Los Angeles Shop Owner, Others National – Through No Fault of Their Own – at Mercy of Police Damages during Pursuits of Criminals

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By The Vanguard

LOS ANGELES, CA – After a fugitive pushed owner Carlos Pena from his shop and barricaded himself inside last year, a SWAT team from the City of Los Angeles fired more than 30 rounds of tear gas canisters inside, leaving Pena’s shop in ruin, with inventory unusable—but Carlos was left with the bill and without a livelihood, according to a story in Yahoo News and Reason.Com.

An immigrant from El Salvador, Pena said he didn’t fault the city for attempting to subdue an allegedly dangerous person. But he objected to what came next, said the news accounts.

“The government refused his requests for compensation, strapping him with expenses that exceed $60,000 and a situation that has cost him tens of thousands of dollars in revenue, as he has been resigned to working at a much-reduced capacity out of his garage,” according to a lawsuit he filed this month in the U.S. District Court for the Central District of California.

“Apprehending a dangerous fugitive is in the public interest,” the suit notes. “The cost of apprehending such fugitives should be borne by the public, and not by an unlucky and entirely innocent property owner.”

Yahoo News said, “Pena is not the first such property owner to see his life destroyed and be left picking up the pieces. Insurance policies often have disclaimers that they do not cover damage caused by the government. But governments sometimes refuse to pay for such repairs, buttressed by jurisprudence from various federal courts which have ruled that actions taken under ‘police powers ‘are not subject to the Takings Clause of the Fifth Amendment.”

The Lech family in Greenwood Village, Colorado, after “cops destroyed their residence while in pursuit of a suspected shoplifter, unrelated to the family, who forced himself inside their house,” found their $580,000 home was rendered unlivable and had to be demolished— “the government gave them a cool $5,000,” said Yahoo.

But, added Yahoo News, “Leo Lech’s claim made no headway in federal court,” with the court ruling, “The defendants’ law-enforcement actions fell within the scope of the police power…actions taken pursuant to the police power do not constitute takings.” 

Yahoo News and Reason.com said, “Lech was fortunate enough to get $345,000 from his insurance, which, between the loss of the home, the cost of rebuilding, and the government’s refusal to contribute significantly, left him $390,000 in the hole. In June 2020, the Supreme Court declined to hear the case.”

“In a similar position was Vicki Baker, whose home in McKinney, Texas, was ravaged in 2020 after a SWAT team drove a BearCat armored vehicle through her front door, used explosives on the entrance to the garage, smashed the windows, and filled the home with tear gas to coax out a kidnapper who’d entered the home,” said news accounts.

“As in Pena’s case, Baker never disputed that the police had a vested interest in trying to keep the community safe. But she struggled to understand why they left her holding the bag financially as she had to  confront a dilapidated home, a slew of ruined personal belongings, and a dog that went deaf and blind in the mayhem,” Yahoo News writes.

“I’ve lost everything,” Baker, who is in her late 70s, told Reason.com. “I’ve lost my chance to sell my house. I’ve lost my chance to retire without fear of how I’m going to make my regular bills.”

In November 2021, against the city’s protestations, a federal judge allowed her case to proceed. And in June of last year, a jury finally awarded her $59,656.59, although the court’s rulings did not create a precedent in favor of future victims, said Reason.com.

Attorney Jeffrey Redfern, an attorney at the Institute for Justice, the public interest law firm representing Pena in his suit, said the police-power shield invoked by some courts is a historical “misunderstanding.”

Judges, he said, have recently held that so long as the overall action taken by the government was justifiable—trying to capture a fugitive, for example—then the victim is not entitled to compensation under the Fifth Amendment. 

“Takings are not supposed to be at all about whether or not the government was acting wrongfully,” he said to reporters. “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?” 

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