A Bull in a Print Shop: Must the Government Pay for Damage Caused by Its Legitimate Actions?

Adapted from the writings of Dayan Yitzhak Grossman

January 15, 2026

Reason Magazine reports:

In August of 2022, an armed fugitive threw Carlos Pena out of his North Hollywood printing shop and barricaded himself inside it. Over the course of 13 hours, a SWAT team with the LAPD launched more than 30 rounds of tear gas canisters through the walls, door, roof, and windows. After the standoff, police discovered the suspect had managed to escape. But Pena was left with a husk of what his store once was, the inside ravaged and equipment ruined, saddling him with over $60,000 in damage, according to his lawsuit against the city of Los Angeles.[1]

After losing that suit in federal district court, Pena took it to a panel of the Ninth Circuit Court of Appeals, which affirmed the lower court’s ruling. A majority of the panel held that “public necessity,” like getting a criminal off the streets, is an exception to the Fifth Amendment’s requirement that the government pay just compensation when it destroys someone’s property.

The panel held that the meaning of the Takings Clause at the Founding and two centuries of precedent demonstrate that the government’s destruction of private property when necessary for the defense of public safety is exempt from the scope of the Takings Clause. Because law enforcement took reasonable and necessary actions to ensure public safety in this case, their actions were beyond the scope of the Takings Clause. Accordingly, Pena failed to state a claim under the Takings Clause.

Concurring in the judgment, Judge Friedland wrote that although she agreed with the majority that Pena did not state a Takings Clause claim, she would reach that conclusion for a different reason. She would hold that the Los Angeles police’s actions fell under the search-and-arrest privilege that serves as a background limitation on all property rights, including Pena’s here, so no property right was infringed at all and, accordingly, no compensation was owed.[2]

Halacha has no equivalent to the Takings Clause. In this article, we consider other doctrines in halacha that may provide an exemption from liability for the destruction of property in this case.

The rescuer’s exemption

As we have previously discussed,[3] the Gemara sets forth the doctrine of the rescuer’s exemption: Someone who is attempting to rescue someone else from imminent danger to his life is exempt from liability for property damage:

And a pursuer who was chasing after another pursuer in order to save the latter’s intended victim, and he broke vessels—whether they belonged to the pursued individual (the would-be murderer) or to anyone else—he is exempt from payment. And this is not min hadin, but if you do not say so, no person will save another from a pursuer. (In order to encourage people to save the lives of others, Chazal instituted that one who damages property in the process of saving a life is exempt from payment.)[4]

It might be argued that this royalexemption would apply to the actions of the LAPD SWAT officers in our case, because an armed fugitive might be considered a danger to the general public. But the Gemara is discussing an actual rodeif, who poses a clear and imminent threat to someone’s life, and given that the fugitive in our case was not immediately threatening anyone’s life, it is far from clear that he would be considered a rodeif.

The royal prerogative (melech poreitz gadeir)

Chazal set forth a doctrine of royal prerogative. The Mishnah says:

And he (a king) may break through (a fence) to make a straight path for himself, and no one can protest against him.[5]

The Gemara lists various practical applications of this prerogative:

Rav Huna said: There were piles of barley belonging to Jews in which Plishtim were hiding, and Dovid Hamelech wanted to burn down the piles to kill the Plishtim and save his own life. He asked the Sanhedrin: May one save himself by destroying another’s property?

The Sanhedrin sent him this answer: It is prohibited to save oneself by destroying another’s property. But you are king, and a king may break through (a fence) to make a straight path for himself, and no one can protest against him.

The Rabanan, and some say it was Rabbah bar Mari, said: There were piles of barley belonging to Jews and piles of lentils belonging to Plishtim, and Dovid asked the Sanhedrin: Is it permitted to take the Jewish-owned piles of barley to place before animals on condition to repay later with the Plishti-owned piles of lentils? They sent him this answer: “The wicked person returns a pledge, pays for his theft” (Yechezkel 33:15), i.e., even though a person repays his theft, he is still considered a wicked person (for having stolen it in the first place). But you are king, and a king may break through (a fence) to make a straight path for himself, and no one can protest against him.[6]

The Lechem Mishneh discusses two fundamentally different understandings of this royal privilege. He notes that Rashi explains the words of the Mishnah “to make a straight path for himself” to mean a path to his field and to his vineyard,[7] which implies that the allowance extends even to the king’s personal needs. But the Rambam implies that it is limited to military needs:

