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The Takings Clause and Criminal Investigations:
Ilya raises some truly fascinating questions below in his post on whether the Takings Clause should require compensation for losses suffered by innocent individuals in the course of searches and seizures permitted in criminal investigations. I wanted to add some thoughts from a different perspective.

  First, I would think that allowing such claims under the Takings Clause would be quite difficult to administer. Innocent third parties have their property interests interfered with in criminal investigations all the time; a single seizure justified by a warrant could implicate the property rights of dozens of different people or more. If each seizure can trigger takings claims, the administrative and litigation costs of resolving these claims would quickly become prohibitive. I recognize that some might like this result. But I would guess that no one confirmable as a Supreme Court Justice would agree, making it unlikely that the Supreme Court would adopt such a rule.

  Second, I would think the argument that the Takings Clause applies is hard to make from an originalist perspective. Innocent third parties have long had their property rights interfered with in criminal investigations; houses get searched, property gets seized. But I'm not aware of any argument based on the original public meaning of the Takings Clause that the clause was deigned to address collateral damage in criminal investigations. My sense is that at the time of the Framing, such questions were understood as Fourth Amendment issues, not Fifth Amendment issues. Given that, I think the argument would have to be based on language from recent precedents, not original meaning.

  Finally, if the Supreme Court did recognize such claims under the Takings Clause, there is a good chance that they would also rearrange not-insignificant chunks of criminal procedure law to adjust to the shift. Ilya argues that Takings compensation would be a good thing in criminal investigations so the government internalizes costs of investigations. But most of criminal procedure law has been created to try to deter police investigations using the exclusionary rule. A dramatic expansion in civil liability would likely lead to a cut-back in the scope of the exclusionary rule. Whether that's good or bad may be a matter of opinion, but I think it's worth noting that the idea could have consequences far beyond the Takings clause.

  Just to be clear, I'm not defending the status quo as a matter of policy. I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable. But I think there are some difficulties reaching that result through the Takings Clause. In any event, it's a very interesting set of issues -- thanks to Ilya for raising them.
Fearless:
I think Orin's points make one thing clear.

Opportunistic rhetoric aside, Somin is no originalist. He see's the Constitution as a tool to maximize his libertarian ideology.

I think that Orin's is obviously right about searches and seizures. There is no even slightly plausible originalist argument that they are takings. That Somin advocates such an idea is all the proof that any pro-originalist rhetoric from Somin is opportunistic rather than principled.
5.2.2008 3:32am
Chris 24601 (mail) (www):
"A dramatic expansion in civil liability would likely lead to a cut-back in the scope of the exclusionary rule."

Feature, not a bug!
5.2.2008 10:16am
NI:

Opportunistic rhetoric aside, Somin is no originalist. He see's the Constitution as a tool to maximize his libertarian ideology.


Properly understood I think the Constitution compels libertarianism. Liberty and the pursuit of happiness are fundamental rights.
5.2.2008 10:29am
RipExclusionaryRule:
The exclusionary rule is dead. So that's not a fair rationale for rejecting the takings argument or some statutory mechanism outright
5.2.2008 10:55am
DaSarge (mail):
Will someone please explain to me why a constitutional right is no longer a constitutional right because it is "difficult to administer?" That is irrelevent, in my view.

Moreover, it is not that hard. The gov't has vast experience "administering" other property rights, e.g., planning commissions, workmen's comp, etc. Most states, like mine (WA) already have a well oiled process for adjudicating takings issues.

If one uses the "plain language" rule, as courts do for every other text, the clause means just what it says. The clause is intended to cost the gov't money. Just because it does cost money in fact does not attenuate the right.

Finally, like anyone else, the gov't is very cavalier with other people's property when the gov't knows the gov't does not pay. If the gov't must pay gov't money, then the gov't might choose to be careful. Paying people for injury to property in a criminal investigation is a cost of doing business. The investigation is furthering the people's business and the people should shoulder the cost collectively.
5.2.2008 10:55am
Elliot123 (mail):
" First, I would think that allowing such claims under the Takings Clause would be quite difficult to administer."

We seem to be able to administer the tax code. Is it simpler than potential claims under the Takings Clause? Does the fact that the tax code is so difficult to administer argue against it being constitutional?

This extends into many areas of Federal involvement. Have you ever been involved in dealing with these people? Complex administration and administrative burdens have never been an impediment to the government folks. That's what they do.
5.2.2008 12:13pm
GV:
Orin, why would the Fourth Amendment, as it was understood at the framing, govern situations in which an innocent third party had property destroyed during a search or seizure? Wouldn't the individual who caused the damage be liable for trespass? Why would someone, who damaged an innocent person's property, even be considered a government actor, since they would have, by definition, exceeded their authority?
5.2.2008 12:43pm
OrinKerr:
Orin, why would the Fourth Amendment, as it was understood at the framing, govern situations in which an innocent third party had property destroyed during a search or seizure?

Because the 4a regulates searches and seizures.

Wouldn't the individual who caused the damage be liable for trespass

Not if the government had a valid warrant; that's what the 4th was all about.

Why would someone, who damaged an innocent person's property, even be considered a government actor, since they would have, by definition, exceeded their authority?

If the government had a valid warrant, that was the defense to a trespass action.
5.2.2008 1:16pm
Chris 24601 (mail) (www):
The exclusionary rule isn't dead yet. For one random sample, see here.
5.2.2008 2:24pm