William & Mary Bill of Rights Journal
Everyone Benefits, Everyone Pays: Does the Fifth Amendment Mandate Compensation When Property is Damaged During the Course of Police Activities?
The Fifth Amendment of the United States Constitution, along with similar provisions in state constitutions, forbids the taking of private property by the government for a public use without just compensation. Despite this protection, many courts have denied takings claims made by innocent third party landowners when police officers caused damage to their property during the course of executing their official duties. These courts held that the damage was not for a "public use" in the narrow sense, and have refused to analyze the claims under takings jurisprudence. This narrow view of "public use" ignores the fact that society as a whole benefits from the police activity, including any resulting damage to property, while the innocent, individual owner alone is forced to bear the burden. This Note argues that a broader interpretation of "public use" is required to redistribute justly and fairly the costs of such burdens to the society that benefits from them in order to comport with the mandate of the Fifth Amendment.