Eugene Frein v. Pennsylvania State Police ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-1830
_______________
EUGENE MICHAEL FREIN; DEBORAH FREIN,
Appellants
v.
PENNSYLVANIA STATE POLICE; PIKE COUNTY
DISTRICT ATTORNEY’S OFFICE; RAYMOND TONKIN;
JOHN/JANE DOE I–V
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:20-cv-00939)
District Judge: Honorable Malachy E. Mannion
_______________
Argued: March 23, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges
(Filed: August 30, 2022)
_______________
Curt M. Parkins [ARGUED]
COMERFORD LAW
538 Spruce Street, Suite 430
Scranton, PA 18503
Counsel for Appellants
Sean A. Kirkpatrick [ARGUED]
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Counsel for Pennsylvania State Police
David J. MacMain [ARGUED]
MACMAIN CONNELL & LEINHAUSER
433 West Market Street, Suite 200
West Chester, PA 19382
Counsel for District Attorney Pike County & Raymond J.
Tonkin
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Although police may seize potential evidence using a war-
rant, they may not keep it forever. Yet they did that here. After
a man assassinated a Pennsylvania State Trooper and injured
another, troopers seized his parents’ guns. The government
never used the guns as evidence. And eight years after the
crime, once the son lost his last direct appeal, the officers still
refused to return them—even though the officers do not claim
that the parents or the guns were involved in the crime.
2
Because the parents were never compensated, they have a
takings claim. And because they lawfully owned the guns, they
have a Second Amendment claim too. But since they had a real
chance to challenge the government’s keeping the guns, they
got procedural due process. So we will affirm in part, reverse
in part, vacate in part, and remand.
I. BACKGROUND
Eric Matthew Frein is on death row for cold-blooded mur-
der. In 2014, he ambushed two Pennsylvania State Troopers,
killing one and injuring the other. For a while, he evaded cap-
ture. 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.
Eventually, the long arm of the law caught Frein. He was
arrested, tried, convicted, and sentenced to death. His convic-
tion was affirmed on direct appeal and certiorari was denied.
But throughout that long process, the government never used
the guns it had seized from the parents—not at trial, at sentenc-
ing, or on appeal. Plus, it never arrested or charged the parents
and never alleged that any of their guns was involved in the
crime. So the parents went to Pennsylvania state court and
asked to get their guns back, raising Second Amendment,
3
takings, due-process, excessive-fines, and state-law objections.
In a one-sentence order, their motion was denied.
The parents now sue the state police, its officers, the Pike
County District Attorney, and its prosecutors under 42 U.S.C.
§ 1983. 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 re-
claim their property violated procedural due process.
In response, the officials concede that they never used the
guns at trial or on appeal. They claim that they might need the
guns as evidence if Frein’s state habeas (technically, PCRA) or
federal habeas petition yields a new trial, but can only specu-
late about how they might use them. And they stress that they
seized the guns under a valid search warrant. The District Court
agreed and dismissed their suit for failure to state a claim.
Now the parents appeal. We review de novo. Vorchheimer
v. Phila. Owners Ass’n, 903 F.3d 100, 105 (3d Cir. 2018).
II. BY KEEPING THE PARENTS’ GUNS AFTER THE CRIMI-
NAL CASE ENDED, THE OFFICIALS TOOK THEIR PROPERTY
FOR PUBLIC USE WITHOUT COMPENSATING THEM
Start with the Fifth Amendment claim. The parents
correctly charge the government with taking their “private
property … for public use, without just compensation.” U.S.
Const. amend. V. They challenge not the searching officers’
4
initial seizure under a warrant, but the state police’s continued
retention of the guns once the criminal case ended.
A. The parents have stated a takings claim
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 gov-
ernment’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 com-
pensation for a taking. Compare Pa. R. Crim. P. 588 (authoriz-
ing 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 Do-
main Code … is the exclusive remedy for a de facto taking”).
