Petition for Writ of Certiorari — Carlos Pena, Petitioner v. City of Los Angeles, California
Supreme Court briefApr 6, 2026
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No. _______
In The
Supreme Court of the United States
CARLOS PENA,
Petitioner,
v.
CITY OF LOS ANGELES,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
MARIE MILLER
INSTITUTE FOR JUSTICE
3200 N. Central Ave.,
Ste. 2160
Phoenix, AZ 85012
JEFFREY REDFERN
Counsel of Record
SURANJAN SEN
ANYA BIDWELL
PATRICK JAICOMO
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
703-682-9320
jredfern@ij.org
Counsel for Petitioner
i
QUESTIONS PRESENTED
In recent years, this Court has seen petitions
where plaintiffs have asserted Takings Clause claims
related to destructive law-enforcement activity. See
Slaybaugh v. Rutherford County, 145 S. Ct. 1959
(2025); Baker v. City of McKinney, 145 S. Ct. 11
(2024); Lech v. Jackson, 141 S. Ct. 160 (2020). Justices
Sotomayor and Gorsuch have recognized that these
cases “raise[] an important question that has divided
the courts of appeals,” Baker, 145 S. Ct. at 11, yet they
felt it was a question that “would benefit from further
percolation in the lower courts prior to this Court’s intervention.” Id. at 13. Since then, the Ninth Circuit
has weighed in, and the Seventh Circuit has reaffirmed its previous approach, adding to the doctrinal
disarray in the lower courts.
The Questions Presented are:
1. Whether the government is exempt from liability under the Takings Clause when law enforcement
officers intentionally destroy an innocent person’s
property in the course of attempting to apprehend a
fugitive.
2. Whether the doctrine of “public necessity” is an
exception to the Takings Clause.
ii
PARTIES TO THE PROCEEDING
Petitioner Carlos Pena is a natural person and was
the plaintiff-appellant in the court below. Respondent
City of Los Angeles was the defendant-appellee in the
court below.
iii
RELATED PROCEEDINGS
U.S. District Court for the Central District of
California:
Pena v. City of Los Angeles
No. 2:23-cv-5821 (April 3, 2024)
U.S. Court of Appeals for the Ninth Circuit:
Pena v. City of Los Angeles
No. 24-2422 (November 4, 2025)
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
OPINIONS BELOW................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL PROVISION INVOLVED ....... 1
STATEMENT ............................................................. 2
REASONS FOR GRANTING THE PETITION ........ 5
I. The Courts of Appeals are divided on
whether and how the Takings Clause
applies to lawful government actions. ............ 7
A. The Police Power Exemption ..................... 7
B. Necessity Exemption.................................. 9
C. Law Enforcement Exemption .................. 11
II. This Court’s intervention is necessary
because the decision below, along with
others rejecting similar claims, is wrong. .... 14
A. The Takings Clause applies to
physical destruction of property. ............. 14
v
B. There is no basis in text, history, or tradition for treating “necessity” as an exception to the Takings Clause. ................ 16
C. This Court’s existing limiting principles do not excuse non-compensation
here. .......................................................... 23
III. The Questions Presented are important. .... 26
CONCLUSION ......................................................... 30
vi
TABLE OF APPENDICES
Page
APPENDIX A:
Opinion of the United States Court of
Appeals for the Ninth Circuit,
Filed November 4, 2025 .................................... 1a
APPENDIX B:
Order of the United States District Court
Central District of California Granting Defendant City of Los Angeles’s Request for
Entry of Judgment, Filed April 2, 2024 ......... 41a
APPENDIX C:
Order of the United States District Court
Central District of California Denying
Plaintiff’s Motion for Partial Summary
Judgment, Filed March 25, 2024 ................... 44a
APPENDIX D:
Order of the United States Court of
Appeals for the Ninth Circuit,
Filed January 23, 2026 ................................... 61a
APPENDIX E:
Order of the United States District Court
Central District of California Denying Defendant City of Los Angeles’s Motion for
Judgment on the Pleadings,
Filed January 5, 2024 ..................................... 63a
APPENDIX F:
Stipulated Judgment of the United States
District Court Central District of California,
Filed April 3, 2024 .......................................... 70a
vii
TABLE OF AUTHORITIES
Page(s)
CASES
Alford v. Walton County,
159 F.4th 844 (11th Cir. 2025) ..............5, 11, 12, 13
Alton v. Mfrs. & Merchants Mut. Ins. Co.,
624 N.E.2d 545 (Mass. 1993) ............................... 27
AmeriSource Corp. v. United States,
525 F.3d 1149 (Fed. Cir. 2008) ...................... 8-9, 13
Anson v. City of Deltona,
No. 6:23-CV-766-JSS-LHP,
2025 WL 4477502 (M.D. Fla. Dec. 2, 2025) ......... 29
Ark. Game & Fish Comm’n v. United States,
568 U.S. 23 (2012) .................................... 15, 25, 30
Armstrong v. United States,
364 U.S. 40 (1960) ............................................ 6, 28
Baker v. City of McKinney,
84 F.4th 378 (5th Cir. 2023) ....................... 9, 13, 15
Baker v. City of McKinney,
93 F.4th 251 (5th Cir. 2024) ................ 14-16, 20, 30
Baker v. City of McKinney,
145 S. Ct. 11 (2024) ............................ 4-5, 22-23, 26
Bishop v. Mayor & City Council of Macon,
7 Ga. 200 (1849) .............................................. 18, 23
viii
Bowman v. Middleton,
1 Bay 252 (S.C. Ct. Common Pleas 1792) ............ 19
Bradshaw v. Rogers,
20 Johns. 103 (N.Y. 1822) .................................... 19
Brewer v. Alaska,
341 P.3d 1107 (Alaska 2014) ................................ 13
Bristol v. New-Chester,
3 N.H. 524 (1826) .................................................. 19
Cal. Cafe Rest. v. Nationwide Mut. Ins. Co.,
C.A. No. 92-1326, 1994 WL 519449
(C.D. Cal. Sept. 14, 1994) ..................................... 27
Carrasco v. City of Udall,
No. 20-1322-EFM, 2022 WL 522959
(D. Kan. Feb. 22, 2022) .................................... 29-30
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) .............................................. 12
City of New York v. Lord,
17 Wend. 285 (N.Y. Sup. Ct.),
aff’d, 18 Wend. 126 (N.Y. 1837)............................ 17
Commons of Lake Houston, Ltd. v. City of Houston,
711 S.W.3d 666 (Tex. 2025) .................................. 13
Customer Co. v. City of Sacramento,
895 P.2d 900 (Cal. 1995) ...................................... 13
ix
David v. Midway City,
No. 2:20-CV-00066-DBP, 2021 WL 6927739
(D. Utah Dec. 14, 2021) ........................................ 29
Eggleston v. Pierce County,
64 P.3d 618 (Wash. 2003) ..................................... 13
Garrett v. City of Topeka,
916 P.2d 21 (Kan. 1996) ....................................... 13
Grant v. United States,
1 Ct. Cl. 41 (1863) ................................................ 17
Hadley v. City of South Bend,
154 F.4th 549 (7th Cir. 2025) ......................... 4–5, 8
Hale v. Lawrence,
21 N.J.L. 714 (1848) ............................................. 18
Hamen v. Hamlin County,
955 N.W.2d 336 (S.D. 2021) ................................. 13
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ......................................... 19-20
In re Chi., Milwaukee, St. Paul & Pac. R. Co.,
799 F.2d 317 (7th Cir. 1986) ................................ 25
Irwin v. City of Minot,
860 N.W.2d 849 (N.D. 2015) ................................ 10
Jarvis v. Pinckney,
21 S.C.L. (3 Hill) 123 (1836) ................................. 18