The king may break through (a fence) to make a straight path for himself, and no one can protest against him. The king’s path has no limit; rather, it is according to what he needs. He need not bend his path because of this one’s vineyard or that one’s field; rather, he goes straight and conducts his war.[8]

The Lechem Mishneh notes that both applications of melech poreitz gadeir in the Gemara were in wartime, so the Rambam found no source to extend the entitlement to a king’s personal needs.[9]

The Me’iri echoes the Rambam’s language and explicitly qualifies that all the kingly rights enumerated in the Mishnah apply only in wartime.[10]

R’ Yehudah Zoldan suggests that even Rashi does not mean that the privilege extends to a king’s personal needs, and Rashi’s “to his field and to his vineyard” refers to where this serves a military need.[11]

The Remah (R’ Meir Halevi Abulafia) rejects Rashi’s understanding that a king may permanently seize private property for his own use. Instead, he limits the right to a temporary use of private property—though he clearly extends it beyond the military context:

Where he is going to a war of choice (milchemess reshus), or anywhere that he wishes, and he cannot pass because a wall stands in his way, we do not obligate him to go back and take a different route; since he is standing there, he may break through to make a path for himself…but these things are all only on a temporary basis, not to seize the actual property for himself for it to be a permanent path to his field or vineyard.[12]

The Gra, the Maharam Schick, and the Maharsham invoke melech poreitz gadeir as a basis for a governmental right of eminent domain,[13] which clearly implies that

They reject the view of the Remah that the principle is limited to the temporary use of private property.
They do not limit the principle to wartime (though they may still limit it to actions that serve the public interest rather than the private interest of the sovereign).

Can the prerogative of melech poreitz gadeir serve to exempt a government and its agents from liability for damage they cause in the course of enforcing the law and protecting public safety? There are at least a couple of reasons why it might not, though they are not conclusive:

While Rav Zoldan assumes that the prerogative applies to any national government,[14] he provides no proof of this, and Chazal and the other early sources we cited spoke only of kings, so it is unclear whether other forms of government are included. And regardless, the prerogative may not extend to local government and its law enforcement agents as in our case. On the other hand, the Maharam Schick and the Maharsham were discussing nineteenth-century Eurepean governments, and they seem to relate melech poreitz gadeir to dina demalchusa dina (“the law of the government is the law,” i.e., it is recognized by halacha), which may suggest that the privilege is not exclusive to kings.
While the Remah explicitly extends the principle beyond military needs; and Rashi, as understood by the Lechem Mishneh, extends it even to a king’s personal needs; and the Gra, the Maharam Schick, and the Maharsham apparently extend it at least to situations involving the public interest in general, the Rambam seems to limit it to the military, and it is unclear whether law enforcement and public safety should be considered its equivalent here.[15]

[1]Binion, Billy. L.A. Man Sued after Police Blew up His Business. Courts Say He Gets Nothing. Reason.com. reason.com/2025/12/29/innocent-man-sues-for-over-60000-after-police-blew-up-his-business-a-court-says-hes-entitled-to-nothing/.

[2]Summary of Pena v. City of Los Angeles, United States District Court of Appeals For the Ninth Circuit, No. 24-2422, D.C. No. 2:23-cv-05821-JFW-MAA.

For a libertarian critique of this decision, see Billy Binion ibid.

[3]Immunizing the Immunizers: Are Vaccine Manufacturers Liable for Vaccine Injuries? https://baishavaad.org/immunizing-the-immunizers-are-vaccine-manufacturers-liable-for-vaccine-injuries/.

[4]Bava Kama 117b.

[5]Mishnah Sanhedrin 2:4.

[6]Bava Kama 60b.

[7]Rashi Sanhedrin 20b. Rashi explains similarly in Yevamos 76b s.v. Shehamelech poreitz.

[8]Hilchos Melachim 5:3.

[9]Lechem Mishneh ibid. Cf. Be’er Miriam ibid.

[10]Me’iri Sanhedrin ibid.

[11]R’ Yehudah Zoldan, shiur 26: Hamelech Poreitz La’asos Lo Derech Ve’ein Memacheh Beyado (Sanhedrin 20b), Be’er Yehudah Sanhedrin p. 362.