5
Next, the government says Bennis v. Michigan forecloses
this claim. Bennis held that the government need not compen-
sate the owner when it has “lawfully acquired” property in re-
liance 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’ tak-
ings claim.
B. The warrant does not immunize officials who keep
property this long
The officials have one last card to play: they seized the par-
ents’ property under a judicial warrant. See Warden, 387 U.S.
at 301–02 (letting police seize evidence under search war-
rants). The seizure, the parents agree, was valid. And warrants
can shield officials from liability.
6
But not for this long. Though valid warrants immunize of-
ficers who stay within their scope, they are not blank checks.
See Bruce v. Rawlins, 95 Eng. Rep. 934 (KB 1770) (letting of-
ficers be sued for trespass when a search under a writ of assis-
tance turned up nothing); see also Thomas Y. Davies, Recov-
ering the Original Fourth Amendment, 98 Mich. L. Rev. 547,
586–89 (1999) (noting that trespass liability for valid yet un-
successful search warrants was “an aspect of common law …
well known at the time of the framing”). But cf. Fabio Arcila,
Jr., The Death of Suspicion, 51 Wm. & Mary L. Rev. 1275,
1284 & nn.15–16 (2010) (noting a debate over how much im-
munity warrants and writs of assistance conferred). They are a
limited exception to the rule against taking private property.
And that exception applies narrowly. At the Founding, war-
rants authorized taking property tied to a particular crime or
wrong—hence the Fourth Amendment’s requirement of prob-
able cause. So warrants had to “particularly” identify the
“things to be seized,” and those “things” had to be tied to the
crime for which there was probable cause. U.S. Const. amend.
IV; see Davies at 601, 651–52. And though officers could also
take evidence not listed in the warrant, it still needed to be “ma-
terial as evidence on the charge made against the prisoner.”
Rex v. Barnett, 172 Eng. Rep. 563, 564 (CP 1829) (emphasis
added); see also Crozier v. Cundey, 108 Eng. Rep. 439, 439
(KB 1827) (letting officers seize items not mentioned in the
warrant only if those items were “likely to furnish evidence of
the identity of the articles stolen and mentioned in the war-
rant”). If officers exceeded these limits, they would be liable.
Thus, at the Founding, warrants immunized officers from tres-
pass suits only for seizing evidence tied to a particular charge.
7
Because the point of seizing evidence is to use it in a crim-
inal proceeding, the government may hang onto it through that
proceeding. See, e.g., Kensington Dist. N. Liberties, Pa., Act
of Mar. 28, 1787, 2 Smith 401, § XII (letting the government
keep seized gunpowder until a court decided whether it was
lawfully possessed). And at the Founding, that proceeding
would have ended by the time the conviction was final, not af-
ter the prisoner had exhausted collateral review. Indeed, collat-
eral review was historically a civil remedy treated as a matter
of legislative grace, not an integral part of the criminal process.
See, e.g., Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202, 209
(1830) (Marshall, C.J.) (holding that the writ of habeas corpus
“excepts from those who are entitled to its benefit … persons
convicted” by “a court of competent jurisdiction”); see also
Brown v. Davenport, 142 S. Ct. 1510, 1520–21 (2022) (tracing
the history of “permissive,” not “mandatory,” grants of habeas
power to courts).
Thus, the warrant immunizes the officers who first seized
the guns. But after the conviction became final, the warrant’s
justification ran out. “It is well settled that the government is
permitted to seize evidence for use in investigation and trial,
but that such property must be returned once criminal proceed-
ings have concluded, unless it is contraband or subject to for-
feiture.” United States v. Chambers, 192 F.3d 374, 376 (3d Cir.
1999); accord United States v. Francis, 646 F.2d 251, 262 (6th
Cir. 1981).