x
John Corp. v. City of Houston,
214 F.3d 573 (5th Cir. 2000) ................................ 24
John Horstmann Co. v. United States,
257 U.S. 138 (1921) .............................................. 25
Johnson v. Manitowoc County,
635 F.3d 331 (7th Cir. 2011) ............................ 8, 12
Just v. Marinette County,
201 N.W.2d 761 (Wis. 1972) ................................. 13
Kelley v. Story Cnty. Sheriff,
611 N.W.2d 475 (Iowa 2000) ................................ 13
KI Fla. Props., Inc. v. Walton County,
No. 3:20-CV-5358,
2021 WL 5456668 (N.D. Fla. Oct. 15, 2021) ........ 11
Knick v. Twp of Scott,
588 U.S. 180 (2019) .............................................. 16
Lech v. Jackson,
791 F. App’x 711 (10th Cir. 2019) ................. 7-8, 12
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) .............................................. 29
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) ................................ 22, 24–25
Miller v. Horton,
26 N.E. 100 (Mass. 1891) .......................... 23, 24-25
xi
Mitchell v. Harmony,
54 U.S. (13 How.) 115 (1851)................................ 17
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022) .................................................. 17
Pa. Coal Co. v. Mahon,
260 U.S. 393 (1922) .............................................. 21
Proprietors of Charles River Bridge v. Proprietors of
Warren Bridge,
24 Mass. 344 (1829), aff’d, 36 U.S. 420 (1837) .... 18
Proprietors of Kennebec Purchase v. Laboree,
2 Me. 275 (1823) ................................................... 18
Pumpelly v. Green Bay & Miss. Canal Co.,
80 U.S. (13 Wall.) 166 (1872) .......................... 14-15
Robinson v. Barfield,
6 N.C. 391 (1818) .................................................. 19
Sandford v. Nichols,
13 Mass. 286 (1816) .............................................. 28
Sanguinetti v. United States,
264 U.S. 146 (1924) .............................................. 25
Slaybaugh v. Rutherford County,
114 F.4th 593 (6th Cir. 2024), cert. denied,
145 S. Ct. 1959 (2025) ................................. 9, 11-13
Soucy v. New Hampshire,
506 A.2d 288 (N.H. 1985) ..................................... 13
xii
Steele v. City of Houston,
603 S.W.2d 786 (Tex. 1985) .................................. 13
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of
Env’t Prot.,
560 U.S. 702 (2010) .............................................. 14
Tex. Dep’t of Transp. v. Self,
690 S.W.3d 12 (Tex. 2024) .................................... 25
Tide Water Canal Co. v. Archer,
9 G. & J. 479 (Md. 1839) ...................................... 18
TJM 64, Inc. v. Harris,
475 F. Supp. 3d 828 (W.D. Tenn. 2020) ............... 29
TrinCo Inv. Co. v. United States,
722 F.3d 1375 (Fed. Cir. 2013) ....................... 10, 13
United States v. Caltex,
344 U.S. 149 (1952) .............................................. 23
United States v. Rahimi,
602 U.S. 680 (2024) .............................................. 20
United States v. Russell,
80 U.S. (13 Wall.) 623 (1871) ............................... 17
United States v. Welch,
217 U.S. 333 (1910) .............................................. 14
Wegner v. Milwaukee Mut. Ins. Co.,
479 N.W.2d 38 (Minn. 1991) ................................ 27
xiii
Yawn v. Dorchester County,
1 F.4th 191 (4th Cir. 2021) ............................... 9, 13
YMCA v. United States,
395 U.S. 85 (1969) .......................................... 22, 24
Young v. McKenzie,
3 Ga. 31 (1847) ...................................................... 19
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ................................................. 1
OTHER AUTHORITIES
Andy Sheehan, City council looks to make
homeowners impacted by Garfield shootout
financially whole, CBS Pittsburgh, Feb. 19, 2024,
https://perma.cc/9NCL-T9JB ............................... 27
Brad Devereaux, Kalamazoo offers $150K to tenant,
landlord after tearing down home during police
standoff, mlive.com, Mar. 7, 2022,
https://perma.cc/77PX-7QM9 ............................... 28
Brian Angelo Lee, Emergency Takings,
114 Mich. L. Rev. 391 (2015) ................................ 21
Case Comment, Baker v. City of McKinney,
137 Harv. L. Rev. 2408 (2024).............................. 21
Dandee Cabanay, Baking Up a Taking: Why There Is
No Categorical Exception to the Fifth Amendment
Takings Clause for the Police Power,
75 Baylor L. Rev. 778 (2023) ................................ 21
xiv
Emilio R. Longoria, Lech’s Mess with the Tenth
Circuit: Why Governmental Entities Are Not
Exempt from Paying Just Compensation When They
Destroy Property Pursuant to Their Police Powers,
11 Wake Forest J.L. & Pol’y 297 (2021) .............. 21
Ian Margon, Taxpayers could pay for home damage
after
standoff
with
ex-MDPD
lieutenant,
Local10.com, Oct. 30, 2023,
https://perma.cc/U37D-UBYT .............................. 28
Jordan Plitt et al., 10A Couch on Ins. § 152:22
(3d ed. 2024).......................................................... 26
Kathleen Collins, Taking Back the Takings Clause:
The Case for Compensating Innocent Property
Owners Caught in the Crossfire of Police Activity,
66 Wm. & Mary L. Rev. 1613 (2025).................... 20
Matt Apuzo, War Gear Flows to Police Departments,
New York Times, June 8, 2014,
https://www.nytimes.com/2014/06/09/us/war-gearflows-to-police-departments.html ........................ 28
Megan Friner, Breaking Down Baker: The Takings
Clause, Law Enforcement, and the Need for A New
Framework,
84 Md. L. Rev. 1003 (2025)................................... 20
Restatement (Second) of Torts § 262 (1965) ........... 16
Restatement (Second) of Torts § 821B (1979) ......... 25
xv
Robert H. Thomas, Evaluating Emergency Takings:
Flattening the Economic Curve,
29 Wm. & Mary Bill Rts. J. 1145 (2021).............. 21
Shelley Ross Saxer, Necessity Exceptions to Takings,
44 U. Haw. L. Rev. 60 (2021) ............................... 21
St. George Tucker, 1 Blackstone’s Commentaries:
With Notes of Reference, to the Constitution and
Laws, of the Federal Government of the United
States; and of the Commonwealth of Virginia
(1803) .................................................................... 20
Susan S. Kuo, Disaster Tradeoffs: The Doubtful Case
for Public Necessity,
54 B.C. L. Rev. 127 (2013) .................................... 21
Massachusetts Constitution of 1780 ....................... 19
Northwest Ordinance of 1787 .................................. 19
Tony Smith, In Case of Emergency: Reconciling
Necessity Takings with the Original Meaning of the
Takings Clause,
120 Nw. U. L. Rev. 465 (2025) ............................. 20
Tristan Reagan, Dude, Where’s My House: The
Interaction Between the Takings Clause, the Police
Power, the Militarization of Law Enforcement, and
the Innocent Third-Party Property Owner,
58 Tulsa L. Rev. 99 (2022).................................... 21
Vermont Constitution of 1777 ................................. 19
xvi
Vic Micolucci, Police working with city to fix damage
SWAT team left behind,
News4Jax.com, Aug. 18, 2021,
https://perma.cc/AES9-W4FR .............................. 28
Zachery Hunter, You Break It, You Buy It—Unless
You Have A Badge? An Argument Against A
Categorical Police Powers Exception to Just
Compensation,
82 Ohio St. L.J. 695 (2021) ................................... 21
1
Carlos Pena petitions for a writ of certiorari to review the judgment of the Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals, 1a, is reported
at 158 F.4th 1033.
