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Fifth Amendment
Introduction to the Fifth Amendment
The Fifth Amendment's Takings Clause—"nor shall private property be taken for public use, without just compensation"—ensures governments can't seize your assets without fair pay, while its protections against self-incrimination and due process guard against arbitrary deprivations. Ratified on December 15, 1791, as part of the Bill of Rights, the Fifth Amendment drew from English common law, including the Magna Carta's promise against uncompensated takings and protections for the accused, to prevent the new federal government from repeating colonial injustices like arbitrary property seizures by British officials.
Overview of Cases
OLC's Fifth Amendment advocacy centers on protecting property from uncompensated government grabs, from tax foreclosures to asset seizures.
Home Equity Theft
In Freed v. Thomas, OLC again won a pivotal ruling that the retention of tax-foreclosure surpluses constitutes an unconstitutional taking under the Fifth Amendment. Gratiot County Treasurer Michelle Thomas foreclosed on Donald Freed's property for unpaid taxes of about $750. The county sold it for $42,000, retaining the entire surplus without compensation to Freed. The federal appellate court held that owners retain a protected interest in surplus proceeds, and governments cannot retain them as windfalls. This victory, the first federal appellate affirmation, awarded Freed his equity and spurred reforms and class actions statewide (to which OLC attorney Philip L. Ellison was appointed class counsel as part of the law firm's class action practice).
Interest on Taken Property
In Pung v. Kopke, OLC represented the Estate of Timothy Scott Pung against Isabella County , its treasurer, and other officials for withholding property. The county seized Pung's $200,000 home over a $2,200 disputed debt (later deemed erroneous), sold it for $76,008, and retained the equity, denying the estate a hearing. The district court granted partial summary judgment for Pung on the takings claim but limited recovery to auction surplus; the Sixth Circuit affirmed, rejecting fair market value (FMV) compensation. This ruling prompted a successful and still SCOTUS case challenging whether just compensation means fair market value, not depressed sale prices.
Innocent Ownership
The OLC team also litigated Novak v. Federspiel representing firearms owners against Saginaw County Sheriff William Federspiel. In 2017, deputies seized 14 firearms from a deer-hunting cabin during a domestic dispute (unrelated to the guns), but the Sheriff refused to return them despite no charges against the firearms' owners. Plaintiffs alleged a temporary taking without just compensation. The Sixth Circuit reversed explaining that the trial "should have allowed" the suing plaintiffs "to proceed with their: (1) federal takings claims against Federspiel in his official capacity, (2) Second Amendment claims against Federspiel in his official capacity, and (3) state-law claim-and-delivery action."
Take Action
For homeowners and families, it's a promise against "home equity theft" and unfair forfeitures. When counties pocket surpluses from tax sales or sheriffs withhold seized assets indefinitely, it devastates lives. The law firm of Outside Legal Counsel has led serious legal challenges resulting in landmark rulings that make governments pay what they owe. Lost property to a tax foreclosure, seizures, or denial of full compensation? Fight back with an advocate who wins at the highest levels. Contact us for a review to start the work to secure justice.