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Torts – FTCA — detained-goods exception

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2014//

Torts – FTCA — detained-goods exception

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Torts – FTCA — detained-goods exception

Where the goods seized by the government were later declared unlawful, the owner is not entitled to compensation for the seizure.

“But Smoke Shop’s theory is unpersuasive. First, though it invokes 21 U.S.C. § 881 to support its argument that the seizure was ‘for the purpose of forfeiture’ under 28 U.S.C. § 2680(c)(1), Smoke Shop does not realize that § 881 would seem to wholly undermine its case that it meets the condition set out in § 2680(c)(2): that ‘the interest of the claimant was not forfeited.’ Putting aside the parties’ disagreement over whether the incense products constituted controlled substance analogues at the time of their initial seizure, there is now no dispute that these products are schedule I con-trolled substances as a result of the Attorney General’s scheduling them. As such, by operation of § 881(f)(1), Smoke Shop’s interest in the products was forfeited. And this result makes sense: we imagine that Congress did not intend for plaintiffs to obtain damages for lost items that were eventually deemed contraband (even if the plaintiff tried to fight that designation initially, as Smoke Shop did here). That said, the government never raised this argument about the interaction between 21 U.S.C. § 881(f)(1) and 28 U.S.C. § 2680(c)(2).”

Affirmed.

13-3921 The Smoke Shop LLC v. U.S.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Flaum, J.

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