Amicus Curiae Brief — Carlos Pena, Petitioner v. City of Los Angeles, California

No. 25-1163

In the

Supreme Court of the United States

CARLOS PENA,

Petitioner,

v.

CITY OF LOS ANGELES, CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE SMALL PROPERTY

OWNERS OF SAN FRANCISCO INSTITUTE

AND OWNERS COUNSEL OF AMERICA

SUPPORTING PETITIONER

Michael M. Berger

Counsel of Record

Manatt, Phelps & Phillips, LLP

2049 Century Park East,

Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

Small Property Owners of

San Francisco Institute and

Owners Counsel of America

121082

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

There Is No “Good Faith” Exception To

The Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . 5

II. Even Legitimate Government Actions Can

Require Compensation When They Impress

Private Property Into Public Service . . . . . . . . . 7

III. When The Government’s Interests Are

Financial, Its Actions Must Be Viewed

With Skepticism . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

447 U.S. 255 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Alford v. Walton County,

159 F.4th 844 (11th Cir. 2025) . . . . . . . . . . . . . . . . . . 12

American Legion v. American Humanist Assn.,

139 S.Ct. 2067 (2019) . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Arkansas Game and Fish Comm’n v. United States,

568 U.S. 23 (2012) . . . . . . . . . . . . . . . . . . . . . 2, 6, 13, 15

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Dolan v. City of Tigard,

512 U.S. 374 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) . . . . . . . . . . . . . . . . . . . 14

First English Evangelical Lutheran Church v.

Los Angeles County,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . 3, 8, 10, 12

iii

Cited Authorities

Page

Florida Rock Indus., Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . 8

Florida Rock Indus., Inc. v. United States,

791 F.2d 893 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . 11

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Horne v. U.S. Dept. of Agriculture,

576 U.S. 350 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

Hughes v. State of Washington,

389 U.S. 290 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kaiser Aetna v. United States,

444 U.S. 164 (1979) . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 10

Kelo v. City of New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Knick v. Township of Scott,

588 U.S. 180 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Koontz v. St. Johns River Water Mgmt. Dist.,

133 S. Ct. 2586 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 11

iv

Cited Authorities

Page

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . . . 3, 5, 13

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893) . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Murr v. Wisconsin,

582 U.S.

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . . . . 3, 10, 12

Olson v. United States,

292 U.S. 246 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pakdel v. San Francisco,

594 U.S. 474 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Preseault v. ICC,

494 U.S. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

Cited Authorities

Page

Sackett v. EPA,

598 U.S. 651 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

San Remo Hotel, L.P. v. City and County of

San Francisco,

545 U.S. 323 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sheetz v. County of El Dorado,

601 U.S. 267 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

Simmons v. South Carolina,

512 U.S. 154 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Stop the Beach Renourishment, Inc. v.

Fla. Dept. of Envt’l Protection,

130 S. Ct. 2592 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

Tyler v. Hennepin County,

598 U.S. 631 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States Trust Co. v. New Jersey,

431 U.S. 1 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Good Real Property,

510 U.S. 43 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

vi

Cited Authorities

Page

United States v. Jones,

565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Winstar Corp.,

518 U.S. 839 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wilkins v. United States,

598 U.S. 152 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Winter v. Natural Resources Def. Council,

555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Yee v. City of Escondido,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Authorities

Fifth Amendment . . . . . . . . . . . . . . . . 5, 8, 9, 10, 13, 15, 16

Berger, Michael M. & Gideon Kanner, The Nasty,

Brutish And Short Life Of Agins v. City Of

Tiburon, 50 The Urban Lawyer 9 (2019) . . . . . . . . . . 3

Berger, Michael M., Theft, Extortion, and the

Constitution: Land Use Practice Needs an

Ethical Infusion, 38 Touro L. Rev. 755 (2023) . . . . . 3

vii

Cited Authorities

Page

Berger, Michael M., W hither Regulator y

Takings, 51 The Urban Lawyer 171 (2021) . . . . . . . . 3

Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Blake, William G., The Law of Eminent Domain—