The district court’s opinion denying Plaintiff’s motion for summary judgment, 44a, is unreported.
The district court’s opinion denying Defendant’s
motion for judgment on the pleadings, 63a, is unreported.
JURISDICTION
The judgment of the Court of Appeals was entered
on November 4, 2025. Petitioner timely moved for an
extension of time to file a petition for rehearing and
rehearing en banc, which was granted on November
12, 2025. Petitioner filed a timely petition for rehearing and rehearing en banc on December 18, 2025.
Those petitions were denied on January 23, 2026. On
the same day, the Court of Appeals filed a corrected
opinion. This petition for certiorari was timely filed on
April 6, 2026. Petitioner invokes this Court’s jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the United States Constitution provides that: “nor shall private property be
taken for public use, without just compensation.” U.S.
Const. amend. V.
2
STATEMENT
On August 3, 2022, petitioner Carlos Pena was
working in his small print shop in North Hollywood,
California, when he heard a commotion outside. He
opened his door to investigate, and saw a man running towards him, pursued by United States Marshals with weapons drawn. 45a–46a. The fugitive
struck Pena on the shoulder, threw him out of the
shop, and barricaded himself inside. The Marshals
surrounded the shop, and a standoff ensued. Eventually a Los Angeles Police Department SWAT team arrived and took over from the Marshals. Approximately thirteen hours after the standoff began, the
SWAT team assaulted the shop, saturating it with
tear gas. When the police entered Pena’s shop, they
found that the fugitive had somehow escaped. 5a.
The assault caused extensive damage. Essentially
all of Pena’s printing equipment and inventory had
been destroyed by the gas. He estimates that the
value of that property was approximately $60,000. 5a.
The police officers who caused the damage were under
the impression that the City would compensate Pena,
C.A. E.R. (Doc. 10.1) at 59:13–20, but they were mistaken. The City categorically refused to pay for the
damage.
Pena did not have $60,000 to replace his equipment, and the damage was not covered by insurance.
Since the assault, Pena has been operating out of his
garage, without air conditioning, with a single commercial printer that a sympathetic competitor sold to
him at a discount. His revenue has dropped significantly. He no longer attracts walk-in customers, and
3
he does not have the same capabilities that he had before. A business that he built up from scratch over
thirty years ago is withering. 48a.
On July 19, 2023, Pena filed suit against the City
of Los Angeles in the United States District Court for
the Central District of California. He asserted that
the government’s intentional destruction of his property, for the public purpose of apprehending a dangerous criminal, was a taking within the meaning of the
Fifth Amendment, entitling him to compensation.
The City moved for judgment on the pleadings, asserting that because the destruction of Pena’s property was pursuant to the City’s “police power,” the
Takings Clause did not apply. The district court denied that motion. 66a. After discovery concluded,
however, the district court also denied Carlos’s motion for summary judgment, largely accepting the arguments that it had previously rejected. 60a. Because
the City had not cross-moved for summary judgment,
presumably because it would have been futile absent
reconsideration of the court’s prior ruling, the parties
stipulated to entry of judgment for the City, and Pena
filed a timely notice of appeal. 43a.
The Ninth Circuit panel declined to endorse the
district court’s broad “police power” reasoning. Instead, the panel held that the tort defense of public
necessity barred Pena’s claim. 15a.
Judge Friedland, concurring in the judgment,
wrote separately to emphasize that the panel majority had improperly placed the burden on the plaintiff
to find a historical analogue to his specific claim,
4
rather than putting the burden on the government to
demonstrate a historical basis for departing from the
plain text of the Takings Clause. 40a. Nevertheless,
she agreed that Pena’s claim failed. She reasoned that
Pena had not actually been deprived of any property
right: Because he had never had the right to exclude
the police from conducting a lawful search or arrest,
he had lost no stick from his bundle of rights. 35a.
Pena filed a motion for rehearing and rehearing en
banc. Those motions were denied. Carlos filed this
timely petition for certiorari on the same day as the
petition for certiorari in a companion case, Hadley v.
City of South Bend, out of the Seventh Circuit. 154
F.4th 549 (2025). Hadley likewise concerns a SWAT
raid that caused significant damage to an innocent
person’s property. Though the Seventh Circuit’s reasoning differs significantly from the Ninth’s, the outcome was the same—the innocent property owner was
left holding the bag.
These petitions raise the same issue as a 2024 petition in a materially identical case, Baker v. City of
McKinney. 145 S. Ct. 11 (2024). In Baker, a fugitive
barricaded himself inside the home of Vicki Baker, an
innocent third party whose only connection to the fugitive was that at one point he had worked as a
handyman at her house. A SWAT team eventually assaulted her house using tear gas, explosives, and a
Bearcat armored vehicle. As is typical, insurance did
not cover the damage, and the City insisted that Ms.
Baker would not see a dime. Although the district
court awarded compensation to Ms. Baker, the Fifth
Circuit reversed, denying compensation on the same
ground as the Ninth Circuit in this case: It held that
5
“public necessity” is an exception to the Takings
Clause.
Justice Sotomayor, joined by Justice Gorsuch, authored an opinion respecting the denial of certiorari,
explaining that this Court’s precedents had only ever
applied “public necessity” to defeat a Takings Clause
claim in cases where the property would have inevitably been destroyed. 145 S. Ct. at 12. “Whether the
inevitable-destruction cases should extend” to situations where the destruction is not inevitable, they observed, remains “an important and complex question
that would benefit from further percolation in the
lower courts.” Id. at 12–13.
The issue has continued to percolate. The Seventh,
Ninth, and Eleventh Circuits have now had an opportunity to address the issue. The Seventh Circuit has
held that the Takings Clause simply does not apply
when the government is acting pursuant to its “police
power” rather than the power of eminent domain.
Hadley, 154 F.4th at 553. The Ninth Circuit, below,
has held that “public necessity” is an exception to the
Takings Clause, regardless of whether the property
would be subject to inevitable destruction. 4a. The
Eleventh Circuit, by contrast, has held that emergencies do not absolve the government of the duty to pay
for what it takes. Alford v. Walton County, 159 F.4th
844 (11th Cir. 2025).
REASONS FOR GRANTING THE PETITION
This Court should grant the petition to settle the
deep confusion among the Courts of Appeals. Lower
courts disagree about whether the Takings Clause
6
applies to: exercises of the police power, actions privileged by “public necessity,” or actions privileged as
lawful searches or arrests. As a result, Americans are
losing their homes and businesses, through no fault of
their own, without compensation and without the
ability to protect themselves via insurance, which almost always excludes damage done by the government. And the doctrinal chaos is seeping into other
contexts. Lower courts have cited these opinions to
deny compensation in a wide variety of cases, dealing
with situations as diverse as COVID-19 closures and
government-caused flooding.
