Ty Howard

Wayne Beckermann

How long can the government keep your property after lawfully seizing it? According to the U.S. Court of Appeals for the District of Columbia Circuit's decision in Asinor v. District of Columbia, the government can keep the property as long as the continued possession is still reasonable under the Fourth Amendment of the U.S. Constitution.

This Aug. 9 decision furthers a split among circuit courts and portends how the text, history and tradition method might influence Fourth Amendment cases.

Asinor v. District of Columbia

Asinor v. District of Columbia involved several consolidated appeals raising the question above.

The facts were straightforward: After arresting and releasing the plaintiffs without charges, the Metropolitan Police Department in Washington, D.C., refused to return their personal property, including cell phones, for months or years.

The arrests and initial property seizures were reasonable under the Fourth Amendment. The only dispute was whether the district's retention of personal property also had to be reasonable.

As the D.C. Circuit articulated, if the Fourth Amendment "speaks only to ... the initial moment of seizure," then the district would prevail. But if the Fourth Amendment applies to "the entire period during which the property has been seized," the plaintiff-appellants would win.

Ultimately, the Asinor court unanimously held that "[w]hen the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable."

The Court's Method: Text, History and Tradition

To reach its holding, the court first addressed the Fourth Amendment's "bare text," which it determined did not definitively answer whether the reasonableness requirement applied beyond initial property seizures.

When text runs out, "the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text," as stated in the U.S. Supreme Court's June 21 decision in U.S. v. Rahimi.

Applying this approach, the Asinor court explained that "the Fourth Amendment protects possessory interests against government infringement in the same way that Founding-era common law protected possessory interests against private infringement. And the common law authorized actions for damages and recovery of property that was lawfully taken, but then unlawfully possessed."

If a state had seized property, then the court might have considered an 1868 understanding of the Fourth Amendment to account for its incorporation.[1] But the Asinor court's conclusion arose solely from Sir William Blackstone's Commentaries on the Laws of England, which distilled preexisting rights secured by the Fourth Amendment.

In addition to history, recent Supreme Court doctrine considers tradition when interpreting at least certain constitutional provisions. According to the Rahimi decision, tradition includes "[p]ost-ratification interpretations and applications by government actors [that]—at least when reasonably consistent and longstanding—can be probative of the meaning of vague constitutional text."

The Rahimi court noted that part of considering tradition, however, also involves using text and history to (1) "broadly or narrowly [] read a precedent," (2) "extend, limit, or narrow a precedent," or (3) or "overrule a precedent."

Skipping over tradition from the post-ratification era, however, the Asinor court instead considered modern Fourth Amendment doctrine regarding seizure of property and persons.

Starting with property, the court latched on to a footnote from the U.S. Supreme Court's 1984 decision in U.S. v. Jacobsen that observed that seizure could become "unreasonable [if] its length unduly intruded upon constitutionally protected interests."

Though Jacobsen involved destruction of seized narcotics, the D.C. Circuit emphasized that many Asinor plaintiffs could not access their cell phones for about a year, which caused considerable inconvenience and financial harm.

Modern Fourth Amendment doctrine respecting seizure of individuals confirmed the reasonableness requirement for continued property deprivation. That is because "[w]hen a person is seized, the Fourth Amendment requires reasonableness not only at the moment of arrest, but also for the seizure's entire duration," the court wrote.

And the court saw "no textual, historical, or other reason to say that the Fourth Amendment protects against the government's prolonged seizure of persons but not its prolonged seizure of effects."

Wrapping up its analysis, the court refused to consider due process and takings clause arguments under the Fifth Amendment because (1) it preferred the Fourth Amendment's "'explicit textual source of constitutional protection against a particular sort of government behavior' to the more amorphous standards of 'substantive due process,'" and (2) it was "unclear whether the government's continued retention of lawfully seized property would constitute an unconstitutional taking."

