NRPLUS MEMBER ARTICLE L aw enforcement costs money, and taxpayers share the burden. But innocent bystander Carlos Pena got stuck with the full tab when an armed man picked his business at random for a police standoff in Los Angeles.
Pena was working in his shop, NoHo Printing and Graphics, when he heard a helicopter on August 3, 2022. Pena stepped outside to investigate and saw the man running toward him, pursued by U.S. marshals with weapons drawn. The man assaulted Pena, then rushed into the shop alone and closed the door.
What followed was a 13-hour siege, led by a Los Angeles Police Department SWAT team. Hoping to subdue the felon, officers fired more than 30 teargas canisters through the shop’s windows, walls, doors, and roof. Officers eventually entered, only to discover that the felon had escaped. What remained was more than $60,000 in damage.
That would come to less than 2 cents per person in Los Angeles. But the city decided to put the entire cost on Pena. He tried filing an insurance claim, but coverage is not available for government damage.
Pena lost a perverse lottery.
Policy-makers generally budget for law-enforcement expenses, using public funds for public uses. They don’t pick one random person each year to fund the police chief’s salary, for example. Yet they single out one expense — collateral damage from crime — and let chance decide who pays for it.
Rather than accept the financial hardship, Pena fought back with a constitutional lawsuit on July 19, 2023, in the U.S. District Court for the Central District of California. Our public-interest law firm, the Institute for Justice, represents him.
His case hinges on a Fifth Amendment provision called the takings clause, which lays out a simple rule for the government: If you break it, you buy it. Citizens have used the takings clause over the centuries to demand “just compensation” for all manner of losses when the government takes private property by force for public use.
Sometimes this happens directly through eminent domain, which transfers land ownership to the government. Other takings occur indirectly. People retain title to their property but suffer losses anyway, such as when government contractors build a dam that leaves nearby farms flooded.
The police also engage in takings when they intentionally and foreseeably destroy private property for a public use. In Pena’s case, the public use was removing a dangerous felon from society — a legitimate government action that benefits everyone. The plain language of the Fifth Amendment should make this clear, but only Minnesota and Texas have explicitly included police action as a type of taking.
California and South Dakota have done the reverse, carving out special exemptions for the police under their state constitutions. Many courts have shown similar deference to the police, giving law-enforcement agencies something close to a categorical exclusion from the takings clause.
The message for innocent bystanders is clear: tough luck.
This is what Leo and Alfonsina Lech heard after an armed shoplifter chose their home at random for a 2015 police standoff in Colorado. Officers apprehended the suspect but left the home uninhabitable. When the Lechs sued for damages, they got stiffed at the Tenth U.S. Circuit Court of Appeals.
Rulings like this have been the norm in recent decades. But homeowner Vicki Baker scored a victory in 2022 that could represent a change. After officers damaged her home while apprehending a dangerous felon in Texas, a federal judge rejected the city’s request for blanket immunity from the takings clause. A jury later awarded Baker nearly $60,000. The city took the case to the Fifth U.S. Circuit Court of Appeals, which heard oral arguments on June 6, 2023. If Baker wins again, all property owners in Louisiana, Mississippi, and Texas would benefit.
Pena hopes to create his own precedent in California. He wants compensation for the taking, but he also wants to protect other individuals from government abuse.
“When all the damage took place, it broke me not just economically but mentally,” he says. “I wouldn’t want anybody else to keep losing everything they have worked for all their lives.”