Will the Supreme Court Reject Police Militarization?

The L.A.P.D. wrecked a business owner’s shop while chasing a fugitive and the city is refusing to compensate him. The next stop could be the Roberts Court.

Millions of Americans spent this summer trying to beat the scorching heat at the beach. Next month, the Supreme Court justices will also do some wading of their own: through the ocean of petitions for review that have accumulated over the last few months at the court’s annual long conference.

One of those pending petitions—a case involving police power, the Fifth Amendment, and a Los Angeles print shop—warrants a deep dive from the court. At issue is a particularly troubling vision of law enforcement’s role in American society by the Ninth Circuit Court of Appeals. Without the court’s intervention, it could have corrosive implications for American policing and its place in everyday life.

Pena v. City of Los Angeles began with the pursuit of an armed fugitive by law-enforcement officials in southern California in 2022. At one point, Carlos Pena heard noise outside his print shop. “He opened his door to investigate, and saw a man running towards him, pursued by United States Marshals with weapons drawn,” his lawyers told the justices in their petition for review. “The fugitive struck Pena on the shoulder, threw him out of the shop, and barricaded himself inside.”

During the ensuing standoff, the Marshals called for backup from the Los Angeles Police Department, which sent its SWAT team to take control of the scene. The SWAT team eventually used heavy amounts of tear gas and pepper spray in an attempt to force the fugitive out of the building. Thirteen hours later, after conducting a thorough search of the building and its attic, officers concluded that the fugitive had either “escaped or was ‘gone on arrival,’” according to a lower-court ruling, which appears to be a polite way to say that the LAPD may have spent half of a day gassing an empty building.

While both the fugitive and the police soon moved on, Pena did not. The consequences for the small business he had operated for thirteen years were immense. To access the building, officers had damaged the “walls, doors, roof, and windows” at multiple points, either to gain entry or deploy gas. The chemical munitions took their own toll. “In addition, the tear gas and pepper spray permeated the entire shop, which [Pena] claims caused additional damage to his shop, his printing equipment, and his inventory, and rendered his shop uninhabitable until [he] had it cleaned by a hazardous materials team,” the lower court recounted.

After the unexpected siege, Pena sought to rebuild his livelihood. He told the courts that his insurance company (unsurprisingly) refused to compensate him for the destruction inflicted upon his business. The police officers who caused the damage were “under the impression that the city would compensate Pena” when he spoke to them, he told the justices, but city officials “categorically refused to pay for the damage.”

In 2023, Pena sued the city in federal court, arguing that the intentional destruction of his property violated the Fifth Amendment’s Takings Clause. That clause states that “private property [shall not] be taken for public use,........

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