Appeals Court Says It's OK For Cops To Steal Stuff From Citizens

from the surprisingly,-this-isn't-about-asset-forfeiture dept

Qualified immunity isn’t a codified defense. Congress never passed a law granting public employees this exception to Constitutional protections. This exception — one that allows public servants to avoid being directly sued by the public whose rights they’ve violated — was crafted by the Supreme Court. The theory is it’s too hard for the government to fully comprehend the rights it’s supposed to be guaranteeing, so there needs to be an escape hatch for government employees.

This escape hatch has allowed an amazing amount of abuse to go unpunished. As long as the government employees were the first to engage in egregious Constitutional violations, they’re given a free pass. The free pass runs indefinitely if courts refuse to draw a bright line in published opinions. It doesn’t seem like it would be that difficult to comply with the Constitution, but here we are.

Qualified immunity has again been extended in a case where the behavior the government engaged in was not only unconstitutional, but criminal. (h/t Clark Neily)

In this case, an illegal gambling investigation led to the search of property owned by the plaintiffs. The search warrant authorized the seizure of cash, gambling machines, and anything else the government determined was derived from illegal activity. So, the government did some seizing. But the inventory sheet didn’t match up with what was taken. From the decision [PDF]:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

The Ninth Circuit Court of Appeals says there was no Fourth Amendment violation because the officers were authorized to seize this property. As for the theft, the court says it won’t even examine the Fourth and Fourteenth Amendment implications of the alleged misconduct because it must consider the defendants’ qualified immunity defense first. That leads directly to this jaw-dropping statement from the court:

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

This dismaying conclusion was reached by examining similar caselaw from other circuits. The Ninth Circuit isn’t the only circuit saying rights aren’t violated when the government steals citizens’ property… so long as the theft is accompanied by a warrant.

At the time of the incident, the five circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment, had reached different results.

Four of the five circuits have stated the Constitution does not protect against theft by the government provided the initial seizure was legal. The only holdout is the Fourth Circuit, which stated theft of property (obviously) interferes with citizens’ interest in the property they no longer have.

Worse, the Ninth Circuit is unwilling to establish this right and put the government on notice that similar theft in the future will be considered a Constitutional violation.

The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so.

Given that law enforcement is still allowed to steal property when executing search warrants, the court’s final words to the plaintiffs are the appellate equivalent of “thoughts and prayers.”

We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. […] But not all conduct that is improper or morally wrong violates the Constitution.

Sure, but we expect our government to engage in proper and moral behavior. Qualified immunity allows the government to do the opposite of that, and to violate Constitutional rights on top of it, all without having to answer for its misdeeds.

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Comments on “Appeals Court Says It's OK For Cops To Steal Stuff From Citizens”

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Anonymous Anonymous Coward (profile) says:

Where did that come from?

I am certainly no Constitutional scholar, but I am trying to figure out how the 14th Amendment might be in consideration, whereas the 5th Amendment seems more applicable:

U.S. Constitution – Amendment 5

Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Of course in this instance, it sure seems as though the private property taken was not for public use, but for personal use…by the thieves.

"Congress never passed a law granting public employees this exception to Constitutional protections. This exception — one that allows public servants to avoid being directly sued by the public whose rights they’ve violated — was crafted by the Supreme Court."

Congress has the right and the responsibility to do something about this, yet they don’t, and I suspect won’t anytime in the near future. Such a shame that those elected to represent us…don’t.

Anonymous Coward says:

Re: Where did law come from?

"I am certainly no Constitutional scholar" >>>

.. Constitution was written jn the plain language of its day and intended to be understood by the common populace.
Rule of law demands that normal citizens be able to clearly understand all the laws they are subject to.

Humble deferral to supposed constitutional scholars is a major error.

Anonymous Anonymous Coward (profile) says:

Re: Re: Where did law come from?