A Fifty State Survey (Am. Bar Ass’n 2012)

(editor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fields, Leslie A., Colorado Eminent Domain

Practice (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hamilton, John & David M. Rapp, Law and

Procedure of Eminent Domain in the 50 States

(Am. Bar Ass’n 2010) (Kansas chapter) . . . . . . . . . . . 3

Hamilton, John, Kansas Real Estate Practice

And Procedure Handbook (2009) (chapter on

Eminent Domain Practice and Procedure) . . . . . . . 3

K a n ner, Gideon , Ju st Ho w Ju st i s Ju st

Compensation? 48 Notre Dame L. Rev. 786

(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kanner, Gideon, Making Laws and Sausages:

A Quarter-Century Retrospective of Penn

Central Transportation Co. v. City of New

York, 13 Wm. & Mary Bill of Rts. J. 679 (2005) . . . . 3

viii

Cited Authorities

Page

Merriam, Dwight H., Eminent Domain Use

and Abuse: Kelo in Context (Am. Bar Ass’n

2006) (coeditor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rikon, Michael, Moving the Cat into the Hat: The

Pursuit of Fairness in Condemnation, or,

Whatever Happened to Creating a “Partnership

of Planning?”, 4 Alb. Gov’t L. Rev. 154 (2011) . . . . . 3

Smith, Randall A., Eminent Domain After

Kelo and Katrina, 53 La. Bar J. 363 (2006) . . . . . . . 3

Takings Clause . . . . . . . . . . . . . . . . . . . . 4, 8, 11, 12, 13, 15

1

INTERESTS OF AMICI CURIAE

The Small Property Owners of San Francisco

Institute (“SPOSFI”) is a California nonprofit corporation

(Internal Revenue Code § 501(c)(3)) and organization of

small property owners that advocates for the rights of

property owners in San Francisco. SPOSFI’s members

range from young families to the elderly on fixed incomes,

and its membership cuts across all racial, ethnic, and

socio-economic strata.1

SPOSFI is also involved in education, outreach and

research. Through education, it helps owners better

understand their rights and learn how to deal with local

government; through outreach to community groups and

to the public, it demonstrates how restrictive regulations

harm both tenants and landlords, and through research

projects, it aims to separate hyperbole from fact on

the effect of rent control on housing stock. Through

legal advocacy, SPOSFI seeks to protect the rights of

small property owners against unfair and burdensome

regulations.

SPOSFI has appeared as amicus curiae in this Court

in support of petitions seeking to protect the rights of

property owners. 2

1. No counsel for any party has authored this brief in whole or

in part and no person other than the amici has made any monetary

contribution to this brief ’s preparation or submission. The parties

were timely notified of intent to file.

2. Simultaneously with the filing of this brief, these amici have

filed a brief in Hadley v. City of South Bend, no. 25-1158. The two

cases raise related issues, and the two briefs apply to both cases.

2

Owners’ Counsel of America (OCA) is an invitationonly national network of the most experienced eminent

domain and property rights attorneys. They have joined

together to advance, preserve and defend the rights of

private property owners, and thereby further the cause

of liberty, because the right to own and use property is

“the guardian of every other right,” and the basis of a free

society. See James W. Ely, The Guardian of Every Other

Right: A Constitutional History of Property Rights (2d

ed. 1998). As the lawyers on the front lines of property

law and property rights, OCA brings unique perspective

to this case. OCA is a non-profit 501(c)(6) organization

sustained solely by its members. Only one member

lawyer is admitted from each state. OCA seeks to use

its members’ combined knowledge and experience as a

resource in the defense of private property ownership, and

OCA member attorneys have been involved in landmark

property law cases in nearly every jurisdiction nationwide.

