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 CHIEF THOMAS J. TIDERINGTON

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

A lexa L. Gervasi

Counsel of Record

Cobb & Johns PLLC

13341 West US-290,

Building 2

Austin, TX 78737

(512) 399-3150

alexa@cobbjohns.com

Counsel for Amicus Curiae

121095

A

(800) 274-3321 • (800) 359-6859

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TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Requiring the government to compensate

property owners for damage does not

impede law enforcement activities . . . . . . . . . . . . 4

A. Police training is not concerned with

who will pay for damage . . . . . . . . . . . . . . . . 5

B. Law enforcement expects that the

mu n ic ipa l it y— not t he i n no c ent

owner— will cover the costs of property

damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Municipal compensation does not

impede law enforcement . . . . . . . . . . . . . . . . 9

ii

Table of Contents

Page

II. Sh i f t i ng t he co st of p ol ic e - c au se d

damage from innocent owners to the

public supports, rather than undermines,

effective law enforcement . . . . . . . . . . . . . . . . . . 10

A. Property damage caused by lawful

police action is properly understood as

a cost of police business . . . . . . . . . . . . . . . . 11

B. Forcing innocent owners to bear these

costs creates new victims of crime

and erodes community trust . . . . . . . . . . . . 11

C. Officers themselves are citizens of the

communities they police . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii

TABLE OF CITED AUTHORITIES

Cases

Page

Pena v. City of Los Angeles,

158 F.4th 1033 (9th Cir. 2025) . . . . . . . . . . . . . . . . . 5, 7

Constitutional Provisions

U.S. Const. amend. V

Takings Clause . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 10, 12

Statutes

Minn. Stat. § 626.74 (2025) . . . . . . . . . . . . . . . . . . . . . . . 10

Other Authorities

Andy Sheehan, City council looks to make

homeowners impacted by Garfield shootout

financially whole, CBS Pittsburgh, Feb. 19, 2024 . . . . . 9

Brad Devereaux, Kalamazoo offers $150K to

tenant, landlord af-ter tearing down home

during police standoff, mlive.com, Mar. 7, 2022 . . . . 9

IACP, National Consensus Policy and Discussion

Paper on Use of Force (rev. July 2020) . . . . . . . . . . . . 6

Office of Community Oriented Policing Services,

President’s Task Force on 21st Century Policing,

Final Report (May 2015) . . . . . . . . . . . . . . . . . . . . . . 12

Vic Micolucci, Police work-ing with city to fix

damage SWAT team left behind, Aug. 18, 2021 . . . . 9

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INTEREST OF AMICUS CURIAE1

Chief Thomas J. Tiderington spent forty-four years

serving in law enforcement, ultimately retiring as one

of the longest-serving police chiefs in U.S. history. He is

uniquely experienced and qualified in search-and-seizure

practices and offers a real-world perspective on the

implications that judge-made policies—like the policepower exception to the Takings Clause—have on officers

and the execution of their duties.

Chief Tiderington began his career in 1978 with

the Detroit Police Department. When budget cuts

forced Detroit to lay off 1500 officers, Chief Tiderington

transitioned to the Fort Lauderdale Police Department,

where, over the next twenty years, he advanced through

the ranks—from patrol officer to Captain of the Special

Investigations Division. For more than five years, he was

assigned to the U.S. Drug Enforcement Administration

as Group Supervisor-in-Charge of the South Florida

Regional Drug Task Force and led one of the most

successful international money-laundering investigations

on record. In 2001, Chief Tiderington returned to

Michigan as Plymouth Township’s Chief of Police, serving

in that position until his retirement in 2022.

In addition to his regular duties, Chief Tiderington

spent four years on Michigan’s Human Trafficking

Commission, appointed by Governor Rick Snyder, and

No counsel for any party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

Timely notice of the intent to file this amicus brief was provided

to all parties.

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has served on numerous boards related to investigation

operations. He is also a life member of the International

Association of Chiefs of Police.

Chief Tiderington has spent his career instructing and

training fellow members of law enforcement. Over the past

thirty-five years, he has developed and presented detailed

trainings to tens of thousands of state, local, and federal

officers on subjects ranging from undercover operations,

search-warrant execution, raid planning, use of force,

risk and threat assessment, SWAT operations, and police

ethics. Chief Tiderington is recognized as an expert on

use-of-force policy, having lectured at the International

Association of Chiefs of Police annual conference on raid

tactics and routinely advising the U.S. Department of

Justice on the propriety of use-of-force decisions by federal

officers.

Chief Tiderington has no financial or institutional

stake in this case. He files this brief because he is

concerned that the decision below rests on an empirical

premise about police behavior that does not match the

reality he has employed, observed, taught, and supervised

for over four decades.

