Ilya raises some truly fascinating questions below in his post on whether the Takings Clause should require compensation for losses suffered by innocent individuals in the course of searches and seizures permitted in criminal investigations. I wanted to add some thoughts from a different perspective.

  First, I would think that allowing such claims under the Takings Clause would be quite difficult to administer. Innocent third parties have their property interests interfered with in criminal investigations all the time; a single seizure justified by a warrant could implicate the property rights of dozens of different people or more. If each seizure can trigger takings claims, the administrative and litigation costs of resolving these claims would quickly become prohibitive. I recognize that some might like this result. But I would guess that no one confirmable as a Supreme Court Justice would agree, making it unlikely that the Supreme Court would adopt such a rule.

  Second, I would think the argument that the Takings Clause applies is hard to make from an originalist perspective. Innocent third parties have long had their property rights interfered with in criminal investigations; houses get searched, property gets seized. But I'm not aware of any argument based on the original public meaning of the Takings Clause that the clause was deigned to address collateral damage in criminal investigations. My sense is that at the time of the Framing, such questions were understood as Fourth Amendment issues, not Fifth Amendment issues. Given that, I think the argument would have to be based on language from recent precedents, not original meaning.

  Finally, if the Supreme Court did recognize such claims under the Takings Clause, there is a good chance that they would also rearrange not-insignificant chunks of criminal procedure law to adjust to the shift. Ilya argues that Takings compensation would be a good thing in criminal investigations so the government internalizes costs of investigations. But most of criminal procedure law has been created to try to deter police investigations using the exclusionary rule. A dramatic expansion in civil liability would likely lead to a cut-back in the scope of the exclusionary rule. Whether that's good or bad may be a matter of opinion, but I think it's worth noting that the idea could have consequences far beyond the Takings clause.

  Just to be clear, I'm not defending the status quo as a matter of policy. I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable. But I think there are some difficulties reaching that result through the Takings Clause. In any event, it's a very interesting set of issues -- thanks to Ilya for raising them.