If the government wants to keep the property after the con-
viction becomes final, it needs some justification. That is why
it may keep contraband, property that is illegal to own. It may
8
also keep the proceeds of the crime or the instrumentalities
used to commit it. See 21 U.S.C. § 853; Kaley v. United States,
571 U.S. 320, 323 (2014). But it may do that only after going
through one of two processes. First, it may use criminal forfei-
ture to get the proceeds or instrumentalities as “an element of
the sentence imposed following conviction.” Libretti v. United
States, 516 U.S. 29, 38–39 (1995) (second word of emphasis
added). In other words, it must first prove the owner’s guilt at
trial. United States v. Sandini, 816 F.2d 869, 873 (3d Cir.
1987).
Or the government may use civil forfeiture to take the prop-
erty even without convicting the owner. See United States v.
U.S. Currency in the Amount of $145,139.00, 18 F.3d 73, 75
(2d Cir. 1994). But even then, the government must have at
least probable cause to link the property to the crime. See, e.g.,
United States v. $10,700.00, 258 F.3d 215, 222 (3d Cir. 2001)
(analyzing 19 U.S.C. § 1615).
The parents’ guns fall into none of these categories. The
police have never said the guns are contraband. Nor have they
tried to forfeit them. A new warrant or other proof of continued
compliance with the Fourth Amendment could justify retention
for collateral review, say, or a new investigation or prosecu-
tion. But the government offers no such justification. When we
asked the district attorney’s lawyer if there would be probable
cause to seize the guns today, he conceded, “I would think not.”
Oral Arg. Tr. 41:18–42:11. Because the government has not
compensated the parents for the guns either, their takings claim
may proceed.
9
We need not decide when, after the criminal case, this lia-
bility accrues and whether the plaintiff must first demand re-
turn of the property and be refused.
III. BY HOLDING ON TO THE PARENTS’ GUNS AFTER THE
CRIMINAL CASE ENDED, THE OFFICIALS INFRINGED
THEIR RIGHT TO KEEP ARMS
The Second Amendment guarantees “the right of the people
to keep and bear Arms.” According to the parents, the officials
validly seized their guns under a warrant, but violated that right
by refusing to return them. To decide that claim, we ask
whether the constitutional text and “this Nation’s historical tra-
dition” permit holding on to the guns. N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022) (abrogating
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010),
which set forth our previous framework for evaluating Second
Amendment challenges). They do not. We hold that unless an
exception applies, the Second Amendment protects a person’s
right to keep his lawfully owned guns.
A. The Second Amendment’s text protects a person’s
right to keep his own guns for self-defense
Start with the constitutional text: “keep … Arms.” The Sec-
ond Amendment secures an individual right to “have weapons”
on hand. District of Columbia v. Heller, 554 U.S. 570, 582, 592
(2008) (defining “keep”). So aside from a few exceptions, the
government may not prevent citizens from buying and owning
guns. Id. at 628–29.
Nor may it barge into a home, seize guns, and keep them
beyond the scope of a warrant or other authorized seizure. By
10
protecting the “keep[ing of] … Arms,” the Second Amendment
ensures that the People may “retain” their firearms “in [their]
custody.” Keep (defs. 1 & 2), Samuel Johnson, A Dictionary of
the English Language (1755); see also Keep (defs. 1 & 2),
Noah Webster, American Dictionary of the English Language
(1828) (“[t]o hold; to retain in one’s power or possession”).
The government may not “infringe[ ]”on this right. U.S.
Const. amend. II. That guarantee, of course, forbids “de-
stroy[ing]” the right by banning gun ownership. Infringe
(def. 2), Samuel Johnson, A Dictionary of the English Lan-
guage (1755). But it also forbids lesser “violat[ions]” that “hin-
der” a person’s ability to hold on to his guns. Id. (defs. 1 & 2);
accord Infringe (defs. 2 & 3), Noah Webster, American Dic-
tionary of the English Language (1828). Indeed, the Supreme
Court recently instructed us to closely scrutinize all gun re-
strictions for a historically grounded justification. Bruen, 142
S. Ct. at 2131–33.
That approach makes sense. With other constitutional
rights, we scrutinize not only total bans but also lesser re-
strictions and burdens. Thus, we may be skeptical of public-
health rules that cap how many people may physically attend
church, even if the rules do not ban them from worshipping.