Which makes the rest of us wonder why courts have such a hard time understanding it. All the arguments about the Founders intent or some specious parsing of words, what they meant then vs what they mean now, and the other excuses to NOT abjure to the plain text meaning are what makes us plain folk so confused.

btr1701 (profile) says:

Re: Re: Re:2 Where did law come from?

The problems arise when a person or persons attempt to read into said documents things that are not actually there.

Our government has been acting extra-constitutionally for at least the last 80 years or so. The government would look very different if it was actually operating according to constitutional requirements.

In the pursuit of expanding the federal government’s power to regulate all aspects of society, all three branches of government have colluded to essentially repeal the 10th Amendment and "interpret" and expand the definition of "interstate commerce" to such an absurd degree that a person’s mere existence now "affects interstate commerce" and there’s nothing that isn’t subject to federal control.

For example, according to the Constitution, we shouldn’t even have the Department of Education, Department of Health, and the Department of Housing & Urban Development. Article I, Section 8 lists the powers of the federal government and Amendment 10 says any power not on that list belongs to the state and local governments. Well, I don’t see education, health care, or housing on the list so none of that is a matter of federal concern or jurisdiction. Those entire cabinet departments are unconstitutional.

And since the Constitution doesn’t mention any crimes other than counterfeiting, treason, and border enforcement, there should be no federal law enforcement beyond Customs and Border Patrol and the U.S. Secret Service. As it stands, the FBI, for example, is unconstitutional.

We could, of course, pass amendments to properly give the federal government these powers, but it’s a lot easier to just ignore the Constitution and have the judicial branch justify it by "interpreting" the document to mean the exact opposite of what it says.

philr (profile) says:

Re: Re: Re: Where did law come from?

Chomsky addresses this characteristic of our leaders and elites/ruling classes more generally which can be summed up with the idea that "it takes a special, top-tier education to install this illogical convoluted mode of reasoning as a default". In other words it takes a heavy amount of education to fool yourself into thinking in this manner.

Of course, "education" is read "indoctrination".

Bamboo Harvester (profile) says:

Re: Re: Re:2 Where did law come from?

Same with Bible Study. Can’t comprehend the text? Here, I’ll "explain" it to you….

I’ve seen more idiocy over that "extra" comma in the Second Amendment, usually by people with either only a passing idea of what grammar is, or by being deliberately obtuse "understanding" what ablatives absolutes are.

Paul Brinker (profile) says:

Re: Re: Where did that come from?

The court is saying they sued the wrong person. They can still sue the city / state for inaccurate accounting of seased goods as a violation of the 14th. This case should have enough evidence to prove that evidence has gone missing given they won in lower court.

Only the city / state can bring criminal theft charges.

Coises (profile) says:

Re: Re: Re: Where did that come from?

Yet how can that be?

Isn’t the whole point of 42 U.S. Code § 1983 that when an individual acts "under color of" law to deprive a person of their rights unlawfully, that individual can be sued?

The city/state surely didn’t authorize the officers to seize property and then keep it for themselves instead of turning it over to the department.

The argument seems to be that it wasn’t theft because the officers had a right to take the property based on the warrant; hence it becomes a violation of due process rather than a theft. That’s plausible, I suppose; but it defies logic to say that the city/state, and not the officers in question, are responsible for those officers’ failure to adhere to what is surely a clear department policy.

But, if that’s the case… is all this a setup, then, to demonstrate that a suit against the city/state is valid?

Anonymous Coward says:

Re: Re: Re:2 Where did that come from?

Well, I’m not sure in the US, but it seems similar to Spanish state liability in damages.

If anything done by the State causes damage to a person (it’s normal or abnormal operation of that service), he starts a damages liability procedure against the State, not against the individual people involved.

Afterwards, if there is criminal liability or negligence involved, it’s the State and not the person the one who takes disciplinary actions against the civil servant/s involved, including criminal procedures.

In short, this is made to make sure that the person gets paid for the damages, as it’s the State’s responsibility.

