Judges Rule Against Property Owners Seeking Compensation for SWAT Team Damage

Lawyers said police damage is like condemning property for a new street: Owners should be paid. An appeals court panel saw it differently.

Carlos Pena shows some of the damage done by a SWAT team to his business in the North Hollywood area of Los Angeles in August 2022. Courtesy Institute for Justice

A three-judge panel of the Ninth Circuit Court of Appeals ruled on Nov. 3 that the Los Angeles Police Department SWAT team is not liable for damage done to a business while chasing a criminal in 2022.

NoHo Printing & Graphics Owner Carlos Pena will ask the full court to rehear the case, his attorneys from the Institute for Justice said in a statement posted to the Institute’s webpage.

A majority ruled that arresting a criminal is an exception to the takings clause in the Fifth Amendment to the Constitution. That clause requires the government to compensate the owners of property taken by government action.

In August 2022, a criminal barricaded himself inside the business Pena had owned for 30 years. Police actions resulted in tens of thousands of dollars in damage and lost profits. Pena’s insurance and the city refused to pay, so in July 2023, he sued.

In March 2024, the court ruled against Pena, and he appealed to the Ninth Circuit. Pena vowed to keep up the fight. In an email to The Epoch Times, Pena wrote that the battle is larger than just his business.

“What happened to me isn’t right and sometimes it feels like the deck is stacked against good citizens. I just don’t want anyone else to lose everything they worked for, like I did,” Pena wrote.

Pena and McKinney, Texas, homeowner Vicki Baker both filed claims against their respective cities after police damaged their property.

In Baker’s case, a fugitive high on methamphetamine barricaded himself in her house with a teenage hostage. He eventually released the teen girl, who told police that her kidnapper told her he would not be taken alive.

This is damage to Vicki Baker's house in McKinney, Texas, after a July 25, 2020, raid by the McKinney Police Department's SWAT team. Courtesy Deanna Cook

Baker’s house was flooded with tear gas, and a police SWAT team damaged the garage doors, fences, and the yard. The fugitive eventually killed himself in the master bedroom, Baker told The Epoch Times.

The city initially refused her claim, and Baker sued, winning $60,000. That was reversed after the city appealed. She took her case to the U.S. Supreme Court, which declined to hear her arguments on Nov. 25, 2024.

Institute for Justice attorneys who represented both property owners said that what happened in their cases is no different from the city condemning the property to build a road or public facility. They agreed the police action was necessary in each case, but that shouldn’t relieve the city of its responsibility to pay for the damage.

“The Fifth Amendment is clear that when the government destroys someone’s property for a public purpose, it must pay them just compensation. Just because the destruction was done by police doing their job, that doesn’t mean the government is suddenly off the hook,” Institute for Justice Attorney Suranjan Sen wrote in an email to The Epoch Times.

“We hope the full court will rehear this case and realize the panel made an error when it refused to rule in favor of Carlos.”