The Sixth Circuit’s “Retention-as-Infringement” Doctrine:
Post-Seizure Holding of Lawfully-Owned Firearms Implicates the Second Amendment and the Takings Clause

Introduction

In Gerald Novak; Adam Wenzel v. William Federspiel, No. 24-1278 (6th Cir. June 20 2025), the United States Court of Appeals for the Sixth Circuit revisited a long-running dispute over fourteen firearms seized during a 2017 domestic-violence investigation in Saginaw County, Michigan. After the underlying criminal case ended, Sheriff William Federspiel refused to release the weapons, insisting that the claimants—Gerald Novak (the cabin owner) and Adam Wenzel (a relative)—had not proved ownership. The plaintiffs sued under 42 U.S.C. §1983 and Michigan law, alleging constitutional violations and seeking return of the guns.

The district court dismissed every claim. On appeal, the Sixth Circuit affirmed several rulings but revived three core theories:

• Official-capacity claims that prolonged retention of the firearms may constitute a Fifth-Amendment taking.
• Official-capacity claims that the same retention may infringe the plaintiffs’ Second-Amendment right “to keep” arms.
• A state-law claim-and-delivery (replevin) action for the return of the firearms.

In doing so, the court articulated a new and potentially far-reaching doctrinal principle: a governmental actor’s continued possession of lawfully-owned firearms after the criminal basis for an initial seizure has dissipated can independently trigger scrutiny under both the Takings Clause and the Second Amendment—even where the initial seizure was unquestionably lawful. This commentary unpacks the ruling, the precedents, the court’s reasoning, and the judgment’s likely impact.

Summary of the Judgment

1. Takings Clause: Individual-capacity claims failed because qualified immunity was not clearly abrogated, but official-capacity claims survive. Plaintiffs created a genuine issue of material fact on ownership; therefore, summary judgment for the Sheriff was vacated, and discovery is permissible on remand.
2. Second Amendment: The district court erred by holding that retention of firearms lies outside the Amendment’s “plain text.” The Sixth Circuit held that “keeping” unquestionably encompasses ongoing possession of one’s own guns. The claim therefore proceeds to the historical-tradition stage of Bruen.
3. Procedural/Substantive Due Process & Fourth Amendment: No violations; summary judgment for the Sheriff affirmed.
4. Inverse Condemnation under Michigan Constitution: Dismissal affirmed under the invited-error doctrine.
5. Claim-and-Delivery (Replevin): District court’s dismissal reversed; governmental immunity inapplicable because plaintiffs seek only return of property, not damages; prior state dismissals for jurisdictional reasons do not trigger res judicata.
6. Disposition: Affirmed in part, vacated in part, and remanded for proceedings on the surviving Takings, Second Amendment, and claim-and-delivery claims.

Analysis

1. Precedents Cited and Their Influence

• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021)
  Established that physical appropriation without acquisition of title is a per se taking. The Sixth Circuit relies on this per-se framework to treat retention of tangible personal property (firearms) as a potential taking.
• Knick v. Township of Scott, 588 U.S. 180 (2019)
  Clarified ripeness and direct federal forum access for takings claims, implicitly supporting plaintiffs’ ability to sue in federal court without exhausting state remedies.
• CHKRS, LLC v. City of Dublin, 984 F.3d 483 (6th Cir. 2021)
  Held that a takings plaintiff must own the property at the time of the taking. Here, affidavits of ownership create a triable issue, precluding summary judgment.
• O'Connor v. Eubanks, 83 F.4th 1018 (6th Cir. 2023)
  Reaffirmed that individual officers enjoy qualified immunity on takings claims because personal liability was not clearly established.
• District of Columbia v. Heller, 554 U.S. 570 (2008) & McDonald v. City of Chicago, 561 U.S. 742 (2010)
  Recognized an individual right to keep and bear arms for self-defense. The panel extends this logic: the right “to keep” necessarily entails the right to reclaim one’s own arms from the government.
• New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)
  Provides the two-step test (textual coverage + historical tradition). The Sixth Circuit stops after step one, holding plaintiffs have cleared the threshold; historical inquiry awaits remand.
• Fox v. Van Oosterum, 176 F.3d 342 (6th Cir. 1999)
  Governs Fourth-Amendment analysis; once the initial seizure ends, retention is not a “seizure.” Accordingly, plaintiffs’ Fourth-Amendment theory fails as a matter of law.
• Shoemaker v. City of Howell, 795 F.3d 553 (6th Cir. 2015) and Johnson v. City of Saginaw, 980 F.3d 497 (6th Cir. 2020)
  Define adequacy of process; the panel uses these to reject the plaintiffs’ procedural-due-process claims.
• Michigan cases: Whitcraft v. Wolfe, O’Connor v. State, Adair v. State
  Outline the contours of claim-and-delivery, governmental immunity, and res-judicata principles under state law.

