ABUSE OF POWER IN THE EXERCISE OF POLICE POWER AND THE CIVIL LIABILITY OF THE STATE IN BRAZILIAN ADMINISTRATIVE LAW

Abstract

This article examines the police power within Brazilian Administrative Law, emphasizing its constitutional foundations, legal limits, and implications for the State’s civil liability regime. The study begins with a conceptual and historical analysis of the institute, highlighting its evolution from the Police State to the Constitutional State, in which administrative action is subject to legality and the protection of fundamental rights. It then addresses the principles that condition the exercise of police power — such as legality, public purpose, proportionality, reasonableness, necessity, and adequacy — as well as situations of abuse of power, characterized by excess of authority and deviation of purpose. Subsequently, the article analyzes the development of State civil liability, culminating in the adoption of objective liability based on the theory of administrative risk, particularly in cases of unlawful or disproportionate police power. Finally, the study examines precedents from the Brazilian Supreme Federal Court and the Superior Court of Justice, demonstrating how higher courts have consolidated the understanding that abusive or excessive exercises of police power give rise to the duty to compensate, regardless of proof of fault by the public agent, thereby reinforcing the role of judicial review in the protection of fundamental rights.