Beierwaltes v. L'Office Fédérale de la Culture de la Confederation Suisse, No. 19-3457 (2d Cir. 2021)Annotate this Case
In 2017, Swiss law enforcement officers seized more than a thousand pieces of ancient art owned by the plaintiffs as part of an ongoing investigation into the illegal trafficking of cultural property. The plaintiffs sued the Swiss government entities and instrumentalities in the Southern District of New York, alleging that the seizure was arbitrary and made without probable cause. The district court dismissed the cases, holding that it lacked jurisdiction over the defendants under the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3).
The Second Circuit affirmed, rejecting an argument that jurisdiction was proper under the statute’s “expropriation exception,” which applies in cases involving property taken by a foreign state in violation of international law. A routine law enforcement seizure does not ordinarily constitute a taking at all, let alone a taking in violation of international law, because it falls within a state’s traditional police powers. Although there are a handful of narrow exceptions to that general rule, such as when the seizure is not rationally related to a public purpose and is a pretextual attempt to nationalize property without compensation, or (has continued for an unreasonable amount of time, none of those exceptions applies here.