Taking Back the Takings Clause: The Case for Compensating Innocent Property Owners Caught in the Crossfire of Police Activity

Part I of this Note will provide an overview of the history of the Takings Clause, the role of the police power in takings jurisprudence, and the necessity exception to takings. Specifically, Part I will demonstrate that (1) the gravity of physical government intrusions has led the Supreme Court to consistently treat such intrusions as per se takings, (2) any distinction between eminent domain and the police power exists in the context of regulatory takings, and (3) the necessity exception rests on a shaky foundation as a common law tort doctrine. Part II will refute Lech’s conclusion that law enforcement destruction falls within a categorical police power exception to takings liability. Specifically, Part II will demonstrate that no categorical exception exists, and even assuming such an exception did exist, it has no place in a case involving physical destruction of an innocent owner’s property. Finally, Part III will explain how Baker’s alternative approach—the necessity exception—is similarly unconvincing, given its direct incongruity with the purpose of the Takings Clause and its basis in mass public emergencies like war, where destruction was inevitable, not small-scale emergencies like those in Lech and Baker, where destruction was avoidable. This abstract has been taken from the author's introduction.