These decisions denying compensation share a
common, flawed premise: that when the government
is acting for a good reason, it would somehow be unfair or unwise to “penalize” it by requiring it to pay for
the property it takes. This fundamentally misunderstands the nature of the Takings Clause, which starts
from the assumption that the government is acting for
a good reason. The point of the Clause is not to deter
or punish wrongdoing, but to ensure that the Government is not “forcing some people alone to bear public
burdens which, in all fairness and justice, should be
borne by the public as a whole.” Armstrong v. United
States, 364 U.S. 40, 49 (1960). Taking dangerous
criminals off the streets is unquestionably an important function of government, but the cost of those
operations should be borne by the public, just as we
pay for police salaries, training, equipment, and the
entire criminal justice system.
The decision below—like others denying compensation—is also at odds with the historical record,
which speaks with unusual clarity on the precise
7
question in this case. At the time of the Founding, “necessity” was understood to be an individual defense
against tort liability, not a governmental immunity
against the Takings Clause. Every early court to confront the issue agreed, and contemporary commentary indicates that the Takings Clause was adopted
specifically to ensure that public necessity would not
be used to justify uncompensated taking of private
property.
I.
The Courts of Appeals are divided on
whether and how the Takings Clause applies to lawful government actions.
This Court’s intervention is necessary because the
lower courts are still divided on how to apply the Takings Clause when the government burdens property
rights without formally appropriating them. Doctrinally, these decisions are all over the map, but those
cases that have rejected compensation do contain a
common thread: that it would somehow be unfair or
unwise to require the government to compensate people who have been forced to sacrifice their property for
the greater good.
A. The Police Power Exemption
The Seventh, Tenth, and Federal Circuits have
squarely held that, when the government is acting
pursuant to its so-called “police powers,” the Takings
Clause simply does not apply.
Lech v. Jackson, 791 F. App’x 711 (10th Cir. 2019),
involved a now-familiar fact pattern in which: (1) a
fugitive barricades himself inside property owned by
an innocent third party, (2) a SWAT team causes
8
significant damage in the course of apprehending the
fugitive, and (3) the government refuses to compensate the innocent owner. The police did so much damage to the Lechs’ home that it was deemed uninhabitable and had to be razed to the ground. Id. at 713. The
Tenth Circuit, however, held that “when the state acts
pursuant to its police power, rather than the power of
eminent domain, its actions do not constitute a taking
for purposes of the Takings Clause.” Id. at 717. Although this case was unreported, it has been cited dozens of times by other courts, almost always to reject a
takings claim.
The same rule governs in the Seventh Circuit. In
Johnson v. Manitowoc County, the court squarely
held that “the Takings Clause does not apply when
property is retained or damaged as the result of the
government’s exercise of its authority pursuant to
some power other than the power of eminent domain.”
635 F.3d 331, 336 (7th Cir. 2011). Applying that circuit precedent, a subsequent Seventh Circuit panel
rejected the takings claim in another case involving a
SWAT raid on an innocent person’s home. Hadley v.
City of South Bend, 154 F.4th 549, 552 (7th Cir. 2025)
(“Because we agree that Johnson controls, we affirm”). That case is the subject of a companion petition
for certiorari, filed the same day as this one.
The Federal Circuit has likewise held that “so long
as the government’s exercise of authority was pursuant to some power other than eminent domain, then
the plaintiff has failed to state a claim for compensation under the Fifth Amendment.” AmeriSource Corp.
v. United States, 525 F.3d 1149, 1154 (Fed. Cir. 2008).
The Federal Circuit made clear that its conception of
9
the police power was “nothing more or less than the
powers of government inherent in every sovereignty
to the extent of its dominions,” limited only by the due
process clause. Id. at 1153–54. Although the Federal
Circuit has never cast doubt on the validity of AmeriSource’s broad holding, it has applied it selectively,
without ever articulating a basis for determining
when the rule applies. See note 1, infra.
Squarely rejecting this rule are the Fourth, Fifth,
and Sixth Circuits. Slaybaugh v. Rutherford County,
114 F.4th 593, 597 (6th Cir. 2024) (“We decline to apply the categorical “police power” exception adopted
by the district court”), cert. denied, 145 S. Ct. 1959
(2025); Baker v. City of McKinney, 84 F.4th 378, 384
(5th Cir. 2023) (“[W]ith respect to our sister circuits,
their opinions do not rely on history, tradition, or historical precedent, and moreover, the rule they adopt
is inconsistent with our court’s precedent.”); Yawn v.
Dorchester County, 1 F.4th 191, 195 (4th Cir. 2021)
(“That Government actions taken pursuant to the police power are not per se exempt from the Takings
Clause is axiomatic in the Supreme Court’s jurisprudence.”).
B. Necessity Exemption
In the decision below, the Ninth Circuit joined the
Fifth in holding that “public necessity” is an exception
to the Takings Clause. 15a (“Law enforcement officers
destroyed Pena’s property while acting reasonably to
capture an armed fugitive fleeing from police. The necessity exception to the Takings Clause therefore applies to Pena’s claim, and no compensable taking occurred.” (cleaned up)); Baker, 84 F.4th at 379 (“[T]he
10
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 Federal Circuit has also endorsed the “public
necessity” exception to the Takings Clause, though its
understanding of the doctrine differs. Unlike the Fifth
and Ninth Circuits, the Federal Circuit emphasizes
that “[t]he necessity defense is just what it says it is:
a defense.” TrinCo Inv. Co. v. United States, 722 F.3d
1375, 1380 (Fed. Cir. 2013). In a case involving a controlled blaze, which the Forest Service lit in an effort
to contain a wildfire, the Federal Circuit remanded
for discovery regarding whether it was truly necessary to sacrifice private property and whether the
government had reasonable alternatives. Ibid. On remand, the court denied cross motions for summary
judgment, and the case eventually settled. 1
The North Dakota Supreme Court has extended
the necessity defense beyond destruction, to encompass the actual appropriation of personal property
without compensation. In Irwin v. City of Minot, the
city took clay and topsoil from a private farm, for use
in constructing emergency dikes prior to a flood. 860
N.W.2d 849, 851 (N.D. 2015). The court remanded to
determine whether the facts would support the
1 Given the breadth of AmeriSource’s “police power exemp-
tion” from the Takings Clause, TrinCo is a puzzling case. It is
unclear why the necessity defense is relevant in a circuit where
any actions taken pursuant to the police power are categorically
non-compensable.
11
defense, but it harbored no doubt as to the doctrine’s
application to seizure as well as destruction.
The Eleventh Circuit has rejected this approach.
Alford v. Walton County, 159 F.4th 844, 860 (11th Cir.
2025). Alford concerned a COVID-19 order that restricted property owners’ access to private beaches.
The district court had held that the order was not a
taking because “there was no way to know * * * how
many people would die or become gravely ill,” so government officials “exercised their best judgment * * *
on how to preserve life and health.” KI Fla. Props.,
Inc. v. Walton County, No. 3:20-CV-5358, 2021 WL
5456668, at *6 (N.D. Fla. Oct. 15, 2021). In other
words, the district court adopted a “public necessity”
exception to the Takings Clause, just like the panel in
the present case. In reversing, the Eleventh Circuit
held that “the normal requirements of the Takings
Clause remain in force, even during emergencies.”
159 F.4th at 860. The court explained that while an
emergency can justify the taking of property, it cannot
absolve the government of its obligation to pay for
what it took. Ibid. 2
C. Law Enforcement Exemption
Finally, the Sixth Circuit has adopted yet a third
exemption from the Takings Clause. In Slaybaugh v.