I think that the rationale behind the SCOTUS’ decision is similar.

Of course, that’s if the city/state properly brings up charges against the involved cops.

That One Guy (profile) says:

When you want to rob someone blind, get a badge

There’s vanilla spineless, and then there’s bootlicking, gutless worms, unwilling to challenge anyone with a badge because they’re too cowardly to say mean things to anyone in uniform, even something as simple as ‘just because you have a badge doesn’t mean you get to rob people’.

I’d love to see a defendant try that defense, arguing that nothing in the law prevents them from robbing a store blind, because they made a valid purchase beforehand, and the fact that part of the interaction was legal means the rest of it gets a pass, specifically referencing this ruling. I’m sure it wouldn’t work(because the defendant didn’t have a badge), but watching the contortions as the gutless cowards in robes tried to justify their hypocrisy would be great for raising blood pressure I’m sure.

The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing.

We sympathize with Appellants.

To this I have but one response: Liars.

If they really found it ‘deeply disturbing’ and they ‘sympathized with appellants’ they’d have done something to prevent it from happening again, if only by making it clear that while past gutless cowards in robes weren’t willing to take a stand and make clear that such behavior was unacceptable they are.

They wouldn’t even do that.

Their actions make clear that they are not ‘disturbed’ by the actions performed by the crooks in uniform and don’t give a damn about the appellants, and in fact see nothing wrong with police robbing people blind, despite their placating lies to the contrary.

Scum and cowards like those in this story deserve nothing but contempt, and it’s people like them that sully and destroy any respect people might have had for their respective professions, such that any contempt and/or disgust they get from the public is well earned.

After all, why would people respect treacherous criminals and those that support them?

David says:

It's a matter of standing.

The officers had a warrant permitting the seizure so they were quite within the law to take the respective property: they did not steal it from the casino operators. Instead, they stole it from the government by failing to declare the taken property. This is not a matter of qualified immunity or even disciplinary actions: this is clearly a matter of criminal prosecution for theft and/or larceny against the respective officers, and forcing them to personally pay back the respective amounts to the government as well as serving the required time in prison. The plaintiff, unfortunately, does not have standing here.

But the least this court should do is to initiate the necessary referrals for getting the officers what they rightfully got coming to them.

Anonymous Coward says:

Re: It's a matter of standing.

The plaintiff, unfortunately, does not have standing here.

The only situation in which the plaintiff would not have standing is if the government had already fully completed the process of civil/criminal asset forfeiture of the property, which has not happened (and in fact, couldn’t have happened since the property was never reported to the prosecutors office).

If the property was in the process of civil/criminal asset forfeiture, then the plaintiff has standing, as during this process ownership of the property is subject of a dispute between the government and the plaintiff, and does not (yet) belong to the government.

In this case, however, the property was seized as evidence pursuant to a search warrant, not as part of a forfeiture proceeding, meaning that the ownership of the property was never even in question. It indisputably belonged to the plaintiff at all times, and (unless forfeiture proceedings are undertaken, or the property is determined to be itself illegal) can only be held temporarily by the government as per evidence handling in an ongoing case before being returned to the plaintiff. The plaintiff has standing.

Or, if that doesn’t convince you, the fact that the case not only made it to trial in the first place, but was also successfully appealed all the way up to the circuit appeals court means that every single court (at least in the 9th Circuit) has agreed that the plaintiff has standing.

Bamboo Harvester (profile) says:

Re: Re: It's a matter of standing.

You hit the crux in the last sentence – it made it all the way up to Appeals Court.

That said, I suspect there’s more to the story, and I’m not willing to dig into it deep enough to find it.

What it sounds like happened is the equivalent of the police showing up at your home with a warrant for a firearm. They find the firearm, issue a receipt, and on the way out, the last officer steals your watch.

He did not steal it from "the government, he stole it from you*.

You don’t have Standing to sue, because there’s no record of complaint of the theft.

