By Robert Phillips  
Deputy District Attorney (ret.) 

Ever hear of the takings clause? You don’t see it come up too often. But when it does, it can really hurt.  

Take for instance the plight of one Carlos Pena, owner of a print shop in Los Angeles. On Aug. 3, 2022, an armed fugitive fleeing law enforcement officers entered Pena’s store, threw Pena out the front door, and barricaded himself inside. The shop was then surrounded by LAPD officers and deputy U.S. marshals. After a 13-hour standoff, in an attempt to subdue the fugitive, LAPD SWAT officers fired dozens of tear gas canisters through the walls, door, roof and windows of Pena’s store. The tear gas damaged the shop, as well as the inventory and equipment inside, to the tune of some $60,000. The parties did not dispute that the officers’ conduct was authorized, reasonable, and lawful under the circumstances.  

When the city of Los Angeles declined to cover Pena’s losses, he was forced to resort to filing a 42 U.S.C. § 1983 lawsuit in federal court. The district (trial) court granted the city’s motion for summary judgment, ruling that Pena was not to be compensated for his losses. The Ninth Circuit Court of Appeals affirmed, as reported in Pena v. City of Los Angeles 9th Cir. Nov. 4, 2025) F.4th (2025 U.S. App. LEXIS 28837). 

The court noted that the Fifth Amendment contains what has become ....