Police Allegedly Destroyed $37,000 of Legal Hemp. Georgia's Supreme Court Just Upended 60 Years of Precedent.

A surprising state court decision last month breathed new life into a battle concerning a business that had been barred from even seeking compensation after law enforcement allegedly damaged property worth thousands of dollars. The case, which pitted a legal hemp grower against police in Georgia, overturned precedent in the state and is yet another twist in the legal debate over how insulated government is when exercising “police power.”

In July 2021, the Georgia Department of Public Safety (DPS) reportedly destroyed $37,000 worth of hemp crops by flying helicopters and a fixed-wing aircraft at low altitude during a “drug-suppression exercise.” That was bad news for Blue 42 Organics, LLC, a licensed hemp grower that properly registered with both the Georgia and U.S. Departments of Agriculture.

When Blue 42 sued, the trial court said the claim was dead on arrival. The state’s DPS had been exercising its police powers, it said, and the company was thus precluded from redress under the Just Compensation Clause of the Georgia Constitution, which promises that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”

The fine print would seem pretty clear. But the ruling from the trial court, which was originally upheld on appeal, is part of a long line of jurisprudence that had categorically barred such claims and effectively immunized government from providing just compensation to people whose property was damaged via police power.

The Georgia Supreme Court departed from this tradition. “The Constitution’s promise to protect private property rights would be an empty one if the State is permitted to avoid paying just compensation for taking or damaging private property merely by invoking the police power,” the justices held unanimously. “Almost everything that the State (and local governments by delegation) does is, in theory, for the public’s safety, health, and morals, including constructing roads, conducting law enforcement operations, and passing zoning ordinances. DPS offers no limiting principle.”

In doing so, the court overturned McCoy v. Sanders, a 1966 case that saw police drain a landowner’s pond while searching for the body of a murder victim. The government did need not to compensate the owner for the ensuing damage, the decision concluded, because it occurred in the exercise of police power.

Sixty years later, the state’s high court said that general line of thinking had gone too far. “The police power includes virtually everything the State can do,” the justices wrote, “and such a broad exemption as articulated by McCoy — just compensation is precluded when state agents act under the police or governmental power — would effectively sweep away the Just Compensation Clause.”

On the flip side, the court did not sweep away the entirety of the exemption. “There are two identified categories clearly delineated in our case law — abatement of nuisances and destruction of property in cases of urgent necessity — that have been described as an exercise of police power exempt from the requirement of just compensation,” the justices wrote. So, for instance, if the government destroys a building to stop a fire from spreading, as was the case in Bowditch v. Boston (1879), the owner is not entitled to compensation.

Similar claims have also been playing out on the national stage. Amy Hadley’s Indiana home was ransacked by police after a detective’s shoddy investigation led them there, while Carlos Pena’s California printing business was ravaged by a SWAT team as officers sought to capture a suspect who had barricaded himself inside. Both were denied compensation under similar legal reasoning, despite the fact that neither was suspected of a crime. They have appealed to the U.S. Supreme Court.

The justices on the country’s highest court have previously declined to hear petitions on the subject. “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,” wrote Justice Sonia Sotomayor in 2024, “that would benefit from further percolation in the lower courts prior to this Court’s intervention.” That statement, which was joined by Justice Neil Gorsuch, came in response to a petition from Vicki Baker, an innocent Texas woman whose house was blown up by law enforcement as they also attempted to coax out a suspect. She would go on to be one of the luckier ones, ultimately succeeding under the Texas Constitution just this year, six years after the raid occurred.

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