A Circuit Split Expands

The Asinor decision creates a 5-2, or possibly 5-3, circuit split. As noted in U.S. Circuit Judge Karen LeCraft Henderson's concurrence, the U.S. Courts of Appeals for the First, Second, Sixth, Seventh and Eleventh Circuits "have held in precedential opinions that the Fourth Amendment does not support a claim for the government's retention of legally seized property."[2]

On the other side of the ledger, the U.S. Court of Appeals for the Ninth Circuit, and possibly the U.S. Court of Appeals for the Fourth Circuit, agrees with the D.C. Circuit that the Fourth Amendment does apply a reasonableness standard to retained property.[3]

Judge Henderson, however, emphasized that the U.S. Courts of Appeals for the First, Second and Eleventh Circuits "gave the issue … short shrift," by not discussing "relevant Supreme Court precedent or competing definitions of 'seizure.'" She then took the U.S. Courts of Appeals for the Sixth and Seventh Circuits to task for "focus[ing] on the wrong Supreme Court precedent" by not considering U.S. v. Jacobson.

The Fourth Amendment and Text, History, and Tradition

Apart from the merits, Asinor reflects a trend among intermediate federal appellate courts regarding the "text, history, and tradition" method. That method arises out of Second Amendment jurisprudence, most recently in the Supreme Court's 2022 decision in New York State Rifle and Pistol Association Inc. v. Bruen.

It is an alternative to the familiar tiers-of-scrutiny approach that determines whether the government or state has violated rights secured by the federal Constitution. Under that interest-balancing method, courts weigh a party's injuries against the government or state's interests to assess whether the federal Constitution prohibits the challenged action.

By contrast, the text, history and tradition method forgoes interest-balancing in favor of an approach that focuses on objective, historical indicia.

As in Asinor, intermediate federal appellate courts have begun hewing to text, history and tradition when evaluating Fourth Amendment issues.

For example, in Mitchell v. Doherty, the Seventh Circuit in 2022 "consider[ed] the traditional interpretive tools: text, history, tradition, and guidance from caselaw" when "assessing the constitutionally required timing of a bail hearing under the Fourth Amendment."

In Mexican Gulf Fishing Co. v. U.S. Department of Commerce, the Fifth Circuit explained in 2023 that "[t]he legitimacy of any categorical exception to [the Fourth] Amendment rests … on the exception's accordance with constitutional text, history, and tradition—as interpreted and explained by our highest Court."

And in the Eleventh Circuit's 2021 decision in Crocker v. Beatty, U.S. Circuit Judge Kevin Newsom admonished "those looking for [the original meaning of "seizures"] … to attend closely to text, history, and tradition."

U.S. Circuit Judge Patrick Bumatay of the Ninth Circuit advocated for this same approach in dissent in 2022's Verdun v. City of San Diego.

Takeaways

Asinor furthers a deep split among federal courts over whether the Fourth Amendment requires the retention of seized property to be reasonable.

Property owners have the upper hand in the D.C., Ninth and possibly Fourth Circuits. But they face an uphill battle making post-seizure reasonableness challenges in the First, Second, Sixth, Seventh and Eleventh Circuits.

Asinor also reveals that the text, history and tradition methodology is trending in Fourth Amendment jurisprudence. While precedent will continue to bind, how courts interpret precedent may substantially change if they focus more closely on text, history and tradition. Only time will tell.

But criminal defendants and Fourth Amendment plaintiffs would be well advised to tailor their strategy and briefing to account for this ascendant approach. They ignore text, history and tradition at their peril.

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Ty E. Howard is a partner at Bradley Arant Boult Cummings LLP. He previously served as an assistant U.S. attorney in the white collar and economic crimes division of the U.S. Attorney's Office for the Middle District of Tennessee.

Wayne R. Beckermann is an associate at Bradley Arant.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen , 597 U.S. 1, 37–38 (2022)).

[2] See Denault v. Ahern , 857 F.3d 76, 84 (1st Cir. 2017); Shaul v. Cherry Valley-Springfield Cent. Sch. Dist. , 363 F.3d 177, 187 (2d Cir. 2004); Fox v. Van Oosterum , 176 F.3d 342, 351 (6th Cir. 1999); Lee v. City of Chicago , 330 F.3d 456, 466 (7th Cir. 2003); and Case v. Eslinger , 555 F.3d 1317, 1330 (11th Cir. 2009).

[3] See Brewster v. Beck , 859 F.3d 1194, 1196–98 (9th Cir. 2017); and Mom's Inc. v. Willman , 109 F. App'x 629, 637 (4th Cir. 2004) (unpublished).