Reply Brief In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?

Thanks to Columbia lawprof Ronald Mann for forwarding his reply brief in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008). Responding to the arguments in the federal government's brief in opposition, the reply argues:

The Government's brief in opposition to the petition underscores the need for review by this Court. It declines to defend the reasoning of the court below. It offers a new rationale that is neither consistent with the reasoning of the lower court nor defensible on its own terms. Finally, despite the Government's efforts to minimize the importance of the decision, it remains undisputed that the decision below grants the Federal Government a blank check to confiscate tangible property without any duty of compensation, from the only court in which such actions can be challenged.

Brief at 1. In AmeriSource, 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, sought compensation. The Federal Circuit held that the seizure as evidence was not a taking for public use because the seizure was an exercise of the government's "police power," and not an exercise of eminent domain. This conclusion added little to the analysis because the Supreme Court has held that the police power and the public use clause are "coterminous," Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984), and in order to seek compensation in the CFC, the property owner must concede the validity of the government action.  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 BIO took a different approach, arguing that the obligation to provide criminal evidence is a "background principle" inherent in the ownership of property, and thus not compensable. The federal government apparently abandoned its arguments made in the CFC and the Federal Circuit, conceding that yes, even exercises of the police power can result in a taking. 

The petition will be considered by the Court at it's March 20, 2009 conference.