See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct.
63, 68 (2020). Or an execution protocol that lets a chaplain into
the execution chamber but stops him from praying out loud.
See Ramirez v. Collier, 142 S. Ct. 1264, 1274 (2022). Or a law
that criminalizes flag burning without regulating spoken or
written words. See Texas v. Johnson, 491 U.S. 397, 402–03,
419–20 (1989). Even if the government has not entirely
11
prevented citizens from speaking or worshipping, its burdens
on speech and worship may violate the First Amendment.
Likewise, the Second Amendment prevents the government
from hindering citizens’ ability to “keep” their guns. Here, re-
taining the parents’ “entire collection of guns” hinders their
ability to hold on to it. Oral Arg. Tr. 27:18–19. So the govern-
ment “infringed” on the parents’ right to “keep” their arms
when it began holding on to the guns indefinitely. The seizure
under a valid warrant immunized the government for the dura-
tion of the criminal case. But now that the case is over, the
government must either get another warrant or return the
property.
B. History confirms the parents’ Second Amendment
right to get their guns back
The history bears this out. The ratifiers of both the Second
Amendment and the Fourteenth Amendment (which secures
the right in the states) understood that arbitrary seizures pre-
vent citizens from keeping arms for their self-defense. Cf.
McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorpo-
rating the right to keep arms against the states).
The seeds of the Second Amendment were planted centu-
ries ago in England, when King Charles II authorized his offic-
ers “to search for and seize all Armes in the custody or posses-
sion of any person” whom they considered dangerous. An Act
for ordering the Forces in the several Counties of this King-
dom, 13 & 14 Car. II, c.3, § XIII (1662); see also Stephen P.
Halbrook, That Every Man Be Armed 43, 210 n.40 (1984) (not-
ing that a 1670 ban on commoners’ owning guns and bows was
12
used “to justify breaking and entering houses to search for
arms”); Joyce Lee Malcolm, To Keep and Bear Arms 23–53
(1994) (discussing various seventeenth-century seizures).
After Charles II was deposed, the English Bill of Rights
guaranteed the right of Protestants to “have arms for their de-
fence suitable to their conditions, and as allowed by law.” Bill
of Rights, 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441
(1689); see Malcolm, To Keep and Bear Arms 115–21 (sum-
marizing parliamentary debates).
Like Englishmen, colonial Americans feared arbitrary gun
seizures. In 1774, with tensions rising, the Crown “instituted a
general policy of searching places [in the Boston area] for arms
and seizing them.” Stephen P. Halbrook, Encroachments of the
Crown on the Liberty of the Subject: Pre-Revolutionary Ori-
gins of the Second Amendment, 15 U. Dayton L. Rev. 91, 105
(1989). The Crown’s efforts to search and disarm colonists
continued over the next two years. Indeed, “[t]he British at-
tempt to seize or destroy the arms and ammunition at Lexing-
ton triggered the” Revolutionary War. Halbrook, That Every
Man Be Armed 62.
Plus, the Fourteenth Amendment’s ratifiers understood that
it would stop gun seizures. Before the Civil War, black people
had been denied citizenship and, with it, the right “to keep and
carry arms.” Dred Scott v. Sandford, 60 U.S. 393, 417 (1857).
Though Dred Scott fell with the Confederacy, Southerners kept
seizing the freedmen’s guns. Heller, 554 U.S. at 615. In Mis-
sissippi, white militias “seized every gun and pistol found in
the hands of the (so called) freedmen,” insisting that state law
did not recognize their right to arms. Halbrook, That Every
13
Man Be Armed 117 (quoting a Harper’s Weekly column); ac-
cord McDonald, 561 U.S. at 772. So too in South Carolina,
where a former federal official reported similar seizures to
Congress. H.R. Rep. No. 39-30, pt. 2, at 229 (1866), quoted in
David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 BYU L. Rev. 1359, 1447–48. As one senator
put it, “the greatest outrages are perpetrated by armed men who
go up and down the country searching houses, disarming peo-
ple, committing outrages of every kind and description.” Cong.