Rutherford County, 114 F.4th 593 (2024), a fugitive
barricaded himself inside a home, and the police
2 The Sixth Circuit, while not squarely answering the ques-
tion, observed that “historical evidence suggests that, in certain
circumstances, persons could be compensated for the taking of
property out of necessity.” Slaybaugh v. Rutherford County, 114
F.4th 593, 603 (6th Cir. 2024).
12
destroyed it in the course of apprehending him. The
property owners were innocent, and the government
refused to pay for the damage. The Sixth Circuit denied compensation on the ground that the “search and
arrest” privilege immunized the government from
takings liability. The court explained that the searchand-arrest privilege has a long history at common
law, and it has always immunized law enforcement
officers who are conducting lawful arrests. Id. at 598.
True enough. But the court did not identify any historical basis for imputing a personal tort immunity to
the government for purposes of the Takings Clause.
The only source it identified for that crucial link was
dicta from this Court’s recent decision in Cedar Point
Nursery v. Hassid, 594 U.S. 139 (2021). Judge Friedland, below, adopted similar reasoning in her concurrence. 33a.
The discussion below regarding public necessity–
another personal tort defense to trespass–is largely
applicable to the Sixth Circuit’s decision as well, and
the forthcoming amicus brief of the Pacific Legal
Foundation will explain in detail how the Sixth Circuit has misinterpreted Cedar Point.
Below is a chart summarizing the splits in the federal circuits and state high courts:
Police Power Exception to Takings Clause
Recognizes
Rejects
Lech v. Jackson, 791 F.
Alford v. Walton County,
App’x 711 (10th Cir. 2019);
159 F.4th 844 (11th Cir.
2025) (implicit);
Johnson v. Manitowoc
County, 635 F.3d 331 (7th
Slaybaugh v. Rutherford
Cir. 2011);
County, 114 F.4th 593 (6th
Cir. 2024);
13
AmeriSource Corp. v.
United States, 525 F.3d
1149 (Fed. Cir. 2008);
Hamen v. Hamlin County,
955 N.W.2d 336 (S.D. 2021);
Eggleston v. Pierce County,
64 P.3d 618, 623 (Wash.
2003);
Kelley v. Story Cnty. Sheriff,
611 N.W.2d 475, 480 (Iowa
2000);
Customer Co. v. City of Sacramento, 895 P.2d 900, 908
(Cal. 1995)
Baker v. City of McKinney,
84 F.4th 378 (5th Cir.
2023);
Yawn v. Dorchester County,
1 F.4th 191 (4th Cir. 2021);
Brewer v. Alaska, 341 P.3d
1107 (Alaska 2014);
Garrett v. City of Topeka,
916 P.2d 21 (Kan. 1996);
Soucy v. New Hampshire,
506 A.2d 288 (N.H. 1985);
Steele v. City of Houston,
603 S.W.2d 786 (Tex. 1980);
Just v. Marinette County,
201 N.W.2d 761 (Wis. 1972)
Necessity/Emergency Exception to Takings Clause
Recognizes
Rejects
Pena v. City of Los Angeles, Alford v. Walton County,
158 F.4th 1033 (9th Cir.
159 F.4th 844 (11th Cir.
2025);
2025);
Baker v. City of McKinney,
Steele v. City of Houston,
84 F.4th 378 (5th Cir.
603 S.W.2d 786, 792 (Tex.
2023);
1980) (Public necessity applies where property is
TrinCo Inv. Co. v. United
“destined to destruction anStates, 722 F.3d 1375 (Fed.
yway.”);
Cir. 2013) (narrower than
Fifth/Ninth version);
Commons of Lake Houston,
Ltd. v. City of Houston, 711
Brewer v. Alaska, 341 P.3d
S.W.3d 666, 680 n.39 (Tex.
1107 (Alaska 2014)
2025)
Search and Arrest Exception to Takings Clause
Recognizes
Rejects
Slaybaugh v. Rutherford
County, 114 F.4th 593 (6th
Cir. 2024)
14
II.
This Court’s intervention is necessary because the decision below, along with others rejecting similar claims, is wrong.
A. The Takings Clause applies to physical
destruction of property.
The court below “decline[d] to endorse th[e] position” that the Takings Clause applies to property destruction. 25a n.21. But this Court has long held the
opposite:
It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection
and security to the rights of the individual as against the government…it shall
be held that if the government refrains
from the absolute conversion of real
property to the uses of the public it can
* * * subject it to total destruction without making any compensation, because,
in the narrowest sense of that word, it is
not taken for the public use.
Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13
Wall.) 166, 178 (1872). 3
3 Accord United States v. Welch, 217 U.S. 333, 339 (1910) (“a
destruction for public purposes may as well be a taking as would
be an appropriation for the same end.”); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 713 (2010)
(plurality) (“[W]hen the government uses its own property in
such a way that it destroys private property, it has taken that
property.”); Baker v. City of McKinney, 93 F.4th 251, 252 (5th
15
The panel dismissed Pumpelly on the ground that
this Court “was construing the Wisconsin Constitution,” 25a n.21, but Pumpelly explicitly stated that it
“rest[ed] its decision upon the general weight of authority and not upon anything special in the language
of the Wisconsin bill of rights.” 80 U.S. (13 Wall.) at
180. This Court has gone on to cite Pumpelly dozens
of times, treating it as one of the foundational precedents of federal takings law. See, e.g., Ark. Game &
Fish Comm’n v. United States, 568 U.S. 23, 32 (2012).
The Fifth Circuit, while at least acknowledging
that Pumpelly is binding federal law, argued that it
was inapplicable because it “was a flooding case.”
Baker, 84 F.4th at 384. Yet this Court has expressly
rejected arguments that “flooding is different,” holding instead that “[t]here is thus no solid grounding in
precedent for setting flooding apart from all other government intrusions on property.” Ark. Game & Fish,
568 U.S. at 36.
If that were not clear enough, Pumpelly itself
states a broader rule: “where real estate is actually
invaded by superinduced additions of water, earth,
sand, or other material * * * so as to effectually destroy or impair its usefulness, it is a taking.” 80 U.S.
(13 Wall.) at 181. That is precisely what happened in
the case below: A Los Angeles SWAT team “actually
invaded” Carlos’s shop with canisters of noxious gas,
Cir. 2024) (dissental) (“The panel did not quibble with Baker’s
contention that the ‘plain text’ of the Fifth Amendment suggests
she is entitled to compensation. Nor could it have.” (citation
omitted)).
16
which effectively destroyed his property and “impair[ed] its usefulness.” That is a prima facie taking.
B. There is no basis in text, history, or tradition for treating “necessity” as an exception to the Takings Clause.
“Public necessity” is a common-law defense
against the tort of trespass. It protects individuals
against personal liability when they destroy property
“for the purpose of avoiding a public disaster.” Restatement (Second) of Torts § 262 (1965). It has no application, however, when the government itself destroys private property. See Baker v. City of McKinney, 93 F.4th 251, 254 (5th Cir. 2024) (dissental)
(questioning application of private tort defenses to the
Takings Clause).
Start with the text of the Fifth Amendment: It
says, “nor shall private property be taken for public
uses without just compensation.” It does not say “unless it was really necessary to take the property.” See
Knick v. Twp of Scott, 588 U.S. 180, 189 (2019) (“The
Clause provides: ‘[N]or shall private property be
taken for public use, without just compensation.’ It
does not say: ‘Nor shall private property be taken for
public use, without an available procedure that will
result in compensation.’”). That textual silence is significant. “[W]hen the plain text of a constitutional
provision establishes an individual right—here, the
right to compensation for confiscated property—it is
the government’s burden to demonstrate a historically grounded exception.” Baker v. City of McKinney,
93 F.4th 251, 253 (5th Cir. 2024) (dissental) (citing
17
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.
