[Volokh] Ilya Somin: The Takings Clause and Compensatio for Innocent Property Owners Who have their Possessions Seized During Criminal Investigations:

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Posted by Ilya Somin:
The Takings Clause and Compensatio for Innocent Property Owners Who have their Possessions Seized During Criminal Investigations:
http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209710775


   In his interesting post responding to my critique of the Federal
   Circuit's AmeriSource decision, Orin argues that the Takings Clause
   does not require compensation in these cases.

   Orin argues that "the argument that the Takings Clause applies is hard
   to make from an originalist perspective [because] Innocent third
   parties have long had their property rights interfered with in
   criminal investigations." There is a big difference between having
   your property "taken" (the term used in the Fifth Amendment) and
   merely having it "interfered with." A search of a house is not a
   taking. There is, however, a taking if the government kicks you out of
   your house and takes control of it - either permanently or for an
   extended period of time. To my knowledge there is no evidence that the
   framers and ratifiers of the Bill of Rights accepted the view that
   there is no taking in cases where the government actually seizes the
   property of innocent third parties during a criminal investigation, as
   opposed to merely "interferes" with it. I recognize, of course, that
   the line between taking and interference may sometimes be fuzzy. But
   that doesn't mean that there aren't cases that clearly fall on one
   side or the other. Taking someone's property and holding it for months
   (as happened in AmeriSource) is clearly a taking. Since I a more a
   textualist than an originalist, I think it highly significant that the
   text of the Fifth Amendment does not distinguish between the taking of
   private property for the "public use" of investigating crime and other
   kinds of takings. All require the payment of "just compensation."

   Orin also argues that "allowing such claims under the Takings Clause
   would be quite difficult to administer" because property rights of
   innocent people are so often "interfered with" during investigations.
   Part of this concern may be mitigated by the distinction between
   takings and interference discussed above. However, I don't deny that
   there will be at least some administrative problems. However, the
   government can mitigate these by establishing a system of
   administrative compensation that can, in most cases, obviate the need
   for litigation. As a practical matter, property owners are unlikely to
   sue for recovery of small losses because of the cost of litigation.
   That said, I don't deny that there will be some administrative costs.
   But that is an inevitable consequence of the enforcement of any
   constitutional right.

   That said, Orin and I might well agree on the issue of administration
   more than we disagree. Orin writes:

     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.

   I think that Orin is right on both of these counts. A statutory regime
   of compensation would be highly desirable and might well be enough to
   provide adequate compensation to property owners. However, it is
   unlikely that the government will have any incentive to enact such a
   scheme unless the judiciary starts enforcing the "just compensation"
   requirement of the Takings Clause in these cases. If Orin and I are
   right to believe that the administrative difficulties can be overcome
   by a statute, then judicial enforcement might help facilitate that
   happy outcome.

   Finally, Orin argues that my position - if adopted by the Court -
   would lead to a narrowing of the exclusionary rule. This aspect of the
   matter is beyond my expertise, so I can't comment on it intelligently.

   Unfortunately, I will be on the road most of tommorrow, so may not be
   able to continue this debate. However, I may return to it on Saturday
   if additional points occur to me at that time.