Here’s the latest in an issue we’ve been on for a long time: whether government actions taken under the police power are categorically exempt from providing just compensation when those activities take or damage private property.
In Blue 42 Organics, LLC v. Georgia Dep’t of Public Safety, No. S25G1493 (Sep. 9, 2026), the Georgia Supreme Court held no, and that the State was not categorically immune from an inverse condemnation claim just because the government damaged the property in the course of an apparently valid exercise of the police power.
Whether it is what we call “SWAT takings,” or a government claiming it is immune because it was exercising the police power, or deploying the police power as the dispositive factor in the Penn Central “character” factor, the argument is the same: no liability for just compensation when the government is acting within the broad power to regulate and restrict to promote the public health, safety, welfare, and morals. Here’s a sampling of some of our posts strenuously objecting to that argument:
Wait, I Thought The Police Power and the Public Use Clause Were “Coterminous”
Cert Denied In Police Power Takings Case (Lech v. Greenwood Village)
The Blue 42 case came about after Georgia state police aircraft flew low enough to damage crops on Blue 42’s hemp farm, and Blue 42 sued in state court for inverse condemnation under Georgia’s constitution. The trial court dismissed the case and the court of appeals affirmed, concluding that the damage occurred in the course of a valid exercise of the State’s police power, which meant no inverse claim.
The Georgia Supreme Court disagreed. That court held that police power justifications may be exceptions to the usual rule to pay compensation, but situations involving extreme or “urgent public necessity” are “very narrow” and
that from our earliest days, this Court recognized that just compensation was generally required when the government destroyed property for public use and that there was a narrow exception to this general rule when government destroyed private property in extreme or urgent situations.
Slip op. at 8 (footnote omitted).
We recommend you read all of the “history and tradition” stuff the court lays out in this part of the opinion. Not only is it instructive, it is very interesting. There’s also some good stuff about the Georgia Constitution’s Just Compensation Clause that is worth repeating here:
From our earliest days, this Court recognized that the doctrine of just compensation was a part of Georgia foundational law because it was a part of the English common law that we adopted nearly 250 years ago. See, e.g., Parham, 9 Ga. at 349 (“It is not, therefore, necessary to go to the Federal Constitution for [the principle]. It came to us with the Common Law — it is part and parcel of our social polity — it is inherent in ours, as well as every other free government.
Slip op. at 5-6 (footnote omitted).
There’s also a section of the opinion devoted to describing the “police power.” Yes, it is a broad power, and “[h]istorically, legislative bodies have exercised police power in a wide range of contexts, including zoning restrictions, building standards, health regulations, nuisance abatement, and alcohol regulations.” Slip op. at 12. This “power is among the broadest of government powers.” Id.
But this broad power “is not limitless.” Slip op. at 13. It must be exercised within the bounds of the Georgia Constitution, and the police power does not permit the government to “invade the personal rights and liberty of the individual citizen by legislation which has no reasonable relation to a legitimate State purpose.” Slip op. at 14.
The Georgia Supreme Court has now joined others which hold the same. See, e.g., this case, this one, and this one.
While we like this decision, we also find it weird that we have to constantly relitigate a foundational 104 year old SCOTUS decision (remember that in Mahon, Justice Brandeis dissented on the basis there could be no takings liability because Pennsylvania’s Kohler Act was unquestionably an exercise of its police power).
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