When Does an Emergency Police Power Constitute an Unconstitutional Taking of Property?

Robert F. Brown by victor@cixxfive.com


As will be explored in this paper, there are uses of the government’s police powers that take,damage or destroy property that are not compensable under the doctrine of eminent domain. Such uses may be compensable under tort law or other legal theories, but not as an exercise of the power of eminent domain. One category of such non-compensable actions is an exercise of a narrow set of governmental powers sometimes referred to as the “Doctrine of Necessity,” which allows the government to damage or destroy property in extraordinary circumstances without the payment of compensation as a taking. The “Doctrine of Necessity” is a defense that can be raised in response to a takings claim for property damage resulting from responses to emergency events such as natural disasters like wildfires and floods, and for police tactics that destroy or damage property toapprehend suspected criminals.

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