There’s not a lot of new territory forged in the U.S. Court of Appeals for the Ninth Circuit’s opinion in Pena v. City of Los Angeles, No. 24-2422 (Nov. 4, 2025), holding that the city could not be liable for a taking after SWAT officers severely damaged a home in the course of apprehending a suspect who had taken refuge there.
After all, the other federal courts which have addressed the issue of whether a local government’s damaging or destroying a home in the course of apprehending a criminal suspect is a taking have all concluded no, although for a variety of reasons. Some say there’s no absolute right to exclude, with the issue turning on whether the police are acting pursuant to a valid warrant, incorporating by reference Fourth Amendment property law. Some say the owner has no expectations of exclusion of the government as a background principle. Some say the owner can and should anticipatorily mitigate by buying insurance.
And in what we find to be the least defensible justification, conclude that because the police are exercising the police power—are acting for the public’s health, safety, and welfare—there can be no taking—categorically. This is where Ninth Circuit’s panel majority came down, holding that LAPD SWAT’s use of force to dislodge a suspect who had taken refuge in Pena’s print shop was “authorized, reasonable, and lawful” (as the parties agreed), and thus could not be a taking. The court concluded:
At the time of the Founding, the principle of just compensation did not require payment in cases where, like here, the government reasonably and necessarily destroyed property in pursuit of a dangerous fugitive. History counsels that such reasonable and necessary destruction by law enforcement officers falls outside the scope of the Takings Clause.
Slip op. at 7-8. The court recognized a “public safety” (aka necessity) exception to the Just Compensation requirement, and concluded that if the police are acting reasonably to protect the public interest, there can be no taking. The bottom line:
Accordingly, we hold only that no taking occurs for the purposes of the Takings Clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety.
Slip op. at 14.
The court also acknowledged the circuit split on the mode of analysis (whether the “no taking” conclusion is absolute, or might the government be liable in some circumstances), and that two Supreme Court Justices (Sotomayor and Gorsuch) think there is something certworthy there. See slip op. at 9.
One Ninth Circuit judge concurred, and would have held “that the Los Angeles police’s actions fell under the search-and-arrest privilege that serves as a background limitation on all property rights, including Pena’s here, so no property right was infringed at all and, accordingly, no compensation is owed.” Slip op. at 31-32 (footnote omitted). Another categorical exception.
The entire opinion is well worth a read. The court walked through text, history, and tradition (no surprise there), and concluded that the “Supreme Court has never held that the State’s reasonable and necessary destruction of property under its police power constitutes a compensable taking.” Slip op. at 24.
To us, to conclude that because that police action was super-necessary it is not a taking, is to reject the foundation of the regulatory or de facto takings doctrine: that an otherwise valid exercise of some power other than the eminent domain power will, if it “goes too far” into the property rights of an owner, be deemed to be a taking requiring compensation giving the government a choice: stand down or pay up. Indeed, the more necessary for public health, safety, and welfare, the more it should be compensated. These are not Kelo-like actions where the government conduct has only predictable, or attenuated, public benefits, but a direct promotion of the public good.
That all said, we tend to focus on the Holmes-authored eight-Justice majority in Mahon and its “goes too far” language, contrasting it with the “government could hardly go on” phrasing later in the opinion. But we should pay more attention to the solo dissent of Justice Brandeis, who argued that because the Kohler Act was so necessary, it cannot be a taking, and cannot result in compensation. (And in our view, there’s no question the Kohler Act was, like, really necessary.)
This was a dissenting view, and why we think it is too bad that it is overlooked, is that the necessity principle seems to adopt and incorporate it, and it is troubling that Brandeis’ rationale is deployed to deny compensation, when a solid exercise of police power is not terribly relevant to the compensation question. But it is a minority view, and it should be seen as such.
But that’s just saying what won’t work. Thus far, the question of SWAT takings has not been taken up by the Supreme Court under any theory, despite at least a couple of very solid vehicles presenting the case. So what approach might interest the Court? Especially in a way that does not risk the Court’s majority, or even a minority in dissent, scaling back on what we view as the fundamental principles of Mahon?
This was the topic of our recent presentation at the 2025 Brigham-Kanner Conference, if you want to see our thinking on this topic. For our overall thinking on “emergency” takings like these, take a gander at an article we published a few years ago, “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).
Will there be more action in this case? We suspect so.
Pena v. City of Los Angeles, No. 24-2422 (9th Cir. Nov. 4, 2025)