Courts assume that requiring the public to bear the

cost of property damage caused by lawful police operations

would somehow impede effective law enforcement. But

that assumption is incorrect. Officers expect that their

municipality will compensate innocent citizens for the

costs of police business. Chief Tiderington files this brief

to share that practical perspective and to demonstrate

the need for this Court’s review.

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SUMMARY OF ARGUMENT2

The Petitioner asks this Court to clarify whether

the Takings Clause allows the government to destroy

an innocent person’s property in pursuit of a fugitive

without paying for the damage. Several courts of appeals

have answered “yes,” creating a patchwork of “policepower,” “public-necessity,” and “search-and-arrest”

exceptions to the Clause. Whatever doctrinal label they

use, those decisions share a common policy assumption:

that requiring the public to bear these costs would

deter officers from acting and compromise effective law

enforcement.

Chief Tiderington, drawing on more than four decades

of real-world experience and training, files this brief to

clarify that this policy concern does not reflect reality.

Quite the opposite:

First, the question of who pays for collateral property

damage simply does not enter tactical decision-making.

For officers, the answer is obvious and assumed:

municipalities (and, in turn, the public) cover the costs

of public business. This issue, therefore, does not appear

in police-academy curricula, in-service training, or any

model policy. Officers planning a search warrant or a

SWAT response weigh officer safety, public safety, suspect

apprehension, evidence preservation, and the minimization

of collateral harm. They do not pause to ask whose pocket

Chief Tiderington files this amicus brief concurrently

with an amicus brief in support of petitioner in Hadley v. City of

South Bend, Case No. 25-1158. Chief Tiderington’s argument is

substantively identical in each case.

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will be lighter when the smoke clears; they just assume it

will be added to the municipality’s tab. This assumption

that the public, rather than individual property owners,

will bear those costs is not a deterrent to police work. It

is just what makes sense.

Second, requiring municipalities to compensate

private citizens for damage to their property is more than

a constitutional imperative; it’s sound policy. Property

damage caused by police operations is a cost of doing police

business; ensuring that the public pays for public actions

reinforces community trust—the indispensable foundation

of effective policing; forcing innocent owners to bear the

financial weight of someone else’s crime would create new

victims of that crime; and forcing officers, members of the

very communities they protect, to knowingly victimize

their friends and neighbors would place an unfair and

unreasonable burden on law enforcement.

This Court should grant certiorari to uphold the

Constitution. Doing so will not chill law enforcement. It

will align the law with officers’ expectations.

ARGUMENT

I.

Requiring the government to compensate property

owners for damage does not impede law enforcement

activities.

Judge-made exceptions to the Takings Clause, like the

public-necessity exception applied by the Ninth Circuit

here, are animated in part by a concern that requiring

municipalities to compensate innocent property owners for

damage will chill police operations. Indeed, in the case at

bar, the Ninth Circuit justified its exception to the Takings

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Clause by reasoning that, otherwise, “law enforcement

officers (and other government actors) faced with splitsecond decisions regarding protecting the public and

saving lives would need to be constantly attendant to the

potential financial consequences of their actions.” Pena

v. City of Los Angeles, 158 F.4th 1033, 1047 (9th Cir. 2025)

(emphasis in original). But that concern is not grounded

in reality. In Chief Tiderington’s experience, the question

of who will ultimately pay for property damage caused

during lawful police operations simply does not enter the

conversation. The assumed answer is so obvious that it

needs no discussion: liability is on the municipality.

A.

Police training is not concerned with who will

pay for damage.

Chief Tiderington has taught law-enforcement courses

for more than thirty-five years, including curricula on

undercover operations and police raids that he developed

and has presented to tens of thousands of state, local, and

federal officers. He has trained officers at the Michigan

State Police’s Drug Unit Commanders School, the Florida

Department of Law Enforcement, the Nevada High

Intensity Drug Trafficking Area program, the CharlotteMecklenburg Police Institute, the St. Louis County and

Municipal Police Academy, the Columbus Ohio Regional

Police Academy, and numerous other academies and

conferences. He has also lectured on use-of-force policy

and procedure at the International Association of Chiefs

of Police annual conference and on raid tactics at venues

across the country.

None of these courses—not one—contains any

instruction on the question of who pays when collateral

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property damage occurs during lawful police action.

Indeed, the leading model use-of-force policy in the

country—jointly adopted by eleven major law-enforcement

organizations, including the International Association of

Chiefs of Police and the Fraternal Order of Police—says

nothing about who bears the financial cost of force or its

collateral consequences. See International Association

of Chiefs of Police, National Consensus Policy and

Discussion Paper on Use of Force (rev. July 2020).

That omission is not an oversight. It reflects officers’

universal understanding that compensation, if any, is a

matter for the municipality, not for the officers planning

or executing the operation. Officer focus is instead, as it

should be, on officer safety, the safety of bystanders and

the suspect, preservation of evidence, the minimization of

force, and the use of de-escalation and crisis-negotiation

tools where appropriate. See id. To be sure, officers are

also trained to avoid unnecessary destruction, but they

are not taught to avoid necessary destruction to save the

government’s wallet.