1, 17 (2022)).
Here, the history is unusually clear: Early American cases repeatedly drew a distinction between the
individual tort defense of public necessity and the
government’s just compensation duty, universally
holding that necessity was not an exception to the
Takings Clause:
[T]he individual concerned in the taking
or destroying of the property is not personally liable. If the public necessity in
fact exists, the act is lawful. Thus,
houses may be pulled down, or bulwarks
raised for the preservation and defence
of the country, without subjecting the
persons concerned to an action, the same
as pulling down houses in time of fire;
and yet these are common cases where
the sufferers would be entitled to compensation from the national government
within the constitutional principle
(Const. U. S. Art. 5, of the Amendments).
City of New York v. Lord, 17 Wend. 285, 291 (N.Y.
Sup. Ct.), aff’d, 18 Wend. 126 (N.Y. 1837). 4
4 See also United States v. Russell, 80 U.S. (13 Wall.) 623,
629 (1871) (“[P]rivate rights, under such extreme and imperious
circumstances, must give way for the time to the public good, but
the government must make full restitution for the sacrifice.”);
Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1851) (“Unquestionably * * * the government is bound to make full compensation to the owner; but the officer is not a trespasser.”); Grant
v. United States, 1 Ct. Cl. 41, 47 (1863) (“taking of private
18
Indeed, a common view in the early republic was
that public necessity, far from being an exception to
the Takings Clause, was in fact the only valid justification for taking or destroying property without the
owner’s consent. See, e.g., Tide Water Canal Co. v.
Archer, 9 G. & J. 479, 484 (Md. 1839) (“[W]henever
public necessity demands that the property of any individual should be appropriated to public uses, he
shall receive a just and reasonable compensation
therefor[.]”). 5 Several founding era declarations of
property for use or destruction, when the public exigency demands it, * * * is an exercise of the right of eminent domain”);
Jarvis v. Pinckney, 21 S.C.L. (3 Hill) 123, 140 (1836) (“[A]s the
danger to human life was great, it might be destroyed upon the
principle that private property may be taken for the public use[,
but] * * * it can only be done upon just compensation.”); Bishop
v. Mayor & City Council of Macon, 7 Ga. 200, 202 (1849) (“[I]n a
case of actual necessity, to prevent the spreading of a fire, the
ravages of a pestilence, the advance of a hostile army, or any
other great public calamity, the private property of an individual
may be lawfully taken, and used or destroyed for the relief, protection or safety of the many. And in all such cases, while the
agents of the public who officiate are protected from individual
liability, the sufferers are nevertheless entitled, under the Constitution, to just compensation from the public for the loss.”);
Hale v. Lawrence, 21 N.J.L. 714, 728–29 (1848) (“Whether or not,
a law authorizing the destruction of private property for public
benefit or safety, is to be esteemed a taking * * * such a law is
nevertheless an exercise of the right of eminent domain, and if it
makes no provision for compensation to the owner, the law is []
unconstitutional[.]”).
5 Accord Proprietors of Charles River Bridge v. Proprietors of
Warren Bridge, 24 Mass. 344, 408 (1829) (holding that “public
exigency did not require that their franchise should be taken
away without compensation”), aff’d, 36 U.S. 420 (1837); Proprietors of Kennebec Purchase v. Laboree, 2 Me. 275, 290 (1823) (noting that Under the Maine Constitution, even in cases of “public
exigency * * * the individual is * * * to receive ‘just
19
rights echoed this understanding. The Northwest Ordinance of 1787 provided that “should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his
particular services, full compensation shall be made
for the same.” The Massachusetts Constitution of
1780 spoke of compensated takings “whenever the
public exigencies require” it. And the Vermont Constitution of 1777 speaks of compensated takings
“when necessity requires it.” 6
It is not a coincidence that we have so much early
material addressing the interplay between necessity
and just compensation. As this Court has recognized,
the earliest contemporary commentary on the Takings Clause explained that it was “‘probably’ adopted
in response to ‘the arbitrary and oppressive mode of
obtaining supplies for the army, and other public
uses, by impressment, as was too frequently practiced
during the revolutionary war, without any
compensation’”); Robinson v. Barfield, 6 N.C. 391, 420 (1818)
(“only in case of necessity, and rendering full compensation”).
6 Although these declarations of rights used slightly different
language than the Fifth Amendment, it was understood at the
time of the Founding that these were simply varying articulations of a common principle that dated back to Magna Carta. See
Young v. McKenzie, 3 Ga. 31, 41–42 (1847); Bristol v. New-Chester, 3 N.H. 524, 535 (1826) (“[C]ompensation shall be made. And
natural justice speaks on this point, where our constitution is
silent.”); Bradshaw v. Rogers, 20 Johns. 103, 106 (N.Y. 1822)
(Fifth Amendment’s prohibition of uncompensated takings is
simply “declaratory of a great and fundamental principle of government” arising from “natural rights and justice”); Bowman v.
Middleton, 1 Bay 252, 252 (S.C. Ct. Common Pleas 1792) (declaring that it would be “against common right, as well as against
Magna Charta,” to take property without compensation).
20
compensation whatever.’” Horne v. Dep’t of Agric., 576
U.S. 350, 359 (2015) (quoting St. George Tucker, 1
Blackstone’s Commentaries: With Notes of Reference,
to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth
of Virginia 305–06 (1803)). Of course, public necessity
would certainly justify the military’s seizure of supplies during a domestic war for independence, yet the
Takings Clause was drafted and ratified specifically
to ensure that compensation would be available in
such situations. Baker, 93 F.4th at 257 (dissental)
(“There is no conceivable reading of the Fifth Amendment under which the government could confiscate
private property to supply the military without compensating the owner.”). 7
Scholarly authority also overwhelmingly supports
the conclusion that necessity is not a historically
grounded exception to the Takings Clause. 8
7 The opinion below argues that history cuts the other way
because, in the pre-ratification period, colonial governments
sometimes seized property, including real property, without paying for it. 16a–24a. But there is no question that the Takings
Clause applies to the seizure of real property to build a road (one
of the examples the panel majority referenced), so this history
tells us nothing; the panel failed to “exercise care to rely only on
the history that the Constitution actually incorporated and not
on the history that the Constitution left behind.” United States
v. Rahimi, 602 U.S. 680, 723 (2024) (Kavanaugh, J., concurring).