Globe, 39th Cong., 1st Sess. 915 (1866), quoted in McDonald,
561 U.S. at 772.
In response, the federal government took pains to explain
to freedmen that “no military or civil officer ha[d] the right or
authority to disarm” them. Stephen P. Halbrook, Freedmen, the
Fourteenth Amendment, and the Right to Bear Arms, 1866–
1876, at 19 (1998) (quoting a Freedmen’s Bureau circular).
Against this backdrop, Congress passed the Freedmen’s
Bureau Act of 1866 and the Civil Rights Act of 1871 to protect
all citizens’ constitutional rights, including the right to arms.
Id. The Fourteenth Amendment was designed to secure that
right as well. McDonald, 561 U.S. at 772–76.
C. The narrow historical exceptions do not justify
holding on to the guns
As this history shows, the government may not ordinarily
seize and hold on to weapons. There are few exceptions to that
rule, and none applies here.
For instance, the government may confiscate guns from
those who have been convicted of serious crimes or committed
14
dangerous acts. Binderup v. Att’y Gen., 836 F.3d 336, 349 (3d
Cir. 2016) (en banc) (plurality opinion), abrogated on other
grounds by Bruen; see Heller, 554 U.S. at 626–27 (dictum).
But the parents have neither been convicted of any crime nor
committed any dangerous act.
The government may also seize and forfeit guns used to
commit a crime. But that does not help the government here
either. It first seized the parents’ guns under a warrant. But that
warrant was tied to the son’s trial; as explained, its immunity
ran out by the time the parents sued. And the government has
not gotten and cannot get another warrant because it admits that
there is no probable cause. So the parents had the right to keep
the guns that they had lawfully bought and still lawfully
owned. When the government took the parents’ guns and re-
fused to return them, it burdened that right.
Pushing back, the government cites other authority suggest-
ing that seizures do not burden Second Amendment rights as
long as citizens can “retain[ ] or acquir[e] other firearms.”
Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011); see also
Houston v. City of New Orleans, 675 F.3d 441, 445 (5th Cir.),
vacated, 682 F.3d 361 (5th Cir. 2012); Sutterfield v. City of
Milwaukee, 751 F.3d 542, 571–72 (7th Cir. 2014); John L.
Schwab & Thomas G. Sprankling, Houston, We Have a Prob-
lem: Does the Second Amendment Create a Property Right to
a Specific Firearm?, 112 Colum. L. Rev. Sidebar 158 (2012).
The government notes that the Takings and Due Process
Clauses more clearly protect private property. Walters, 660
F.3d at 317; Schwab & Sprankling at 167–68. So, it suggests,
the Second Amendment provides “not a property-like right to
15
a specific firearm,” but just a general right to buy guns. Hou-
ston, 675 F.3d at 445.
We disagree. We would never say the police may seize and
keep printing presses so long as newspapers may replace them,
or that they may seize and keep synagogues so long as wor-
shippers may pray elsewhere. Just as those seizures and reten-
tions can violate the First Amendment, seizing and holding on
to guns can violate the Second. The Second Amendment may
let the government outlaw specific types of weapons—perhaps
“dangerous and unusual weapons.” Heller, 554 U.S. at 627(dicta); accord Bruen, 142 S. Ct. at 2143; Eugene Volokh, Im-
plementing the Right to Keep and Bear Arms for Self-Defense:
An Analytical Framework and a Research Agenda, 56 UCLA
L. Rev. 1443, 1548 (2009). But as we have explained, it does
forbid unjustifiable burdens on the right to “keep” one’s own
arms.
And that protection is not redundant of more property-fo-
cused protections. For instance, the Takings Clause allows sei-
zures so long as the government pays “just compensation.” But
the Second Amendment appears to forbid “disarm[ing] private
citizens” even if the government compensates those citizens
for their property. Cf. Heller, 554 U.S. at 591–92. The other
guarantees do not prevent this one from applying too.
