OLC Petitions Full Sixth Circuit to Overrule 'Erroneous' Fourth Amendment Precedent

For Immediate Release | July 09, 2025
https://olcplc.com/public/media?1752077375

Outside Legal Counsel clients Gerald Novak and Adam Wenzel secured a significant legal victory in their recent appeal against Saginaw County Sheriff William L. Federspiel before the United States Court of Appeals for the Sixth Circuit (Case No. 24-1278, decided June 20, 2025). The Cincinnati, Ohio-based Sixth Circuit reversed the Sheriff's prior trial level win on key claims, allowing Novak and Wenzel to proceed to trial with their Fifth Amendment takings claims, Second Amendment claims, and Michigan state law claim-and-delivery action. This ruling marks a major first impression decision for innocent citizens whose private property is seized and forever retained by law enforcement, like the Saginaw County Sheriff’s Office.

Despite this major legal milestone, the Sixth Circuit upheld the dismissal of Novak and Wenzel’s Fourth Amendment claims, relying on its prior decision in Fox v. Van Oosterum, 176 F.3d 342 (6th Cir. 1999), which holds that the Fourth Amendment does not apply to the retention of property after an initial lawful seizure. The Fourth Amendment guarantees the right of the people to be secure in their effects from any “unreasonable” seizures.

On July 4, 2025, Outside Legal Counsel PLC, alongside Thomas J. Lambert, PLC, filed a Petition for Rehearing En Banc, urging the entire group of active Sixth Circuit judges to overrule Fox v. Van Oosterum. The petition argues that Fox conflicts with modern constitutional jurisprudence, including United States v. Jacobsen, 466 U.S. 109 (1984), and decisions from the Ninth and D.C. Circuits (Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017); Asinor v. District of Columbia, 111 F.4th 1249 (D.C. Cir. 2024)), which recognize that prolonged, unjustified retention of property constitutes an ongoing Fourth Amendment violation.



"En banc" review is a process where all active judges of the U.S. Court of Appeals for the Sixth Circuit, rather than the usual three-judge panel, hear and decide a case. This procedure is reserved for cases of exceptional importance or to resolve conflicts within the circuit’s precedent. The active federal appellate judges of the Sixth Circuit (currently 16) vote on whether to grant the petition.

“For nearly a decade, our clients have been unjustly deprived of their property without due process,” said Philip L. Ellison, lead counsel for Novak and Wenzel. “While we are thrilled with the Sixth Circuit’s recognition of their Fifth and Second Amendment claims, we urge the federal court to reconsider Fox v. Van Oosterum en banc to align with Supreme Court precedent and sister circuits. Sheriff Federspiel’s indefinite retention of our clients’ firearms violates fundamental constitutional protections.”

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