grounds that destruction of Pena's property in pursuit of the fugitive was a valid use of police power and thus was not considered a taking for purposes of the Fifth Amendment. Based on the lower court's determinations, the parties stipulated to judgment in favor of the City and Pena then appealed.
On appeal, the Ninth Circuit considered as a matter of first impression whether the government's destruction of private property via the exercise of police power (rather than, e.g., a seizure by eminent domain) may constitute a taking under the Fifth Amendment. In its analysis, the Court looked to the historical record to determine the scope of constitutional rights under the Takings Clause, tracing the roots of the constitutional right to property as far back as the Magna Carta. The Court found that Pena's reading of the Takings Clause was overly broad, and adopting it would result in a taking any time the government intentionally destroyed private property for a public purpose. In declining to adopt Pena's interpretation, the Court pointed to examples such as an ambulance side-swiping a vehicle while transporting a patient to the hospital, errant bullets breaking store windows caused by law enforcement firefights with criminal suspects, and “any form of property damage [caused by the police] 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.”
In affirming judgment for the City, the Court limited its holding to finding that “no taking occurs for the purpose of the Takings Clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety.”
Take Away
The ruling in Pena demonstrates the Court's hesitancy to infringe on the State's police power to defend public safety. However, municipalities should be aware that the Court's ruling does not foreclose the possibility that a taking could potentially occur during the course of what is determined to be an unreasonable exercise of police power.
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