United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
R. Zwart United States Magistrate Judge
before the court is Defendant's claim for money damages,
(Filing No. 50), and the United States' motion
to dismiss. (Filing No. 71). Defendant claims that
when he was arrested, his gold braided necklace was taken
from him during booking at the jail, it was later sold at
auction without his consent, and he is entitled to recover
money damages from the United States for this loss. The
United States moves to dismiss, arguing “Defendant has
been provided with monetary compensation by the Lincoln
Police Department in an amount equivalent to the amount of
money received by the Lincoln Police Department from the sale
of Defendant's necklace at auction.” (Filing
Gerrard referred Defendant's motion to the undersigned
magistrate judge for findings and a recommendation. An
evidentiary hearing was held on September 20, 2018. Defendant
participated by telephone with the assistance of the
court's interpreter. His court-appointed counsel was
present in the courtroom. In addition to Defendant, the court
received testimony from Pamela Fittje, manager of the
property unit of the Lincoln Police Department. Exhibits 1
through 19 were received into evidence without objection, and
at Plaintiff's unopposed request, the court took judicial
notice of all filings in Defendant's criminal case. At
the close of the hearing, the court requested post-hearing
briefing. All such briefing has been filed. The case is now
reasons explained below, I recommend that Defendant's
motion for compensation be denied.
September 11th of 2014, the defendant made two approximately
two-ounce deliveries of what was represented to be
methamphetamine to an undercover police officer.”
(Filing No. 27, at CM/ECF pp. 21-22). He was arrested on
September 14, 2014 and was booked into the Lancaster County
Jail at 3:39 a.m. on September 15, 2014. (Filing No. 55, at
CM/ECF p. 3).
time of his arrest, Defendant was wearing a gold necklace.
During booking at the jail, the necklace was removed from
Defendant's person, and a Lincoln police officer
delivered it to the property unit for the City of Lincoln,
Nebraska (“City”). The necklace was not held as
evidence of any crime.
federal indictment was filed against Defendant on September
16, 2014, with a federal arrest warrant issued that same day.
The federal warrant was executed on September 17, 2014.
(Filing No. 7). Defendant appeared at his initial
appearance in federal court on September 19, 2014. (Filing
No. 8). He was then federally detained pending trial on the
federal charges. (Filing No. 11).
September 22, 2014, the City began the process of returning
the personal property it received from Defendant during
booking, including the gold necklace at issue. The City has a
federal database to search for defendants serving a sentence
in a federal prison, but since Defendant was still awaiting
trial on the federal case, his name and custodial address did
not appear in that database. Therefore, the City sent a
letter to Defendant at his last known address regarding his
right to claim his property. This letter was returned
undeliverable on October 15, 2014. (Filing No. 55, at CM/ECF
the summer of 2015, Defendant's gold necklace remained
unclaimed, so the City posted it for sale by online auction.
The necklace was sold in July of 2015 for $1, 120.00. Of that
amount, after sale costs were paid, the City received
$569.34. (Filing No. 55, at CM/ECF pp. 5; 73-3; 73-4). The
$569.34 was deposited in the City's treasury.
summer of 2016, Defendant demanded return of his gold
necklace. Counsel for the United States sent emails to the
City to locate the necklace, but the necklace had been sold.
September 12, 2018, the City paid the net amount it received
for the necklace, $569.34, to Defendant. (Filing No.
73-2). Defendant believes additional compensation is
owed. Defendant received the necklace in 2011 as a gift. He
claims the necklace confiscated at booking was worth $5, 000
based on the price of similar necklaces he saw in a jewelry
store in late 2012, prices he saw in catalogs, and taking the
weight of the necklace (54 grams) times $100 per gram, the
price of gold in 2012 and 2013. Defendant presented no
evidence of the price of gold in September of 2014, when the
necklace was placed in the City's property unit, or
during the summer of 2015, when the necklace was sold.
Judge Gerrard's prior opinion, (Filing No. 60),
the sole issue before the undersigned magistrate judge is
whether Defendant is entitled to recovery from the United
States under the Takings Clause. The Fifth Amendment
prohibits the taking of “private property . . . for
public use, without just compensation.” U.S. Const.
amend. V, cl. 4. A party asserting a claim for compensation
under the Takings Clause bears the burden of proving he held