POLICE POWERS

The term "police power" refers to the right of a government to exercise "reasonable control over persons and property" to protect the public's health and safety. Police powers are rooted in English common law, extending back at least four centuries. While police departments took their name from these powers, police departments, with their focus on crime, were not widely used until the nineteenth century. Police powers are closely related to the state's power to protect itself from outside forces. The authority derives from the notion of societal self-defense.

Police power is best understood in contrast with the parens patria power: the power to protect individuals for their own benefit. Confining dangerous mentally ill individuals to protect the public is a police power, while confining individuals for their own protection is a parens patria power. The state's authority to restrict individual liberty is much greater when it is done to protect the public. Thus, the state has considerable power to prevent the spread of tuberculosis, but not to force a person to take medication for hypertension.

Police power allows the destruction or restriction of property that poses a threat to the public, without paying compensation. It also includes the right to act without a court hearing or other due process protections, when necessary, to protect the public's health. Aggrieved persons can contest such actions through habeas corpus proceedings and other post-restriction proceedings. Some states have limited their police powers by legislation and state constitutional provisions.

Edward P. Richards

(see also: Licensing; Public Health and the Law; Quarantine; Regulatory Authority )

Bibliography

Richards, E. P. (1989). "The Jurisprudence of Prevention: Society's Right of Self-Defense Against Dangerous Individuals." Hastings Constitutional Law Quarterly 16:329.

Richards, E. P., and Rathbun, K. C. (1999). "The Role of the Police Power in Twenty-First Century Public Health." Journal of Sexually Transmitted Diseases 26(6):350–357.