IV. PENNSYLVANIA GAVE THE PARENTS DUE PROCESS
Finally, the parents claim that the government violated their
due process rights by holding on to their guns. They insist that
they were entitled to process before the deprivation. And they
say the deprivation happened when the government held on to
16
their guns after the criminal case, not when it first seized them.
Thus, they claim that process was due after seizure but before
retention.
We disagree. True, we usually require that the government
give process before it deprives people of their property.
Zinermon v. Burch, 494 U.S. 113, 132 (1990). But if that is not
“feasibl[e],” it may give process after the deprivation. Id.The core of due process is an “opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks
omitted). The parents got that opportunity here: They sought
the return of their property under Pennsylvania Rule of Crimi-
nal Procedure 588, the state analogue to Federal Rule of Crim-
inal Procedure 41(g). Doing so entitled them to a hearing at
which they could introduce evidence. Pa. R. Crim. P. 588(B).
The hearing was conducted by a judge, and the parents had the
assistance of a lawyer. They could have appealed that judge’s
decision, but did not. See, e.g., Commonwealth v. Durham, 9
A.3d 641, 642 (Pa. Super. Ct. 2010).
This process was all that was due under Mathews. See 424
U.S. at 335. The parents’ Second Amendment right makes their
private interest substantial. But the extensive process mini-
mized the risk of erroneous deprivation. So Pennsylvania’s
scheme is “constitutionally adequate.” Zinermon, 494 U.S.
at 126.
The parents parry with two out-of-circuit cases, yet neither
saves their claim. One case rejected a post-deprivation replevin
suit as inadequate. But it did so because Missouri made the gun
17
owner sue in four counties. Lathon v. City of St. Louis, 242 F.3d
841, 844 (8th Cir. 2001). Pennsylvania, by contrast, lets own-
ers simply file a motion. Pa. R. Crim. P. 588. The other case
did hold that post-deprivation tort suits are generally inade-
quate. Walters, 660 F.3d at 313. But the Eighth Circuit has
since walked that case back. Mickelson v. Cnty. of Ramsey, 823
F.3d 918, 928–29 (8th Cir. 2016).
Because it was infeasible to give process before depriva-
tion, and because the process the parents got was robust, we
will affirm the District Court on this point.
V. THE PARENTS MAY NOT SEEK DAMAGES
AGAINST THE STATE POLICE
The Pennsylvania State Police is an arm of the Common-
wealth of Pennsylvania. So the parents may not sue the police
for money damages. Ex parte Young, 209 U.S. 123, 151
(1908). All they may seek is an injunction. See id. at 159; Oral
Arg. Tr. 3:25–4:12 (conceding the point).
In reaching this conclusion, we hold that states must specif-
ically authorize takings claims for compensation. True, Con-
gress has authorized takings suits against states. See Knick v.
Twp. of Scott, 139 S. Ct. 2162, 2168, 2176–77 (2019). But that
does not mean that plaintiffs may seek compensation. 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. Skate-
more, Inc. v. Whitmer, 40 F.4th 727, 734–35 (6th Cir. 2022);
Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th
Cir. 2019) (collecting cases). Pennsylvania’s Eminent Domain
18
Code opens its state courts to takings claims. Knick, 139 S. Ct.
at 2168. 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 re-
quiring the state to return their property.
*****
The police understandably seized the parents’ guns in 2014
while a killer was still at large. But he has long since been cap-
tured and convicted, and his conviction has been affirmed. The
judicial warrant does not authorize keeping the guns past this
point. The Constitution requires the officials who are holding
on to the guns to pay the parents just compensation and bars
them from keeping the guns indefinitely. So we will reverse
the District Court’s dismissal of the Takings and Second
Amendment claims. But because the parents got enough
process, we will affirm the dismissal of their procedural-due-
process claim.
19