The ruling carries significant consequences for property owners when authorities damage belongings under the exercise of police power.
A striking state court decision last month revived a dispute over a business that had been prevented from pursuing redress after authorities are said to have damaged assets valued in the thousands. The Georgia case pitted a licensed hemp producer against law enforcement and upended established doctrine, adding another twist to the broader legal fight over how protected government actors are when wielding their police power.
In July 2021, Georgia’s Department of Public Safety allegedly devastated $37,000 worth of hemp crops by conducting low-altitude aerial operations with helicopters and a fixed-wing aircraft during a drug-suppression exercise. This was a blow to Blue 42 Organics, LLC, a licensed hemp grower that had properly registered with both the Georgia and U.S. Department of Agriculture.
Blue 42 filed suit, but the trial court dismissed the claim as premature. It concluded that the DPS was acting under its police powers, thereby precluding relief under the Just Compensation Clause of the Georgia Constitution, which provides that private property shall not be taken or damaged for public purposes without just and adequate compensation first being paid.
The language would seem fairly explicit. Yet the trial court’s decision, later sustained on appeal, forms part of a long-running line of jurisprudence that has categorically barred such claims and effectively shielded the government from owing just compensation when property is damaged via police power.
The Georgia Supreme Court broke with that tradition. In a unanimous ruling, the justices held that “the Constitution’s promise to protect private property rights would be empty if the State is allowed to avoid paying just compensation for taking or damaging private property merely by invoking the police power.” The court added that “nearly everything the State (and locally delegated governments) does—roads, policing operations, zoning—falls under this public-safety umbrella, and DPS provides no limiting principle.”
By that decision, the court overturned McCoy v. Sanders, a 1966 precedent in which police drained a landowner’s pond during a search for a murder victim and were deemed not obligated to compensate the owner because the action occurred under police power.
Six decades later, the high court in Georgia declared that such broad reasoning had gone too far. “The police power encompasses virtually every action the State may undertake,” the justices stated, “and such an expansive exemption as described in McCoy would effectively erase the Just Compensation Clause.”
Nonetheless, the court did not erase all exemptions. “There are two clearly defined categories in our case law—nuisance abatement and destruction of property in urgent-need scenarios—that have been described as exercises of police power exempt from the requirement of just compensation,” the justices wrote. Thus, for example, if the government destroys a building to halt a spreading fire, as in Bowditch v. Boston (1879), the owner would not be entitled to compensation.
Similar disputes have played out on the national stage as well. Amy Hadley’s Indiana home was ransacked by police following a flawed detective inquiry, while Carlos Pena’s California printing business was ravaged by a SWAT team as officers pursued a suspect barricaded inside. In both cases, compensation was denied under comparable legal reasoning, even though neither individual faced criminal charges. They have petitioned the U.S. Supreme Court.
The Supreme Court’s justices have previously declined to hear such petitions. “Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question,” Justice Sonia Sotomayor wrote in 2024, “that would benefit from further percolation in the lower courts prior to this Court’s intervention.” The remark, joined by Justice Neil Gorsuch, came in response to a petition from Vicki Baker, an innocent Texas woman whose home was blown up by law enforcement while they sought to coax out a suspect. She would later become one of the luckier plaintiffs, ultimately succeeding under the Texas Constitution just this year, six years after the raid occurred.