8 See, e.g., Tony Smith, In Case of Emergency: Reconciling
Necessity Takings with the Original Meaning of the Takings
Clause, 120 Nw. U. L. Rev. 465, 492 (2025) (“[T]here is no evidence to support a necessity exception to the Fifth Amendment’s
compensation requirement.”); Megan Friner, Breaking Down
Baker: The Takings Clause, Law Enforcement, and the Need for
A New Framework, 84 Md. L. Rev. 1003 (2025); Kathleen Collins,
21
Although the historical record forecloses any necessity exception to the Takings Clause, it is true that
this Court has, in dicta, assumed the opposite. Most
famously, in Pennsylvania Coal Co. v. Mahon, Justice
Holmes mused that “[i]t may be doubted how far exceptional cases, like the blowing up of a house to stop
a conflagration, go—and if they go beyond the general
rule” that the government owes compensation when
it destroys private property, “whether they do not
stand as much upon tradition as upon principle.” 260
U.S. 393, 415–16 (1922). Far from establishing a necessity defense to the Takings Clause, however, Justice Holmes was both (1) critical of the notion of a
Taking Back the Takings Clause: The Case for Compensating Innocent Property Owners Caught in the Crossfire of Police Activity,
66 Wm. & Mary L. Rev. 1613 (2025); Case Comment, Baker v.
City of McKinney, 137 Harv. L. Rev. 2408 (2024); Dandee Cabanay, Baking Up a Taking: Why There Is No Categorical Exception
to the Fifth Amendment Takings Clause for the Police Power, 75
Baylor L. Rev. 778, 793 (2023); Shelley Ross Saxer, Necessity Exceptions to Takings, 44 U. Haw. L. Rev. 60, 143 (2021); Tristan
Reagan, Dude, Where’s My House: The Interaction Between the
Takings Clause, the Police Power, the Militarization of Law Enforcement, and the Innocent Third-Party Property Owner, 58
Tulsa L. Rev. 99, 130 (2022); Zachery Hunter, You Break It, You
Buy It—Unless You Have A Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation, 82 Ohio
St. L.J. 695, 706 (2021); Emilio R. Longoria, Lech’s Mess with the
Tenth Circuit: Why Governmental Entities Are Not Exempt from
Paying Just Compensation When They Destroy Property Pursuant to Their Police Powers, 11 Wake Forest J.L. & Pol’y 297
(2021); Robert H. Thomas, Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill Rts. J. 1145,
1196 (2021); Brian Angelo Lee, Emergency Takings, 114 Mich. L.
Rev. 391, 449–50 (2015); Susan S. Kuo, Disaster Tradeoffs: The
Doubtful Case for Public Necessity, 54 B.C. L. Rev. 127, 128
(2013).
22
necessity defense and (2) ambivalent about whether
such a defense even existed.
Seventy years later, necessity made another appearance in this Court’s dicta, when Justice Scalia
dropped a footnote in Lucas v. South Carolina Coastal
Council, referencing “litigation absolving the State (or
private parties) of liability for the destruction of ‘real
and personal property, in cases of actual necessity, to
prevent the spreading of a fire’ or to forestall other
grave threats to the lives and property of others.” 505
U.S. 1003, 1029 n.16 (1992).
Lower courts have afforded these asides weight
that they cannot bear. In neither Lucas nor Pennsylvania Coal did the Court actually confront a question
of public necessity, and neither court had occasion to
consider the voluminous historical record undermining their assumptions. As Justice Sotomayor and Gorsuch recently observed, whether public necessity is an
exception to the Takings Clause “remains an open
question” under this Court’s precedents. Baker, 145 S.
Ct. at 13. 9
9 Notably in YMCA v. United States, 395 U.S. 85 (1969), dis-
cussed in more detail in II.C, the government argued that public
necessity absolved it of any takings liability. No justices endorsed that argument. The justices who voted to deny compensation did so on a much narrower ground, and the dissenters
simply disagreed about what the record showed.
23
C. This Court’s existing limiting principles do not excuse non-compensation
here.
Although public necessity is not an exception to
the Takings Clause, that does not mean that the government is liable every time it destroys private property. This Court has recognized several circumstances
where compensation may not be due. None of these,
however, applies to the present case.
First, if the government destroys property that
would have been destroyed or lost anyway, then no
compensation is due. Baker, 145 S. Ct. at 13
(“Whether the inevitable-destruction cases should extend to this distinct context remains an open question.”). 10 This was the situation in United States v.
Caltex, 344 U.S. 149 (1952). The retreating U.S. Army
destroyed a petroleum refinery in Manila, so as to prevent it from falling into the hands of advancing Japanese forces. The Court explained that because there
would have been no compensation due for destroying
it after the Japanese had seized it, it should not matter that the destruction was effected just prior to seizure. 344 U.S. at 155. In the present case, Respondent
10 See Miller v. Horton, 26 N.E. 100, 101 (Mass. 1891) (noting
that if a house is pulled down to create a firebreak, no compensation will be due if “the house is practically worthless because
it would have burned if it had not been destroyed.”); Bishop &
Parsons v. City of Macon, 7 Ga. 200, 202–03 (1849) (“Where the
same extent of loss or injury would have been sustained by the
individual, as the necessary consequence of the fire or other public calamity, if his property had not been thus taken or destroyed
for the protection of others, he would hardly seem entitled to
compensation. For in such case, although others have been benefited, he has in fact sustained no damage.”).
24
has not argued—nor could it—that the fugitive would
have destroyed Pena’s shop regardless of the SWAT
team’s actions.
Second, this Court has recognized that no compensation is due when the property owner is the “particular intended beneficiary” of the government action
that caused the property damage. In YMCA v. United
States, during a riot in the Panama Canal Zone,
American troops occupied several buildings and attempted to protect them from rioters. 395 U.S. 85, 90
(1969). Several buildings were, nonetheless, damaged
or destroyed. The Court explained that the Takings
Clause did not apply because, even if the troops were,
in some sense, responsible for the damage, they were
acting primarily to protect private property. Id. at 92.
The same would be true, for instance, if firefighters
had to break down a door to get inside a burning
building. The same cannot be said for the SWAT team
in the present case. The police were already in pursuit
of the fugitive when he entered Pena’s shop, and there
is no way in which Pena could be viewed as the particular intended beneficiary of an assault which destroyed his business.
Third, it is not a taking when the government is
simply abating a nuisance. Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1031 (1992). For instance, the
government may destroy diseased animals without
compensating their owners, Miller v. Horton, 26 N.E.
100, 102 (Mass. 1891), or raze an unsafe building that
the owner has failed to maintain. John Corp. v. City
of Houston, 214 F.3d 573, 580 (5th Cir. 2000). But “the
government cannot avoid paying compensation based
simply on its own declaration that the property is a
25
nuisance.” Tex. Dep’t of Transp. v. Self, 690 S.W.3d
12, 30 (Tex. 2024). It must prove that the property at
issue was, in fact, a nuisance under background principles of property law. Lucas, 505 U.S. at 1031; Miller,
26 N.E. at 102 (“Certainly the legislature could not
declare all cattle to be nuisances[.]”). Crucially, the
tort of nuisance requires an element of fault on the
part of the property owner. Restatement (Second) of
Torts § 821B comment e (1979) (“[T]he defendant is
held liable for a public nuisance if his interference
with the public right was intentional or was unintentional and otherwise actionable under the principles
controlling liability for negligent or reckless conduct
or for abnormally dangerous activities.”) There can be
no contention that Pena was at fault for a fugitive assaulting him and taking refuge in his shop. 11
Finally, the damage must be intentional or at least
foreseeable. See Ark. Game & Fish Comm’n v. United
States, 568 U.S. 23, 39 (2012); John Horstmann Co. v.
United States, 257 U.S. 138 (1921) (“[I]t would border
on the extreme to say that the government intended
a taking by that which no human knowledge could
even predict.”). This Court has denied compensation
where neither “government [n]or any of its officers
* * * had any intention to” damage private property
or “any reason to expect that such result would follow.” Sanguinetti v. United States, 264 U.S. 146, 147–
48 (1924); In re Chi., Milwaukee, St. Paul & Pac. R.
Co., 799 F.2d 317, 326 (7th Cir. 1986) (“Accidental,
The logic of these cases would extend to a situation in
which the property owner is not truly innocent; an individual
who barricaded himself inside his own house would obviously not
have a claim against the police for the damage caused in removing him.
