Police Destroyed Innocent People's Property—and Left Them With the Bill. Will the Supreme Court Step In?

The Fifth Amendment's Takings Clause promises "just compensation" when private property is taken for public use. But some courts have ruled that it does not always apply when police are involved.

2022 was a big year for both Carlos Pena and Amy Hadley. Separated by several states, SWAT teams left their properties in ruins while attempting to capture two suspects. In August, officers threw dozens of tear gas canisters into Pena's Los Angeles printing business; two months prior, law enforcement had done the same to Hadley's Indiana home before also destroying security cameras, punching holes in the walls, and ransacking the house.

Neither was suspected of a crime. They were, to put it mildly, unlucky. Which raises an unfortunate question: What is an innocent person owed when police wreck their property?

The Supreme Court will once again decide if it will address that question and offer legal clarity in a debate that has seen governments refuse to reimburse people when their property becomes major collateral damage in a law enforcement operation.

The circumstances leading up to Pena and Hadley's property damage differ slightly. A SWAT team from the city of Los Angeles blew up Pena's shop, NoHo Printing & Graphics, after a suspect ejected Pena from the business and barricaded himself inside while attempting to evade capture. (Police would later find that the man had escaped.) Over in Indiana, law enforcement arrived at Hadley's house after an officer posited that a suspect was accessing the internet from her IP address, which wasn't true.

The basic end result, however, was the same. Local government officials ignored their pleas for help and declined to compensate them for mutilating their respective properties, despite the fact that no party disputes their innocence. Pena has sued for over $60,000, alleging the raid destroyed his shop and the equipment inside, forcing him to relocate to a garage with one printer and a reduced capacity that has cost him significant revenue, according to his lawsuit. Hadley, meanwhile, says she incurred about $16,000 in losses to her home, which insurance only partially covered. That it helped at all is not the norm. Pena's insurance denied assistance, as most policies stipulate that they are not liable for government-induced damage.

Common sense may dictate that innocent people should not have to individually shoulder the financial burden of public safety (or, in Hadley's case, a flawed police investigation). Yet both were denied relief because of how the property met its demise.

Is that constitutional? The Fifth Amendment's Takings Clause promises "just compensation" when private property is taken for public use. But some courts have ruled that it does not always apply when police are involved.

The courts are not in agreement on what exactly the exception is or how far it goes. The U.S. Court of Appeals for the 9th Circuit said that Pena could not sue for damages because "law enforcement officers destroy[ed]" his shop "while acting reasonably in the necessary defense of public safety." In other words, the judges declined to say if a categorical "police power" exception applies in such cases; that law enforcement acted reasonably and out of necessity was enough to kill his claim.

The U.S. Court of Appeals for the 7th Circuit, however, did find a categorical exemption. "The Fifth Amendment does not require the state to compensate for property damage resulting from police executing a lawful search warrant," wrote Judge Joshua Kolar, rejecting Hadley's claim.

Pena and Hadley are not the first to experience this, nor are they the first to ask the high court to resolve the issue. "Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court's intervention," wrote Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, as the justices declined to hear a case from a Texas woman whose home was destroyed by law enforcement after a fugitive barricaded himself inside the house.

There has been more percolation, in the form of Pena and Hadley's cases. And yet there is still no consensus. "Lower courts disagree about whether the Takings Clause applies to: exercises of the police power, actions privileged by 'public necessity,' or actions privileged as lawful searches or arrests," reads Pena's petition to the Court. "As a result, Americans are losing their homes and businesses, through no fault of their own, without compensation and without the ability to protect themselves via insurance, which almost always excludes damage done by the government."

Nuances aside, these rulings do share a core idea: that the government should be off the hook for damages it causes innocent people, so long as that damage is sustained while carrying out a vital societal function or during a necessary act. But that logic buckles under the nature of the Takings Clause itself. When officials seize property via eminent domain, they are, in theory, doing so because it necessarily benefits the community. One would argue that pursuing dangerous criminals helps society just as much as a railroad.