Although the U.S. Court of Appeals for the Sixth Circuit declined to publish its opinion in Ostipow v. Federspiel, No. 18-2448 (Aug. 18, 2020), we wish it had for a couple of reasons.

First, the name: it just rolls off the tongue, melodiously. “Ostipow versus Federspiel.” We just like how that sounds. Second, the facts: the Ostipows’ son set up a weed growing operation in his mom and dad’s farmhouse, unknown to them (bad son!). the local county Five-O seized the farmhouse and other Ostipow property by civil asset forfeiture (including a 1965 Chevy Nova, the philistines!), and after eight years in state court, in 2016, they finally won a judgment as innocent owners.

Not content with waiting for enforcement of the judgment, “[t]he next day [after the court entered the judgment against the county sheriff], the Ostipows made a written demand to Saginaw County Sheriff William Federspied to return and reassemble the non-forfeited property within 21 days.” Slip op. at 3. 

When the sheriff didn’t comply, the Ostipows filed a federal civil rights action in federal court, alleging (among other things) a taking. The district court “held that the civil asset forfeiture regime, which is quasi-criminal in nature, does not constitute a taking for public use and thus is not subject to the Fifth Amendment.” Slip op. at 4.

The Sixth Circuit (reluctantly) affirmed. This may look kind of like a taking, but it’s not a taking:

As the Ostipows first describe things, their claim has the feel of a taking.  The government came to their home, took their property, sold it, and have yet to compensate the Ostipows. But upon closer inspection, their claims do not quite match up with traditional Takings Clause jurisprudence. The Ostipows’ takings claim does not target the aspect of their story one might expect. They do not contest the scope of the government’s initial seizure of their property, the treatment of their property when it was seized, or even the government’s sale of that property during the forfeiture proceedings, which they concede occurred pursuant to a then-valid court order. Ostipow, 2018 WL 3428689, at *4. The Ostipows instead focus on the 2016 judgment, which declared their ownership over some of the seized property.  Characterizing those forfeiture proceedings as a “failure” that constitutes a “taking,” the Ostipows now seek their “just compensation.”  

….

Governments also seize property utilizing their police powers, which are criminal in nature. See, e.g., United States v. Droganes, 728 F.3d 580, 591 (6th Cir. 2013).  Indeed, it is well settled that a state’s seizing and retaining property as part of a criminal investigation is not a “taking” for a “public purpose” under the Fifth Amendment, and thus does not give rise to a claim for just compensation.  Bennis v. Michigan, 516 U.S. 442, 452–53 (1996); see also AmeriSource Corp. v. United States, 525 F.3d 1149, 1155 (Fed. Cir. 2008) (noting that “the character of the government action is the sole determining factor” as to whether a plaintiff may bring a compensable takings claim).  

Slip op. at 7-8. Not a big surprise here, we suppose. Many courts have gone down that analytical path, even though we think it is the wrong one. And the delay by the Sheriff in complying with the judgment isn’t enough to be a Fifth Amendment problem because “[o]ver a century ago, the Supreme Court held that the property rights created by a judgment against a government entity is not a right to payment at a particular time; it is instead a recognition of a continuing debt of that government entity.” Slip op. at 9. It is good to be the King. We say above that the Sixth Circuit “reluctantly” affirmed, because the court noted that this may be more of a due process problem than one of taking. 

On the whole, we wish this opinion would be published.

Ostipow v. Federspiel, No. 18-2448 (6th Cir. Aug. 18, 2020) (unpub.)