11
26
unintended injuries inflicted by governmental actors
are treated as torts, not takings.”). In the present
case, the SWAT team knew that, by saturating Carlos’s shop with toxic gas, they would cause damage. Of
course, the destruction was not the ultimate objective—just as destroying timber was not the objective
of the Army Corps of Engineers in Arkansas Game &
Fish—but they intended an act which they knew
would cause damage, and that is sufficient.
These are some of the limitations on takings liability that this Court has recognized. It is possible that
other exceptions may exist, but the burden is on the
government to demonstrate that any novel exception
to the Takings Clause is grounded in text, history, and
tradition. 39a (Friedland, J., concurring in the judgment) (The burden is “not on the plaintiff to show historical examples of compensation in similar circumstances.”).
III.
The Questions Presented are important.
As Justices Sotomayor and Gorsuch already recognized, these cases raise “an important question,” 145
S. Ct. at 11, both in the specific context of SWAT
raids, and for takings doctrine more generally.
The damage caused by these raids is catastrophic
to people like Carlos Pena. Most insurance policies exclude damage caused by the government. See Jordan
Plitt et al., 10A Couch on Ins. § 152:22 (3d ed. 2024)
(noting that loss associated with authorized acts of
government are “typically excluded from most property insurance policies”). These exclusions have been
interpreted to cover damage caused by lawful actions
27
of the police, unless the damage was caused by an officer who “acts so egregiously that his behavior is not
properly characterized as” government action. Cal.
Cafe Rest. v. Nationwide Mut. Ins. Co., C.A. No. 921326, 1994 WL 519449 at *2 (C.D. Cal. Sept. 14,
1994); accord Alton v. Mfrs. & Merchants Mut. Ins.
Co., 624 N.E.2d 545, 546–47 (Mass. 1993). This means
there is no good way for most people to protect themselves from the financial ruin that often follows a
SWAT raid.
There is no reason to think that providing compensation to people like Carlos would open the floodgates
of litigation or subject municipalities to ruinous liability. Takings liability is limited to actual property destruction, which is relatively easy to ascertain. Punitive damages, personal injuries, pain and suffering,
and consequential damages are all outside the scope
of the Takings Clause. And because takings liability
does not depend on the government having acted
wrongly, factual disputes will be rare. On the occasions when it is truly necessary for police to destroy
private property to protect the public, local government will simply pay those claims, without the need
for litigation. Indeed, many cities already voluntarily
pay such claims, and in Minnesota they are constitutionally required to do so. 12 There is no indication that
12 Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 42
(Minn. 1991) (“At its most basic level, the issue is whether it is
fair to allocate the entire risk of loss to an innocent homeowner
for the good of the public. We do not believe the imposition of
such a burden on the innocent citizens of this state would square
with the underlying principles of our system of justice. Therefore, the City must reimburse Wegner for the losses sustained.”);
Andy Sheehan, City council looks to make homeowners impacted
28
compensation has proven unworkable in those jurisdictions.
While there is no national database of SWAT
raids, it is clear that this kind of damage is becoming
more common. At the time of the founding, professional law enforcement did not exist, and any damage
they caused would have been de minimis. See Sandford v. Nichols, 13 Mass. 286, 289–90 (1816) (suggesting that the damage caused by an illegal search will
be “very small” so “the parties will, therefore, judge,
whether it is worth their while to proceed further.”).
The first SWAT team did not exist until 1969, and it
is not until this century that SWAT teams (often
equipped with surplus military hardware from the
wars in Iraq and Afghanistan) became truly ubiquitous. 13 Whatever one thinks of this trend, it ensures
that more innocent property owners like Carlos Pena,
Amy Hadley, and Vicki Baker will be left to “bear public burdens which, in all fairness and justice, should
be borne by the public as a whole.” Armstrong v.
United States, 364 U.S. 40, 49 (1960).
by Garfield shootout financially whole, CBS Pittsburgh, Feb. 19,
2024, https://perma.cc/9NCL-T9JB; Ian Margon, Taxpayers
could pay for home damage after standoff with ex-MDPD lieutenant, Local10.com, Oct. 30, 2023, https://perma.cc/U37D-UBYT;
Brad Devereaux, Kalamazoo offers $150K to tenant, landlord after tearing down home during police standoff, mlive.com, Mar. 7,
2022, https://perma.cc/77PX-7QM9; Vic Micolucci, Police working with city to fix damage SWAT team left behind,
News4Jax.com, Aug. 18, 2021, https://perma.cc/AES9-W4FR.
13 Matt Apuzo, War Gear Flows to Police Departments, New
York
Times,
June
8,
2014,
https://www.nytimes.com/2014/06/09/us/war-gear-flows-to-police-departments.html.
29
At bottom, decisions denying compensation to people like Pena all rest on a common error—they conflate the legitimacy of the destruction with the legitimacy of not compensating innocent owners. But “the
Takings Clause presupposes that the government has
acted in pursuit of a valid public purpose.” Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005). Indeed,
if the government is not taking property for a valid
public purpose, its actions are simply illegal. The
Ninth Circuit’s approach creates a strange situation,
where the government owes nothing when it takes
property for really compelling reasons, but it must
pay when it takes property for merely legitimate reasons. It “make[s] little sense to say that the second
owner has suffered a taking while the first has not.”
Lingle, 544 U.S. at 543.
The reasoning of decisions like the one below have
far-reaching consequences. The necessity defense has
already been imported into the flooding context–one
place where it should be clear that the government is
not categorically exempt from takings liability. See
Anson v. City of Deltona, No. 6:23-CV-766-JSS-LHP,
2025 WL 4477502, at *1 (M.D. Fla. Dec. 2, 2025). And
the Tenth Circuit’s decision in Lech, exempting the
government from liability whenever it acts pursuant
to its “police power,” has been cited dozens of times.
Courts have used Lech to dismiss takings claims related to such diverse government actions as COVID19 closure orders, TJM 64, Inc. v. Harris, 475 F. Supp.
3d 828, 839 (W.D. Tenn. 2020), plowing snow onto private property, David v. Midway City, No. 2:20-CV00066-DBP, 2021 WL 6927739, at *8 (D. Utah Dec.
14, 2021), and the destruction of trees. Carrasco v.
City of Udall, No. 20-1322-EFM, 2022 WL 522959, at
30
*3 (D. Kan. Feb. 22, 2022). While some of these cases
may have turned out the same way under a proper
analysis of this Court’s precedents, lower courts have
been quick to adopt these “blanket exclusionary
rules,” Ark. Game & Fish, 568 U.S. at 37, which essentially collapse the Takings Clause into the Due
Process rational basis test. These decisions “risk[]
turning the right to private property into ‘a secondclass right.’” Baker, 93 F.4th at 253 (dissental).
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MARIE MILLER
INSTITUTE FOR JUSTICE
3200 N. Central Ave.,
Ste. 2160
Phoenix, AZ 85012
(480) 557-8300
mmiller@ij.org
JEFFREY REDFERN
Counsel of Record
SURANJAN SEN
ANYA BIDWELL
PATRICK JAICOMO
INSTITUTE FOR JUSTICE
901 N. Glebe Rd.,
Ste. 900
Arlington, VA 22203
703-682-9320
jredfern@ij.org
ssen@ij.org
abidwell@ij.org
pjaicomo@ij.org
Counsel for Petitioner
April 6, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.