Chief Tiderington has been personally involved in

hundreds—if not thousands—of search warrants over the

course of his career. In none of them did the question “who

will pay for any damage” influence a tactical decision. The

reason is plain: officers in the field are trained to assess

and respond to the situation in front of them, not to let

financial decisions dictate their actions.

The record before the Court bears this out. As

Sergeant Paul Hong, the on-scene Los Angeles Police

Department SWAT supervisor involved in the damagecausing mission at issue in this case, testified, he does

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not “take in consideration as far as the cost of what the

City might pay out.” Sgt. Paul Hong Dep. 47:2–4 (filed in

Excerpts of Record at Doc. 10.1, May 28, 2024, Pena v. City

of Los Angeles, 158 F.4th 1033 (9th Cir. 2025), C.A. E.R.

(Doc. 10.1) at 60:2–4). Nor does he “sit there during the

unfolding of a tactical incident . . . and calculate what said

property damage could be,” though he certainly remains

mindful of his duty to avoid unnecessary destruction.

Hong Dep. 47:8–12; C.A. E.R. (Doc. 10.1) at 60:8–12.

That sworn testimony from the officer who planned and

executed the subject law-enforcement action reflects Chief

Tiderington’s experience: tactical decisions in the field

are not driven by financial calculations—and certainly

not by concerns about what the municipality might be

required to pay.

B. L a w e n f o r c e m e n t e x p e c t s t h a t t h e

municipality—not the innocent owner—will

cover the costs of property damage.

To the extent officers do think about who will pay

for the costs of property damage, Chief Tiderington’s

experience is that officers assume that the relief requested

by the Petitioner in this case is already the reality—the

municipality pays for the damage caused. Courts’ concerns

otherwise, that requiring the public to bear these costs

would surprise or deter law enforcement, is out of step

with this real-world understanding.

Indeed, if anything, the rule advanced by the

courts of appeals—pushing costs onto the innocent

property owners—is the greater danger to effective law

enforcement. Based on Chief Tiderington’s observations,

it is far more likely that an officer will pause and second-

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guess himself if he knows that the innocent homeowner

will bear the entire financial weight of the officer’s

actions. Officers are trained to act decisively in dangerous

situations, but they are also members of the very

communities they police. As members of the community—

and citizens themselves—officers do not expect that their

tactical decisions will leave their neighbors to absorb the

financial loss. They expect the government to protect and

serve, including by covering the costs—even collateral

costs—of such protection and service.

The record here again reflects Chief Tiderington’s

experience. Explaining that he does not worry about

the costs to the municipality when executing a mission,

Sergeant Hong clarified that he is, however, concerned

with “minimizing the impact of anybody involved,

especially a third-party property owner,” describing this

as a “heavy consideration.” Hong Dep. 47:4–7; C.A. E.R.

(Doc. 10.1) at 60:4–7. When asked what he understood

would happen after the raid, Sergeant Hong testified that

“the assumption would be the outside entity at some level

would assume some ownership of the incident. . . . That

would be the general expectation.” Hong Dep. 38:24–39:5;

C.A. E.R. (Doc. 10.1) at 53:24–54:5).

Sergeant Hong’s testimony is not idiosyncratic. It

tracks the general expectation that prevails throughout

the law-enforcement community: officers are already

heavily concerned about the impact on innocent third

parties and, with that existing concern in mind, they

expect the municipality in charge of the lawful police

conduct will pay for the damage caused by the lawful

police conduct.

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This expectation is not remarkable. W hat is

remarkable is that the municipality here refused to

provide compensation and that the court ratified that

refusal, defying the expectations of the officers on the

ground and imposing added pressure to their already

“heavy” concern for innocent property owners.

C.

Municipal compensation does not impede law

enforcement.

Municipalities across the country routinely compensate

innocent property owners for damage caused during police

operations as a matter of state and local policy. There

are numerous recent examples: Garfield, Pennsylvania,

after a 2024 SWAT shootout damaged neighbors’ homes;

Kalamazoo, Michigan, which paid $150,000 to a tenant and

landlord whose home was torn down during a 2022 police

standoff; and Jacksonville, Florida, where the city worked

with the police department to fix damage left by a SWAT

team. 3 In none of these states—Pennsylvania, Michigan,

and Florida—have police forces shown any sign of slowing

down out of concern that the taxpayers—instead of the

innocent property owner—will pay for any damage.

