Posted on 07/29/2023 1:10:36 PM PDT by nickcarraway
Carlos Pena's livelihood has been crippled. It remains to be seen if he'll have any right to compensation.
It took Carlos Pena decades to build his local business after immigrating to North Hollywood, California, from El Salvador. It only took a few hours to destroy it.
While Pena is the one who created NoHo Printing & Graphics, where he fashioned commercial signs and banners, T-shirts, headshots, and other products, he is not the one who did the damage, despite the fact that he has been left with the bill and without a livelihood.
In early August of last year, after a fugitive violently thrust Pena from his shop and barricaded himself inside, a SWAT team from the City of Los Angeles fired more than 30 rounds of tear gas canisters over the course of 13 hours. When the government entered the building, the officers found their target had escaped. Left inside was a shop that was a shell of itself, with Pena's inventory ruined and the bulk of his equipment unusable.
Pena didn't fault the city for attempting to subdue an allegedly dangerous person. But he objected to what came next: 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."
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.
That's what happened to 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. The $580,000 home was rendered unlivable and had to be demolished; the government gave them a cool $5,000.
But Leo Lech's claim made no headway in federal court. "The defendants' law-enforcement actions fell within the scope of the police power," the U.S. Court of Appeals for the 10th Circuit ruled, "and actions taken pursuant to the police power do not constitute takings." 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. 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.
"I've lost everything," Baker, who is in her late 70s, told me in March 2021. "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.
The police-power shield invoked by some courts is a historical "misunderstanding," says Jeffrey Redfern, an attorney at the Institute for Justice, the public interest law firm representing Pena in his suit. Judges 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 says. "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?"
Federal law should correct this and give all citizens right to recourse and damages.
SWAT is always the worst. GI Joe juice monkeys getting their kicks.
It makes it more unsafe for the regular street patrolmen.
No Knocks should only be used in extreme/particular instances.
Waco could have been avoided by arresting Koresh when he went into town every week.
Instead, ATF wanted to GI Joe the compound and got smoked.
We’re from the government and we’re here to ......
Exactly !
It was the same at Ruby Ridge as well. Deliberately seeking a big shootout.
In other words, the government owns your property, you don’t. You just think you do. You get to pay the taxes, the mortgage and the upkeep but it isn’t yours.
They can always take it by Eminent Domain. So you are just the custodian.
“When the government entered the building, the officers found their target had escaped. “
The competence crisis, on top of the rest of it...
Did Mr. Pena call the government when the violent fugitive barricaded himself in his shop?
But yes, once you call the police or fire department to enter your property, all bets or off, and they can do more damage than the intruder or even fire.
> When the government entered the building, the officers found their target had escaped. <
So these cops were unnecessarily destructive AND incompetent. That’s a pretty bad combination.
But then again, SWAT got a chance to play commando for the day. So I guess it’s all good.
Private property rights need amending, and property taxes need to disappear.
Imagine owning a property outright for 4 decades, and one year of financial hardship negates it all.
Total crap.
Taxes in general need fixing.
Horizontal is banned?
But billions were paid out in fraudulent Covid money. Our government is seriously effed up.
I am no lawyer, but this seems like a government taking and should be covered under the Takings Clause. The government made the decision to destroy this man’s shop for its own interest - the pursuit of a fugitive. No opinion about the merits of that decision matters, only that they took it. They could have just waited him out (turns out he escaped anyway, making them look like keystone cops). But they chose to take the property and then proceeded to damage it for their interests. They are responsible for compensation under the Takings clause.
Even worse, I recall a case where thefather was suspected of killing one of his kids. Investigators tore the house to pieces, ripped up all carpets, sledgehammered walls, left everything overturned and broken...
then they caught the real killer but were not held liable for any damages. The house was a total loss in addition to the family not feeling like it was theirs any longer.
This happened to a family here locally. They literally destroyed the home looking for a fugitive that had decided to hide in the home’s crawl space. Access to that space is from the outside of the home. Broke out the home windows, threw smoke bombs that killed the family cat, the kids trying to tell them the perp was in the crawl space, the frantic father shoved into the backseat of a squad car….
It was horrific what they did and totally uncalled for.
They refused to listen, destroying the home before they even bothered to check the crawl space where everyone was saying the fugitive was.
Reno, are you sure you’re not a statist? It’s not the job of the federal government to heal all wounds. This is solely a state law issue. I truly regret that there’s no recourse for this fellow, but sovereign immunity can have harsh results
Janet Reno wanted to confirm that her boss, bill klintoon, was justified in making her the first female Attorney General.
30 rounds of tear gas and failed to do what a real sniper with one bullet should have done.
If the police do serious damage to your home during the course of their “normal government duties,” just burn it to the ground a few days after they leave. The insurance company will cover the entire cost of replacing it. When they ask about the police raid, just tell them the home was perfectly fine when the police left.
The joyous wonders of the communist tyranny under which we exist.
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