The police have wide leeway when they’re in pursuit of a dangerous criminal. But can they destroy homes, businesses and other property with impunity during the normal course of the job?
Yes, they can.
Carlos Pena is the owner of a commercial printing and graphics shop in the North Hollywood neighborhood of Los Angeles. It took Mr. Pena decades to build the business after emigrating from El Salvador. But it took only a few hours to destroy it.
Last August, a fugitive burst into Mr. Pena’s shop, threw him out and barricaded himself inside. A Los Angeles SWAT team subsequently fired more than 30 rounds of tear gas into the shop over the course of 13 hours. When the officers finally entered the building, the suspect had escaped. But the shop wasn’t so lucky. Grenades had torn through the walls, windows and ceilings. Mr. Pena’s inventory was ruined, and the bulk of his equipment was unusable.
The damages to Mr. Pena’s business have exceeded $60,000 and, since the incident, he has been forced to work out of his garage, costing him more money in lost business.
Mr. Pena has attempted to get reimbursed for the damage but to no avail. According to Reason magazine, the U.S. Marshals Service referred him to the city of Los Angeles, which so far has done nothing. Previous court rulings have held that actions taken under the state’s legitimate “police powers” don’t fall under Fifth Amendment protections against government takings. Mr. Pena’s insurance carries a common disclaimer that it doesn’t cover such damage.
The U.S. Marshals Service “said they were ‘immune’ and couldn’t help me out,” Mr. Pena told a Los Angeles television station. “In fact, they even laughed in my face. They said, ‘If anything, we are very sorry for what happened to you.’ And so, here I am.”
Mr. Pena has now teamed with the Institute for Justice to seek restitution in federal court. His case is compelling.
“Takings are not supposed to be at all about whether or not the government was acting wrongfully,” said Jeffrey Redfern, an IJ attorney representing Mr. Pena. “It can be acting for the absolute best reasons in the world. It’s just about who should bear these public burdens. Is it some unlucky individual, or is it society as a whole?”
Indeed, if law enforcement destroys an individual’s property in pursuit of a desirable public goal, in this case the apprehension of a criminal suspect, what else is it but a “taking” that requires “just compensation” for the owner? This is not a radical theory, but a rightful and just reading of the Constitution — and it’s time the courts recognized that.
— Tribune News Service