Additionally, OCA members and their firms have been

counsel for a party or amicus in many of the property

cases this Court has considered in the past forty years,

including most recently Sheetz v. County of El Dorado,

601 U.S. 267 (2024); Tyler v. Hennepin County, 598 U.S.

631 (2023); Sackett v. EPA, 598 U.S. 651 (2023); Wilkins

v. United States, 598 U.S. 152 (2023); Pakdel v. San

Francisco, 594 U.S. 474 (2021); and Cedar Point Nursery

v. Hassid, 594 U.S. 139 (2021). 3 OCA members have also

3. For earlier cases handled by OCA members, see Knick v.

Township of Scott, 588 U.S. 180 (2019); Koontz v. St. Johns River

Water Mgmt. Dist., 133 S. Ct. 2586 (2013); Horne v. U.S. Dept. of

Agriculture, 576 U.S. 350 (2015), and Arkansas Game and Fish

Comm’n v. United States, 568 U.S. 23 (2012); Stop the Beach

Renourishment, Inc. v. Fla. Dept. of Envt’l Protection, 130 S. Ct.

2592 (2010); Winter v. Natural Resources Def. Council, 555 U.S.

3

authored and edited treatises, books, and law review

articles on property law and property rights.4

7 (2008); Kelo v. City of New London, 545 U.S. 469 (2005); San

Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S.

323 (2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005);

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002); Palazzolo v. Rhode Island, 533 U.S. 606

(2001); City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992);

Yee v. City of Escondido, 503 U.S. 519 (1992); Preseault v. ICC,

494 U.S. 1 (1990); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987); First English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987); Agins v. City of Tiburon, 447 U.S.

255 (1980); Kaiser Aetna v. United States, 444 U.S. 164 (1979).

4. See, e.g., Michael M. Berger, Theft, Extortion, and the

Constitution: Land Use Practice Needs an Ethical Infusion, 38

Touro L. Rev. 755 (2023); Michael M. Berger, Whither Regulatory

Takings, 51 The Urban Lawyer 171 (2021); Michael M. Berger

& Gideon Kanner, The Nasty, Brutish And Short Life Of Agins

v. City Of Tiburon, 50 The Urban Lawyer 9 (2019); William G.

Blake, The Law of Eminent Domain—A Fifty State Survey (Am.

Bar Ass’n 2012) (editor); Leslie A. Fields, Colorado Eminent

Domain Practice (2008); John Hamilton, Kansas Real Estate

Practice And Procedure Handbook (2009) (chapter on Eminent

Domain Practice and Procedure); John Hamilton & David M.

Rapp, Law and Procedure of Eminent Domain in the 50 States

(Am. Bar Ass’n 2010) (Kansas chapter); Gideon Kanner, Making

Laws and Sausages: A Quarter-Century Retrospective of Penn

Central Transportation Co. v. City of New York, 13 Wm. & Mary

Bill of Rts. J. 679 (2005); Dwight H. Merriam, Eminent Domain

Use and Abuse: Kelo in Context (Am. Bar Ass’n 2006) (coeditor);

Michael Rikon, Moving the Cat into the Hat: The Pursuit of

Fairness in Condemnation, or, Whatever Happened to Creating

a “Partnership of Planning?”, 4 Alb. Gov’t L. Rev. 154 (2011);

Randall A. Smith, Eminent Domain After Kelo and Katrina,

53 La. Bar J. 363 (2006); (chapters on Prelitigation Process and

Flooding and Erosion).

4

SUMMARY OF ARGUMENT

The Ninth Circuit’s opinion fundamentally errs by

focusing on the good faith of the police officers and the

necessity for them to act to protect the public from the

armed fugitive who had forced Pena out of, and then

barricaded himself in, Pena’s shop. In so doing, the court

sought to raise some distinction between the police power

and the eminent domain power, with the former apparently

grounded in good faith and necessity. That good faith

necessity grounding of the police power was then said to

create an “exception” to the just compensation guarantee

underlying the eminent domain power.

