Cert Petition in AmeriSource: Government Destruction of Evidence Seized From Innocent Third Party A Taking?

A pharmaceutical company whose legal prescription drugs were seized as evidence against a third party by the federal government which then let the expiration date pass rendering the drugs worthless, has petitioned the U.S. Supreme Court to review the Federal Circuit's decision denying compensation.  Amerisource Corp. v. United States, No. 08-497 (petition for cert. filed Oct. 15, 2008).  The petition presents a single Question Presented:

Whether it is a taking compensable under the Fifth Amendment for the  Government to seize (and not return) an innocent third party’s property for use as evidence in a criminal prosecution, if the property is not itself contraband, is not the fruits of criminal activity, and has not been used in criminal activity.

The petition is posted here.

In Amerisource, the Federal Circuit held that when an innocent party's property is seized for use in a criminal prosecution but never used as evidence, no Fifth Amendment taking has occurred. Amerisource Corp. v. United States, 525 F.3d 1139 (Fed. Cir. 2008).  The court held that the seizure is an exercise of the government's "police power," and not an exercise of eminent domain, and agreed with the government's argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated.

Of course payment of compensation could impact criminal prosecutions.  Yet, this was just the type of situation the Takings Clause was meant to address, since it spreads the burden of the public benefit across the tax base.  Why is the uncompensated seizure of property for evidence from innocent parties any different than the unconstitutionality of denying compensation to a homeowner whose property is where the government wants to put a post office because to do otherwise would overly burden the government's ability to provide for public buildings?  After all, the just compensation requirement was “designed to bar 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.”  Armstrong v. United States, 364 U.S. 40, 49 (1960).

The petition asserts:

The decision of the court of appeals conflicts with the text of the Takings Clause, with the historical understanding at the time of its adoption, and with this Court’s interpretation of it. Although those sources unite in requiring compensation for physical seizures, the court below adopted a sweeping exception from the Clause for all actions justified under the police power – even physical seizures. That categorical exception ignores this Court’s regulatory takings jurisprudence and fundamentally misapprehends the relation between the Just Compensation requirement and the police
power.

Petition at 7.  We posted about the case here (includes link to Federal Circuit opinion), and about the petition for en banc review here.  The Supreme Court's docket listing is here.