In Minnesota, state law requires that if officers cause

property damage while executing a search warrant or

Andy Sheehan, City council looks to make homeowners

impacted by Garfield shootout financially whole, CBS Pittsburgh,

Feb. 19, 2024, https://perma.cc/9NCL-T9JB; Brad Devereaux,

Kalamazoo offers $150K to tenant, landlord af-ter tearing down

home during police standoff, mlive.com, Mar. 7, 2022, https://

perma.cc/77PX-7QM9; Vic Micolucci, Police work-ing with city

to fix damage SWAT team left behind, News4Jax.com, Aug. 18,

2021, https://perma.cc/AES9-W4FR.

3

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apprehending a suspect, the local government unit “is

responsible for paying the compensation,” even if the

damage is caused by officer negligence. Minn. Stat.

§ 626.74 (2025). For nearly thirty years, this law has been

on the books, yet there is no indication that Minnesota’s

policing has been chilled, that its SWAT teams hesitate,

or that fugitives escape because these costs are paid by

the public instead of the private citizens whose property

was taken.

Again, the record here reflects the same reality. Asked

whether “the tactics [his] team employs would remain

unchanged, regardless of whether the City would be on the

hook for property damage,” Sergeant Hong unequivocally

answered: “That is correct.” Hong Dep. 45:20–46:1; C.A.

E.R. (Doc. 10.1) at 58:20–59:1.

T he se r e a l-world e x a mple s r ei n for ce Ch ief

Tiderington’s experience and demonstrate that concerns

about police deterrence do not justify the judge-made

exceptions to the Takings Clause’s clear demands. Officers

have not asked for, do not expect, and are not motivated

by this constitutional carveout.

II. Shifting the cost of police-caused damage from

innocent owners to the public supports, rather than

undermines, effective law enforcement.

The empirical case for g ranting certiorari is

straightforward: police expect municipalities to pay for

the costs of damage caused by lawful police activities.

Fulfilling that expectation and treating these costs as

a public expense, rather than as a burden on innocent

owners, is not merely required as a matter of constitutional

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doctrine; it is preferable as a matter of sound policy and

policing.

A.

Property damage caused by lawful police

action is properly understood as a cost of police

business.

Police departments cause property damage every

year in the lawful execution of their duties. They knock

down doors. They breach walls. They deploy chemical

munitions, flash-bang devices, and ramming vehicles. They

take these actions to enforce the law for the benefit of the

public. The damage that results, like every other expense

of operating a police department, is a cost of the public

function the department performs. Municipalities should,

therefore, treat it as such: account for collateral damage

in their budgets and pay these costs as a matter of course.

Adopting the Ninth Circuit’s reasoning and treating

this damage as a private misfortune—the unrecoverable

bad luck of the innocent property owner stuck in the path

of destruction—is profoundly inequitable and serves

neither the public nor the private citizen.

B. Forcing innocent owners to bear these costs

creates new victims of crime and erodes

community trust.

Police departments do not exist in isolation from

their communities. The legitimacy on which effective law

enforcement depends is built case by case, interaction by

interaction. When a department’s response to a crime

ends with an uninvolved homeowner or shopkeeper paying

tens of thousands of dollars in repair costs—on top of

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having had her home invaded by tear gas or her business

smashed open by a battering ram—that homeowner

has, in a meaningful sense, become a new victim of the

underlying crime. She has been harmed by conduct she

did nothing to cause by the very people who are charged

with protecting her from harm.

That is not a foundation on which community-oriented

policing can be built. Chief Tiderington introduced and

managed community-policing strategies for more than

two decades and understands that public confidence in

the police is a fragile and indispensable resource. See,

e.g., Office of Community Oriented Policing Services,

President’s Task Force on 21st Century Policing, Final

Report 9–18 (May 2015) (identifying “Building Trust and

Legitimacy” as the foundational pillar of effective modern

policing). Enforcing the text of the Takings Clause—

ensuring that public costs are borne by the public—

reinforces that confidence. The exceptions crafted by the

courts of appeals—forcing innocent owners to individually

pay the costs of police activity—erode it.

Innocent people should not be forced to pay for the

crimes of others. The purpose of the government’s police

power is to protect people from becoming victims—not

to create new ones.

C.

Officers themselves are citizens of the

communities they police.

Police officers are not a separate caste. They live in the

communities they protect. They have neighbors, friends,

and family who own homes and businesses, and they,

themselves, own homes and businesses in the community.

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Asking officers to execute raids or pursue fugitives

knowing that their innocent neighbors or loved ones will

foot the bill places an unfair burden on officers’ already

heavy shoulders. It asks officers to harm the people they

are charged to protect—to act against the very mission

of policing. Such a policy decision would flatly undermine

everything that Chief Tiderington has taught for decades,

and, based on his experience, would not be supported by

the officers responsible for its implementation.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

A lexa L. Gervasi

Counsel of Record

Cobb & Johns PLLC

13341 West US-290,

Building 2

Austin, TX 78737

(512) 399-3150

alexa@cobbjohns.com

Counsel for Amicus Curiae

May 11, 2026