2. The Court’s Legal Reasoning

a) Takings Clause

The court divides the takings analysis between personal-capacity and official-capacity defendants:

• Personal Capacity: Individual liability is not “clearly established”; thus qualified immunity applies.
• Official Capacity: A municipality (sheriff’s office) can be liable for unconstitutional policies (Monell). Here, the policy of indefinite retention without initiating forfeiture or returning the property may constitute a per se physical taking. Because affidavits of ownership create a factual dispute, summary judgment for either side is inappropriate.

b) Second Amendment

Applying Bruen, the panel asks first whether the Amendment’s text covers the conduct. It holds that “keep” plainly includes ongoing possession of firearms one already owns; to hold otherwise would gut the right. By rejecting the district court’s narrow reading (that plaintiffs could still buy other guns), the court devises the “Retention-as-Infringement” principle: governmental refusal to return lawfully-owned firearms is itself potential infringement.

c) Due Process

• Procedural: Quick action justified lack of pre-deprivation hearing; and adequate post-deprivation avenues existed (Michigan forfeiture procedures, which plaintiffs failed to pursue).
• Substantive: Sheriff’s refusal to release weapons without proof of ownership is not conscience-shocking; rational basis review easily satisfied.

d) Fourth Amendment

Once seized, ongoing detention does not constitute a continuing “seizure” under Fox; claim fails.

e) State-Law Replevin (Claim-and-Delivery)

Because plaintiffs seek only the property itself, not damages, governmental tort immunity under Michigan’s GTLA does not bar the action. Prior state dismissals were jurisdictional; therefore, claim preclusion does not apply. A jury must decide ownership and wrongful detention.

f) Invited Error and Inverse Condemnation

Plaintiffs explicitly invited dismissal of their Bauserman-style constitutional claims; consequently, they cannot revive them on appeal.

3. Impact of the Judgment

1. Second Amendment Expansion
   The decision is among the first published appellate opinions to treat post-seizure retention as conduct squarely within the Second Amendment’s text. Future litigants will cite this ruling to challenge police departments that hold firearms as “evidence” long after cases conclude.
2. Takings Doctrine for Chattels
   Federal courts often concentrate on real property. By applying Cedar Point to personal property (guns), the Sixth Circuit signals that any physical appropriation of personalty—even when initial seizure was lawful—may mature into a compensable taking if the government continues to possess the property without legal process or compensation.
3. Municipal Liability & Policy Reform
   Because the surviving claims are official-capacity (i.e., municipal) claims, counties and sheriffs’ offices within the Sixth Circuit should review evidence-retention and forfeiture policies. Indefinite holding policies lacking formal procedures may expose agencies to damages (takings) and injunctive orders (Second-Amendment claims).
4. State-Law Remedies Resurrected
   The Sixth Circuit’s affirmation that GTLA immunity does not bar non-damages replevin actions clarifies a procedural path for Michigan litigants seeking return of property.
5. Qualified Immunity Boundary
   The ruling reaffirms that personal-capacity takings claims remain largely unavailable absent Supreme Court guidance; plaintiffs must target official-capacity defendants for relief.

Complex Concepts Simplified

• § 1983: A federal statute allowing individuals to sue state actors who, under color of law, violate constitutional rights.
• Monell Liability: Municipalities are only liable when a constitutional violation results from an official policy or custom—not merely from an employee’s isolated act.
• Qualified Immunity: Shields government officials from personal liability unless they violate “clearly established” rights in a way a reasonable officer would recognize.
• Takings Clause: Requires government to pay “just compensation” when it physically takes private property for public use.
• Claim-and-Delivery/Replevin: A lawsuit seeking the return of specific personal property wrongfully held by another, plus (optionally) damages for wrongful detention.
• Invited-Error Doctrine: A party cannot ask a court to take a particular action and then complain on appeal that the court did exactly that.

Conclusion

Novak v. Federspiel establishes a critical new precedent within the Sixth Circuit: a governmental entity’s continued possession of lawfully-owned firearms, after the justification for their seizure has ended, can infringe both the Second Amendment and the Takings Clause. While the court did not resolve the ultimate merits—ownership and historical tradition remain for the district court—its doctrinal statement that “keeping” under the Second Amendment includes reclaiming one’s own guns reshapes the legal landscape for evidence retention and property-return policies.

Beyond firearms cases, the opinion signals that prolonged governmental holding of personal property (vehicles, cash, electronics) without forfeiture or return may face dual constitutional attack. Agencies should thus review retention practices, ensure clear procedures for claimants, and document decisions to avoid liability under the burgeoning “Retention-as-Infringement” doctrine.

For practitioners, the case underscores strategic considerations: pursue official-capacity claims for structural relief, develop factual proof of ownership early, and leverage state replevin actions unencumbered by damage immunity. For courts, Novak furnishes an analytical roadmap for post-Bruen Second-Amendment challenges that involve tangible property rather than licensing or carry restrictions.

Key Takeaway: Evidence lockers are not constitutional blind spots. When the government’s need to hold property ends, the owner’s constitutional rights begin to revive—robustly so under both the Takings Clause and the Second Amendment.