However, that creates a distinction that does not

exist in our constitutional law. The central fact (which

the opinion failed to recognize) is that the police power

and eminent domain power cannot be so simplistically

segregated. They are, in fact, merely two sides of the

same coin of governmental power. The core of both the

police power and the eminent domain power is identical:

In either case, the government must act in furtherance

of the public good and for a public purpose. This Court

put it succinctly:

“The [eminent domain] ‘public use’ requirement

is thus coterminous w ith the scope of a

sovereign’s police powers.” Hawaii Housing

Auth. v. Midkiff, 467 U.S. 229, 240 (1984)

(emphasis added).

Newer authority echoes that conclusion: “the Takings

Clause presupposes that the government has acted in

pursuit of a valid public purpose.” Lingle v. Chevron,

5

U.S.A., Inc., 544 U.S. 528, 543 (2005) (emphasis added).

So saying, Lingle overturned that part of Agins v. City of

Tiburon, 447 U.S. 255 (1980), that had immunized from

takings claims regulations that “substantially advance”

legitimate state interests. Jettisoning that erroneous idea

(which is close to the conclusion of the Ninth Circuit here),

this Court concluded that all takings must “substantially

advance” a governmental purpose if they are to qualify as

“public uses” in the first place. 544 U.S. at 542-43.

Thus, to relieve the City of constitutional liability

because of the good faith actions of its officers relies on

a nonexistent dichotomy about good faith and necessity.

Both are as central to the eminent domain power as they

are to the police power, so relying on them to set the two

powers apart makes no sense.

ARGUMENT

I.

There Is No “Good Faith” Exception To The Fifth

Amendment

T he F i f t h A mend ment ’s ju st comp en s at ion

requirement is categorical: The sovereign’s authority

to take private property exists only to the extent that

the taking is necessary for public use. Indeed, the Court

emphasized recently that when the government takes

property, it must always pay just compensation. Knick v.

Twp. of Scott, 588 U.S. 180, 190 (2019) (“a property owner

has a Fifth Amendment entitlement to compensation as

soon as the government takes his property without paying

for it”; emphasis added). Or, as the Court put it in Lucas

v. South Carolina Coastal Council, 505 U.S. 1003, 1015

(1992), government action that prevents all “economically

6

beneficial or productive use” of property is a per se taking

requiring compensation. That plainly is what happened

to Pena when the SWAT team destroyed his ability to

continue using what had been a very productive print shop.

In such circumstances, the Constitution requires no

balancing or weighing of interests. “When the government

physically takes possession of an interest in property

for some public purpose, it has a categorical duty to

compensate the former owner.” Arkansas Game & Fish

Comm’n v. United States, 568 U.S. 23, 31 (2012) (quoting

Tahoe–Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302, 322 (2002)). As

the Court summarized in Cedar Point Nursery v. Hassid,

594 U.S. 139, 147 (2021):

“The Founders recognized that the protection

of private property is indispensable to the

promotion of individual freedom. As John

Adams tersely put it, [p]roperty must be

secured, or liberty cannot exist.’ [Citation].

This Court agrees, having noted that protection

of property rights is ‘necessary to preserve

freedom’ and ‘empowers persons to shape and

to plan their own destiny in a world where

governments are always eager to do so for

them.’” Murr v. Wisconsin, 582 U.S. 383 (2017).”

This is plainly one of those cases the Court had in mind

when it spoke of “governments . . . always [being] eager”

“to shape and to plan” a property owner’s destiny. Seeking

to hide behind the conceded necessity of apprehending

an armed criminal, the city asserts the right to destroy

private property in order to do so—and to be wholly free

7

of any consequences. More than that, it asserts the right

to foist all the consequences onto a concededly innocent

property owner who had nothing to do with either the

criminal or his crime. That cannot comport with the

Constitution. Yet the Ninth Circuit accepted it.

