Los Angeles won't foot the bill for a retail store damaged by police who fired tear gas into the shop during a standoff with an armed fugitive, the Ninth Circuit ruled in a published opinion, saying "just compensation" isn't necessary because the assault was done to protect the public.

A three-judge panel Tuesday affirmed a California federal court's judgment that found the city's policy did not run afoul of the Fifth Amendment's Takings Clause when officers with the Los Angeles Police Department damaged a print shop owned by Carlos Pena. The majority opinion said its reasoning is based on the original and historical understanding of this clause. Specifically, that the government must pay fair compensation when it takes property for public use, but it isn't required to do so when the property is taken, or in this case damaged, for the purpose of protecting its subjects.

"As understood at the time of the founding, and as centuries of precedent confirm, when law enforcement officers destroy or damage private property in the necessary and reasonable defense of public safety, such destruction is exempt from the scope of the federal Takings Clause," the majority said.

U.S. Circuit Court Judge Michelle T. Friedland issued a dissent, agreeing with the outcome but disputing the reasoning. Judge Friedland said the examples the majority presents are specific to wartime, not to police power. She argued that Pena's suit could be tossed because the police's action fell within the "search-and-arrest privilege" the government holds and "thus within a 'pre-existing limitation' on Pena's property rights."

In a statement Tuesday, Jeffrey Redfern, a senior attorney at the libertarian-leaning nonprofit Institute for Justice, who represents Pena, promised to appeal to the full Ninth Circuit.

"Getting a dangerous criminal off the streets is a legitimate function of the government, but if it must destroy innocent people's property in that process, the innocent person [shouldn't] be left holding the bag," Redfern said.

According to the opinion, a fugitive running away from police entered Pena's Los Angeles print shop Aug. 3, 2022. The man forced Pena out and barricaded himself inside the shop. Los Angeles police then engaged in a 13-hour standoff with the man, ending with SWAT officers firing "dozens of tear gas canisters through the walls, door, roof and windows of Pena's store," the opinion said. This caused more than $60,000 in damage to the retail location, which Pena operated for more than three decades, the Institute for Justice said.

The fugitive escaped Pena's shop, ran into another location, initiated a second barricade and was later discovered with a "self-inflicted gunshot wound," the opinion said. Still and critically, both Pena and the city agree that the destruction of his shop was necessary.

Numerous appeals courts have taken various positions on whether all police action gets a "broad exception" from the U.S. Constitution's takings clause. But the Ninth Circuit specifically said it's "not necessary" to decide this.

"We hold only that no taking occurs for the purposes of the takings clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety," the majority said.

U.S. Circuit Judges Richard C. Tallman, Michelle T. Friedland and Mark J. Bennett sat on the panel for the Ninth Circuit.

Pena is represented by Jeffrey Redfern of the Institute for Justice.

Los Angeles is represented by Michael Martin Walsh of the Los Angeles City Attorney's Office.

The case is Pena v. City of Los Angeles, case number 24-2422, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Kristen Becker.