When Disaster Strikes: Assessing the Takings Clause in the Context of Government-Caused Property Destruction

In rare but dire emergencies, the government must destroy the property of innocent homeowners to prevent further harm to a community. Although the law often forgives such destruction to protect the public good, courts have inadequately resolved how to compensate innocent property owners for their losses. This Comment unpacks how doctrine has split among circuit courts regarding whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. As a resolution to this circuit split, this Comment proposes that courts should adopt a multi-factor test, utilizing the Fourth Circuit’s analysis as a starting point. Applying the themes and practices of Takings jurisprudence, this Comment ultimately argues that courts should weigh the foreseeability of the invasion, the severity of the interference, the nature of the land, and the owner’s investment-back expectations about the land’s use.