II. Even Legitimate Government Actions Can Require

Compensation When They Impress Private

Property Into Public Service.

The government defended itself below by claiming

that its focus on protecting the public was legitimate.

The Ninth Circuit adopted that rationale. The question,

however, is whether legitimacy should count for anything

in this constitutional analysis? In a word, no.

The decision proceeds as though recognition of a

legitimate governmental goal validates whatever solution

is chosen. Not relevant. Determination of a legitimate

governmental objective is the first, not the last, step. The

law distinguishes between means and ends, and the means

chosen to achieve the objective must survive Constitutional

scrutiny the same as the ends.

Legitimate goals are constitutionally irrelevant.

For the proper exercise of any governmental power, the

underpinning of such a beneficent purpose must exist.

That much was settled no later than 1922, when the Court

examined a statute designed to stop land subsidence

caused by underground coal mining and concluded that

the prerequisites for exercise of both police power and

eminent domain were present:

8

“We assume, of course, that the statute was

passed upon the conviction that an exigency

existed that would warrant it, and we assume

that an exigency exists that would warrant the

exercise of eminent domain. But the question

at bottom is upon whom the loss of the changes

desired should fall.”5

After determining that government action was done

to achieve a legitimate goal, the means chosen must be

constitutionally examined to ensure that private rights

have not been violated. Governmental power is not

permitted to run roughshod over the constitutionally

protected rights of individuals. That is what the Court

meant when it concluded in First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, 482

U.S. 304, 321 (1987) that:

“many of the provisions of the Constitution are

designed to limit the flexibility and freedom

of governmental authorities and the Just

Compensation Clause of the Fifth Amendment

is one of them.”

Pennsylvania Coal was merely one in a long line of

decisions authored by diverse Justices in which the Court

explained to government agencies that the general legal

propriety of their actions and the need to pay compensation

5. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)

(emphasis added). See also Florida Rock Indus., Inc. v. United

States, 18 F.3d 1560, 1571 (Fed. Cir. 1994): “It is necessary that

the Government act in a good cause, but it is not sufficient. The

takings clause already assumes the Government is acting in the

public interest. . . .”

9

under the Fifth Amendment present different questions,

and the need for the latter is not obviated by the legitimacy

of the former.

The Ninth Circuit, however, seems not to have gotten

the message. Evidently believing that the government was

pursuing the public good, it ended its analysis at that point.

Demonstrating the error of that theory, the dissenting

opinion in Pennsylvania Coal had argued precisely the

same, saying that a “restriction imposed to protect the

public health, safety or morals from dangers threatened

is not a taking.”6 Eight Justices rejected that proposition

more than a century ago.

In Loretto v. Teleprompter Manhattan CATV Corp.,

New York’s highest court upheld a statute as a valid

police power exercise and dismissed an action seeking

compensation. This Court reversed:

“The Court of Appeals determined that § 828

serves [a] legitimate public purpose . . . and thus is

within the State’s police power. We have no reason

to question that determination. It is a separate

question, however, whether an otherwise valid

regulation so frustrates property rights that

compensation must be paid.”7

Similarly, in Kaiser Aetna v. United States, the Corps

of Engineers decreed that a private marina be opened to

public use without compensation. The Court reversed,

explaining:

6. 260 U.S. at 417 (Brandeis, J. dissenting).

7. 458 U.S. 419, 425 (1982) (Marshall, J.) (emphasis added).

10

“In light of its expansive authority under the

Commerce Clause, there is no question but that

Congress could assure the public a free right of

access to the Hawaii Kai Marina if it so chose.

