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The Takings Clause and the Seizure of Innocent Parties' Property During Criminal Investigations:

Orin makes some interesting new points in his latest post in our debate. But I remain unpersuaded. To review, I argued that when the government seizes the property of innocent people during a criminal investigation (e.g. - to use as evidence), the government is required to pay compensation under the the Fifth Amendment's Takings Clause, which requires the payment of "just compensation" whenever "private property" is "taken for public use."

In his most recent post, Orin claims that my interpretation of the Takings Clause fails to take account of the Fourth Amendment, which protects homeowners against "unreasonable" searches and seizures:

From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects."

Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one.

To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not categorically forbidden; the Fourth Amendment says nothing about the rules governing those situations. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not. I don't know if this synergy was deliberately intended by the framers. But it is certainly a natural and logical interpretation of the text.

To recap, the Fourth Amendment protects us against unreasonable seizures by categorically banning them, but says nothing about what happens if the seizure isn't unreasonable. The Fifth Amendment, meanwhile, protects us against "reasonable" seizures that are severe enough to constitute a "taking" of property for "public use" by requiring the payment of compensation. That way, the government is allowed to take property for use in a criminal investigation when it is reasonable to do so. But it is not allowed to arbitrarily impose the cost on innocent property owners. As I noted in my very first post in this sequence, this is a classic example of one of the main purposes of the Takings Clause: "bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armonstrong v. United States (1960). It seems to me perfectly logical to have one Amendment that forbids "unreasonable" seizures, and another that protects people against uncompensated takings of property (including some types of "reasonable" seizures).

Orin also argues that "public use" implies "action," not just "the passive act of storing something away over time." Perhaps. But seizing property and keeping it away from its owner is certainly an action. So is the act of moving the items to a government-owned facility for storage and locking it up (which certainly doesn't seem "passive" to me). And going through the stored property in order to evaluate its potential usefulness as evidence is even more clearly an action that requires "using" that property. Moreover, even "passive" storage of an item for potential future use is plausibly interpretable as "using" it as well. For example, when I store away my second pair of glasses, I am "using" it as a backup for my primary pair. If I had seized that backup pair from the rightful owner, it would surely be a "taking" for "Ilya's use." If the government does the same thing, it's a "taking" of the glasses for "public use."There may be some cases where the government seizes property for a criminal investigation in such a way that it doesn't "use" it at all; but such situations are likely to be rare if they exist at all.

I do not mean to suggest that any government use of property in an investigation requires compensation. As I noted in an earlier post, many such uses do not infringe on property rights severely enough to constitute a "taking" of that property (e.g. - a search that does not require the government to seize the owner's property or take exclusive possession of it for any significant length of time).

Finally, Orin disputes my claim that the framers may have been unfamiliar with seizures of property owned by innocent third parties in the course of criminal investigations. He notes that they obviously did know about cases involving the forcible return of stolen goods that had found their way into the hands of innocent third parties. Orin himself suggests the logical response: "the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party."

To elaborate slightly on Orin's point: if the goods are stolen, the innocent third party is not the legitimate owner of those goods, and she or she isn't entitled to compensation under the Fifth Amendment because she didn't have any right to the goods in the first place. Orin also notes that even the original owner was not entitled to compensation for the time when the government had his property in its custody prior to returning it. But there is a clear difference between a case where a thief steals someone's property and the government then takes it back from the thief in order to return it to the rightful owner, and one where the government itself takes the property from an innocent person in order to use it for its own purposes. The former scenario is not a "taking" from the rightful owner (at least not by the government), and also doesn't involve any kind of "public use" of the property by the state.

Orin says that this commonsense distinction is inconsistent with this 1967 Warren Court decision. Possibly. I'm not sure if Orin means to endorse the Warren Court's reasoning or not. But either way, a case decided by the decidedly nonoriginalist Warren Court in the 1960s says very little of relevance to the original meaning of the Fourth and Fifth Amendments in 1791. It is particularly irrelevant to the Takings Clause, since the case in question does not seem to consider that clause at all.

As I noted in my previous post, my argument is primarily textual rather than originalist. I am not claiming that the Framers specifically envisioned the approach I advocate. I merely suggest that they did not intend to preclude it, and may not even have considered the specific point at issue, given that the problem it addresses was unlikely to be a common one in their time.

Dilan Esper (mail) (www):
Again, I can see Ilya's position, but only if one endorses a restrictive view of what a regulatory taking is (as current caselaw does), so you can define many seizures (as Ilya does) as not being sufficient deprivations to constitute a taking.

My understanding, however, is that most libertarians want the regulatory takings doctrine to be far broader than that, and to apply even to temporary deprivations of a particular productive use of property. And if the concept of a regulatory taking were broadened in that manner, Ilya's proposal would turn into an absolute mess because he would no longer to be able to draw a bright line between temporary and long-term seizures.
5.3.2008 2:13am
stunned:
(this comment not intended to take a normative position.)

