The facts are pretty straightforward in the U.S. Court of Appeals' opinion in Frein v. Pennsylvania State Police, No. 21-1830 (Aug. 30, 2022):
Eric Matthew Frein is on death row for cold-blooded murder. In 2014, he ambushed two Pennsylvania State Troopers, killing one and injuring the other. For a while, he evaded capture. Police knew he had used a .308-caliber rifle. So they got a warrant to search the home that he shared with his parents and seize that type of rifle and ammunition.When they executed the warrant, state police did not find a .308-caliber rifle. Instead, they found forty-six guns belonging to the parents: twenty-five rifles, nineteen pistols, and two shotguns. None was a .308. Even so, the officers got a second warrant and seized them all.
Slip op. at 3.
The police eventually got their man, and Frein was tried and convicted. His appeals (including discretionary review) were unsuccessful. And the guns seized from the parents were never used by the government in its prosecution. Indeed, there was not even any allegations that their guns were relevant to their son's crimes.
They gave 'em back, right? No. So the parents asked the Pennsylvania courts to order the police to return the guns, "raising Second Amendment, takings, due-process, excessive-fines, and state-law objections." Slip op. at 3-4. Denied, "[i]n a one-sentence order[.]" Slip op. at 3.
Next stop, federal court and a section 1983 action against the state police, several officers, and other prosecutorial officials:
The parents do not challenge the seizure under the Fourth Amendment. But they say that by keeping the guns after the criminal case ended, the government is violating two other parts of the Constitution: the Fifth Amendment’s Takings Clause and the Second Amendment’s right to “keep … Arms.” Plus, they argue that the state’s procedure for letting them reclaim their property violated procedural due process.
Slip op. at 4. We didn't use the guns as evidence, but we might be keeping them in case Frein seeks habeas relief. And besides, we seized the guns pursuant to a valid search warrant, so what's the problem? The district court agreed and dismissed for failure to state a claim.
The Third Circuit reversed. The parents didn't challenge the initial seizure, but "the state police's continued retention of the guns once the criminal case ended." Slip op. at 5.
The takings part of the opinion is not all that long. And there's a lot of good stuff there. So rather than summarize it, we're going to reproduce it in full. Or you can just read the opinion:
The Fifth Amendment’s text supports the parents. After all, their guns are “private property.” And they were “taken” by the officials. Plus, the parents have never gotten a dime, let alone “just compensation.” Id.Finally, the officials pressed the property into “public use.” Id. The parents’ property was seized by public officials (police) to help public prosecutors enforce state law at a public trial. So their claim checks all the Fifth Amendment boxes.The officials counter that because the parents have tried to get their guns back in state court, they are collaterally estopped from using a takings claim to try again. Not so. The state court’s order would preclude this takings claim only if the state court had decided an “identical” issue. Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 351 (3d Cir. 2014). But that one-sentence order said nothing about takings or the government’s need to keep the evidence for a possible retrial; it gave no reasoning at all. Nor could claim preclusion have barred this claim, even if the officials had raised it, because Rule 588 motions are the wrong vehicle for seeking just compensation for a taking. Compare Pa. R. Crim. P. 588 (authorizing only “the return of the property”), with Dep’t of Transp. v. A & R Dev. Co., 2020 WL 1130855, at *6 (Pa. Commw. Ct. Mar. 9, 2020) (explaining that Pennsylvania’s “Eminent Domain Code … is the exclusive remedy for a de facto taking”).Next, the government says Bennis v. Michigan forecloses this claim. Bennis held that the government need not compensate the owner when it has “lawfully acquired” property in reliance on its police powers, rather than “eminent domain.” 516 U.S. 442, 452 (1996). No one doubts that the government seized the guns under its literal police powers. And because it had a valid warrant, it says it lawfully acquired the guns too.
But Bennis applies only when the government gains title to the property. There, formal ownership of the property had been “transferred by virtue of [a forfeiture] proceeding from [the owner] to the State.” Id. Here, by contrast, the government has never “lawfully acquired” title to the guns; they still belong to the parents. See Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (confirming that a taking happens “when[ever] the government physically takes possession of property without acquiring title to it”). Plus, the guns are not forfeitable as contraband, instrumentalities, or proceeds of a crime. They are, at most, potential evidence, and police do not gain title to “mere evidence.” Warden v. Hayden, 387 U.S. 294, 306 n.11 (1967). So Bennis is no obstacle to the parents’ takings claim.
Slip op. at 5-6.
And what about that warrant ... doesn't that immunize the police from liability? No, the court concluded, the warrants "are not blank checks." Slip op. at 7. Check out pages 7 through 10 for the details.
There's a lot more to the opinion (concluding, for example, that the keeping of the guns violated the parents' right to "keep" arms under the Second Amendment, and a rejection of the procedural due process claim). If that kind of thing is your thing, please do read the balance of the opinion.
One more takings piece of interest, right there at the tail end of the opinion. The court concluded that the Eleventh Amendment bars a damages remedy against the state police, and that includes a claim for just compensation. Slip op. at 18 ("That is because the Takings Clause, as incorporated against the states, did not alter the states’ traditional immunity from federal suits, at least if state courts remain open to hear these claims."). And here, Pennsylvania's courts are open to consider compensation claims. Thus, the parents' takings claims can only result in an injunction. Id. ("Unless Pennsylvania decides that it prefers to pay damages to compensate owners for takings, federal plaintiffs like the parents may get only a declaration and injunction requiring the state to return their property.").
Frein v. Pennsylvania State Police, No. 21-1830 (3d Cir. Aug. 30, 2022)