Whether a statute or regulation that went so far

amounted to a taking, however, is an entirely

separate question.”8

Or, as the Court put it in Nollan:

“That is simply an expression of the Commission’s

belief that the public interest will be served by

a continuous strip of publicly accessible beach

along the coast. The Commission may well be

right that it is a good idea, but that does not

establish that the Nollans (and other coastal

residents) alone can be compelled to contribute

to its realization. Rather, California is free

to advance its ‘comprehensive program,’ if it

wishes, by using its power of eminent domain

for this ‘public purpose.’”9

That is why the Court concluded in First English

that the Fifth Amendment was designed “to secure

compensation in the event of otherwise proper interference

amounting to a taking.”10

8. 444 U.S. 164, 174 (1979) (Rehnquist, J.) (emphasis added).

9. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 841 (1987)

(Scalia, J.).

10. 482 U.S. at 315 (Rehnquist, C.J.) (first emphasis, the

Court’s; second emphasis added).

11

In cases like these, the Court has directed the

property owners to the Court of Federal Claims to

determine whether these exercises of government power,

though substantively legitimate, nonetheless required

compensation.

“In such cases the characteristic feature is the

defendant’s use of rightful . . . regulatory rights

to control and prevent exercise of [private]

ownership rights the defendant is unwilling to

purchase and pay for.”11

In sum, for a taking to occur, it matters not whether

government officials acted in good or bad faith, or for good

or bad reasons. What matters is the impact of their acts,

not the purity vel non of their motives. The Court put

it succinctly when it concluded that the Takings Clause

“focuses directly upon the severity of the burden that

government imposes upon private property rights”—not

the importance of the governmental interest advanced by

the taking. Lingle, 544 U.S. at 539.12

Indeed, if government motives are benign—or done

for the best of reasons—that only fortifies the need

for compensation required by the Just Compensation

guaranty.

11. Florida Rock Indus., Inc. v. United States, 791 F.2d 893,

899 (Fed. Cir. 1986) (quoting with approval; emphasis the Court’s).

12. See Hughes v. State of Washington, 389 U.S. 290, 298

(1967): “[T]he Constitution measures a taking of property not

by what a State says, or by what it intends, but by what it does.”

(Stewart, J., concurring) (emphasis added).

12

Shortly after the Ninth Circuit filed its opinion here,

the Eleventh Circuit decided Alford v. Walton County, 159

F.4th 844 (11th Cir. 2025). There, that court concluded, in

finding liability for regulations enacted during the COVID

emergency, that “the normal requirements of the Takings

Clause remain in force, even during emergencies.” Id. at

860.

Thus, it is not enough to conclude that it is a good

thing to protect the populace from gangsters and thugs.

As a matter of Constitutional policy, severe invasions

of protected property rights cannot occur unless

compensation is paid. If Los Angeles believes that its

action is otherwise worthwhile then, as the Court put it

in Nollan, “it must pay for it.” 483 U.S. at 842.

III. When The Government’s Interests Are Financial,

Its Actions Must Be Viewed With Skepticism.

Underlying the Court’s conclusion that Constitutional

decisions necessarily impinge on the freedom and

f lexibility of government agencies (First English

Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304, 321 (1987)) was undoubtedly the Court’s

repeated recognition that, when the governmental

interest is financial, its actions must be viewed warily.

See United States Trust Co. v. New Jersey, 431 U.S. 1, 26

(1977) (“complete deference to a legislative assessment of

reasonableness and necessity is not appropriate because

the State’s self-interest is at stake. A governmental entity

can always find a use for extra money. . . .” (emphasis

added); United States v. Good Real Property, 510 U.S.

43, 55-56 (1993) (careful examination “is of particular

importance . . . where the Government has a direct

13

pecuniary interest in the outcome of the proceeding”);

United States v. Winstar Corp., 518 U.S. 839, 896 (1996)

(concerns regarding “statutes tainted by a governmental

object of self-relief . . . in which the Government seeks

to shift the costs of meeting its legitimate public

responsibilities to private parties”).

The lower courts were concerned that finding

government liability here would overstrain municipal

budgets. Irrelevant. Indeed, the Court’s jurisprudence

rebels at the thought. “Time and again in Takings Clause

cases, the Court has heard the prophecy that recognizing

a just compensation claim would unduly impede the

government’s ability to act in the public interest.” Ark.