I remain seriously unconvinced about this argument. Indeed, I think this is a prime example of what happens when you are a hammer: everything looks like a nail. No one could doubt your property rights bona fides after a post like this.

First, I think you need to be much more forthright about the original meaning/understanding shortcomings of your argument. If that's not your point, just abandon the argument altogether. (Also, I think the fact that "the problem it addresses was unlikely to be a common one in [the Framers'] time" cuts against any originalist argument you might make.)

Second, your textual analysis of "public use" is, frankly, pretty strained. The Supreme Court only recently told us what it means to "use" something in Watson v. United States, 128 S. Ct. 579. Discussing the use of a firearm, it notes that "[t]he Government may say that a person 'uses' a firearm simply by receiving it in a barter transaction, but no one else would." Id. at 583. I don't exactly understand your glasses analogy, but I'm going to cop the SC's attitude and assert that while you may say that the government "uses" seized material when it stores it in a warehouse, no one else would.
5.3.2008 2:49am
stunned:
In fact, when you say that seizing a backup pair of glasses should be considered a "'taking' for 'Ilya's use'" you're ignoring the critical implied term. It's actually a "taking" intended for "Ilya's use." If you end up wearing them, sure, they've been used. But if they just sit in your drawer, even if you look in and notice them and appreciate their being available to you, there has been no opportunity to put them to use.
5.3.2008 2:53am
Ilya Somin:
First, I think you need to be much more forthright about the original meaning/understanding shortcomings of your argument. If that's not your point, just abandon the argument altogether. (Also, I think the fact that "the problem it addresses was unlikely to be a common one in [the Framers'] time" cuts against any originalist argument you might make.)

The only originalist argument I have ever made in this whole line of posts is that there is no compelling originalist evidence against my position. The text of the Constitution applies to may problems (and probably was intended to apply to such) that were uncommon or even completely unknown in the Framers' day.

Second, your textual analysis of "public use" is, frankly, pretty strained. The Supreme Court only recently told us what it means to "use" something in Watson v. United States, 128 S. Ct. 579. Discussing the use of a firearm, it notes that "[t]he Government may say that a person 'uses' a firearm simply by receiving it in a barter transaction, but no one else would." Id. at 583.


This case, of course, has nothing to do with the Public Use Clause. In addition, there is an obvious difference between "receiving" an item, and such actions as taking it, storing it, and studying it for potential employment as evidence in a criminal investigation.
5.3.2008 3:57am
Ilya Somin:
My understanding, however, is that most libertarians want the regulatory takings doctrine to be far broader than that, and to apply even to temporary deprivations of a particular productive use of property. And if the concept of a regulatory taking were broadened in that manner, Ilya's proposal would turn into an absolute mess because he would no longer to be able to draw a bright line between temporary and long-term seizures.

I think that regulatory takings should be defined more broadly than in current doctrine. But I do not believe that any and all temporary deprivations of some part of the value of a property are takings or even close to it. As a practical matter, even a much broader definition of regulatory takings than in current doctrine wouldn't cause "an absolute mess" because most searches and seizures in criminal investigations inflict costs that are too minor to be worth the cost of litigation for the victims.Even if the Supreme Court were to hold that searching my house for 30 minutes is a taking (which, BTW, I don't think it should), it would not be worth the cost for me to litigate to get the tiny damages payment I would obtain if I won.
5.3.2008 4:00am
stunned:
"This case, of course, has nothing to do with the Public Use Clause."

Of course, but you're making a textual argument; that case involved a textual analysis of exactly the word in issue. I don't understand why it's irrelevant.

"In addition, there is an obvious difference between 'receiving' an item, and such actions as taking it, storing it, and studying it for potential employment as evidence in a criminal investigation."

Well obviously the taking itself is covered by the part of the clause referring to "takings." And, again, you might consider storing something as "use," but you'd be hard pressed to find anyone else who would.

I agree that if the item was studied it probably has been put to use. But, going back to your original example, if the government had a large amount of valuable drugs, they're probably only taking only a small amount of them to study. e.g., if you had 100,000 pills, you'd probably only do an analysis of a few of them.
5.3.2008 4:02pm
Dilan Esper (mail) (www):
Even if the Supreme Court were to hold that searching my house for 30 minutes is a taking (which, BTW, I don't think it should), it would not be worth the cost for me to litigate to get the tiny damages payment I would obtain if I won.

This is a seriously unsatisfying answer. Our modern Fourth Amendment jurisprudence sets out to lay down clear markers that officers can follow and, if they follow them, will protect them from an exclusionary sanction or a lawsuit. This is especially necessary given the ambiguity of constitutional text on the issue of search and seizure.

Saying "the person could sue, but it would not be economically viable" sounds like a very bad calculus to introduce into the system, especially since one reason that parties subjected to search might sue is to harass the police for conduct that may have resulted in a criminal prosecution.

You are asking police to make calculations about whether the person they are searching might sue, how much the defense would cost, and what the hassle factor would be and whether the search will be worth it. That just seems to me to be an awful idea.
5.4.2008 11:13pm