In a case that was probably doomed from the start because of an earlier precedential ruling, the Federal Circuit concluded that the government's temporary seizure of the plaintiff's computer "for review" at a border stop and the subsequent destruction of the computer hard drive and resulting loss of data was not a taking because the seizure was an exercise of the government's power to control the border.
We've been down the road of Kam-Almaz v. United States, No. 2011-5059 (June 30, 2012) before, in AmeriSource, for example, where the government seized the plaintiff's property as evidence in order to prosecute a third party, and by the time the government returned the property to its owner, it was worthless. In Kam-Almaz, the ICE agents took the laptop because Kam-Almaz was a "person of interest," promising to return it shortly. However, during the time ICE had it, the hard drive failed. On the hard drive were Kam-Almaz's business files, which were irretrievably gone. He sued for breach of contract and for a taking.
The Federal Circuit held that a seizure for "law enforcement purposes" implicated only the "character of the government action" prong of the Penn Central test, and because ICE has the power to enforce the border, the seizure could not be a taking:
As we have noted, "[a]lthough the precise contours of the principle are difficult to discern, it is clear that the police power en-compasses the government’s ability to seize and retain property to be used as evidence in a criminal prosecution." AmeriSource, 525 F.3d at 1153.
Slip op. at 14. As we've noted before, this rationale does indeed lack "precise contours" because it makes little analytical sense, even if it might make for the right result. Saying that a seizure isn't an inverse condemnation because it was not an exercise of eminent domain power gets you nowhere because inverse condemnation is, by definition, a taking that results from an exercise of some power other than the power of eminent domain. We think there are other ways to approach this that do not do violence to that basic principle.
Here are the takeaways from the opinion:
- Back up your computer files. We all know this and we rarely do it, but here's an object lesson in mission-critical data: be redundant. If your laptop is the one place that you have this stuff, pain is eventually coming your way, whether its by government seizure, theft, or just plain bad luck.
- The courts still have not figured out how to reconcile the inverse condemnation theory (a justified exercise of some government power other than the power of eminent domain triggers the Fifth Amendment's requirement to pay compensation) with the idea that some seizures just don't seem like they should be compensable. The Federal Circuit, however, seems bound to the idea that if a seizure is under the police power, it can't be a taking (the Seventh, as noted above, is also in this camp). We're holding out for another circuit or two to see the light, and then for this issue to go up to the Supreme Court.
- It's tough to make out an implied contract claim with the federal government (the court also rejected Kam-Almaz's claim that a promise by the ICE agent to return his hard drive in seven days was an enforceable implied bailment contract).
Kam-Almaz v. United States, No. 2011-5059 (Fed. Cir. June 20, 2012)