Game & Fish, 568 U.S. at 36. The Court has consistently

“rejected this argument when deployed to urge blanket

exemptions from the Fifth Amendment’s instruction.” Id.

at 37 (“While we recognize the importance of the public

interests the Government advances in this case, we do not

see them as categorically different from the interests at

stake in myriad other Takings Clause cases.”); see also

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992)

(“If, instead, the uses of private property were subject to

unbridled, uncompensated qualification under the police

power, the natural tendency of human nature would be

to extend the qualification more and more until at last

private property disappeared.” (internal quotation marks

omitted)).

As the late Professor Gideon Kanner, a preeminent

star in the takings firmament, put it, “it seems safe to

say that the Constitution—or at least the Bill of Rights—

was the product of the framers’ fear of an overreaching

government, and their desire to protect individual citizens

14

from governmental excesses. . . . [T]he purpose of the

. . . Bill of Rights [] was to protect the people from the

government, not vice versa.” (Gideon Kanner, Just How

Just is Just Compensation? 48 Notre Dame L. Rev. 786,

784 (1973).)

Owners’ rights to be secure in their property is one

of the primary objects for which the national government

was formed. In United States v. Jones, 565 U.S. 400,

405 (2012), the Court recalled Lord Camden’s holding

in Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765),

“The great end for which men entered into society was

to secure their property.” This Court explained, “In

any society the fullness and sufficiency of the securities

which surround the individual in use and enjoyment of

his property constitute one of the most certain tests of

the character and value of government.” Monongahela

Nav. Co. v. United States, 148 U.S. 312, 324 (1893)

(followed by Olson v. United States, 292 U.S. 246, 254

(1934)).

Our Constitution provides a baseline of minimal

protection to all the rights of all citizens, with individual

states having the discretion to provide more, but never

less protection. Simmons v. South Carolina, 512 U.S. 154,

174 (1994); see West Virginia State Board of Education

v. Barnette, 319 U.S. 624, 638 (1943). Justice Kavanaugh

explained it this way: “the Constitution sets a floor for

the protection of individual rights. The constitutional

floor is sturdy and often high, but it is a floor. Other

. . . government entities generally possess authority to

safeguard individual rights above and beyond the rights

secured by the U.S. Constitution.” American Legion v.

15

American Humanist Assn., 139 S.Ct. 2067, 2094 (2019)

(Kavanaugh, J., concurring).

When the government takes an owner’s property the

government has a “categorical duty” to comply with the

Fifth Amendment. See Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 31 (2012); Horne v. Dept.

of Agriculture, 576 U.S. 350, 362 (2015). The Fifth

Amendment “prevents the public from loading upon

one individual more than his just share of the burdens

of government, and says that when he surrenders to the

public something more and different from that which is

exacted from other members of the public, a full and

just equivalent shall be returned to him.” Monongahela,

148 U.S. at 325. As the Court reiterated recently,

“[b]y requiring the government to pay for what it takes,

the Takings Clause saves individual property owners

from bearing ‘public burdens which, in all fairness and

justice, should be borne by the public as a whole.’” Sheetz

v. County of El Dorado, 601 U.S. 267, 273-74 (2024) In

other words, cash may not heal all wounds, but it is a

constitutionally acceptable remedy for unconstitutional

government action.

16

CONCLUSION

Certiorari should be granted, the result overturned,

and the law rationalized. There are no exceptions to the

Fifth Amendment’s just compensation guaranty when

property is taken for a public purpose. The burden of

such takings should be shouldered by the community as

a whole, and this Court should make that clear.

Respectfully submitted,

Michael M. Berger

Counsel of Record

Manatt, Phelps & Phillips, LLP

2049 Century Park East,

Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

Small Property Owners of

San Francisco Institute and

Owners Counsel of America