It’s a separate Action.

Cops raid a casino, take $55k in illegal items and issue a receipt. They also take $125k in cash and another $125 in rare coins, without issuing a receipt.

The cash and coins have no relation to the Warrant. It’s direct theft.

They should have been reported to the police as stolen, insurance claims filed (yeah, criminals get insurance policies too), and, with the testimony of which officers committed the theft(s), they should be brought to trial with no immunity at all – they committed the thefts on-duty, but since they didn’t issue a receipt or turn the items over to Evidence, it’s outright theft under color of law. No immunity attaches.

Something else had to have occurred for this to make it to an Appeals court. Or they never reported the theft (probably as Robbery, since the cops are armed…) and went straight to Civil claims. But I can’t see even a paralegal screwing up to that extent, or a Judge not mentioning that it was a discrete Criminal matter, not Civil.

Paul Brinker (profile) says:

Re: It's a matter of standing.

Technically they have sued the wrong person is what the court just said. If there is a disagreement between the official log and the actually taken items your required to go after the city or state. The state can in kind go after the cop if it wants for failure of duty to report.

This is of course hogwash, proving a cop lied on cash assets is near impossible and cops know this. Cops can put the wrong number right on the form, order you to sign it or go to jail and short of a dash cam recording it’s simply your word vs theirs.

The court just reduced theft to a clerical error.

btr1701 (profile) says:

Re: Re: It's a matter of standing.

Technically they have sued the wrong person is what the court just said.

Yes, that’s what the court said, but that doesn’t mean it’s not nonsense.

The 4th Amendment clearly requires that citizens are to be free from unreasonable seizures.

The 5th Amendment clearly requires that private property shall not be taken for public purpose without just compensation.

The 14th Amendment incorporates the 4th and 5th Amendments to apply to state government actions.

The Constitution is clear on this. A 10-year-old could easily work it out. It’s the judges that have twisted themselves into pretzels of illogic to justify doing the opposite of what the Constitution requires that are the problem.

Anonymous Coward says:

We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. […] But not all conduct that is improper or morally wrong violates the Constitution.

Ok, but what about all the laws that say theft is illegal?

And shouldn’t we hold our law enforcers to a higher proper and moral standard? If they’re allowed to break laws that the public is not what’s to stop the public from viewing them as nothing more than thugs with badges, people who should be treated as worse than street scum?

Anonymous Coward says:

Re: Re:

Aparently not. The thing is that by supporting theft by the police on citizens without due process, the government and the police become indistinguishable from criminals who mean harm and abuse on people. They should not be surprised when thing get bad enough that people start shooting the police in self defense. Sure its still illegal for people to do so but once it happens enough something has got to give and we either see reform or the police will keep getting distrust and danger hurled their way.

That One Guy (profile) says:

Re: Goodbye rule of law, hello rule of brute force

what’s to stop the public from viewing them as nothing more than thugs with badges

Stories like this are why I have for years now considered US police as the largest and most dangerous gang in the country. They can rob you, they can assault you, they can even kill you, and the legal system will not only look the other way it will actively support them.

The mafia and drug cartels could but dream to get this sort of treatment for their criminal actions, and while courts may think they’re protecting the ever-so-persecuted police with rulings like this, in the long-term all they are doing is driving an ever widening wedge between police and public, strengthening hated and disgust towards the police and the two-tiered legal system that supports them.

Anonymous Coward says:

Re: Re:

Ok, but what about all the laws that say theft is illegal?

They still apply. If you look at the last page of the ruling:

Appellants may very well have other means through which they may seek relief. But not all conduct that is improper or morally wrong violates the Constitution. (1)

(1) Indeed, the district court noted in its Order Granting Defendants’ Motion for Summary Judgment that Appellants “had access to an adequate post-deprivation remedy under California tort law.”

The court is in no way saying that the officers’ conduct is OK. The court is saying that theft is not necessarily a constitutional violation. Sometimes it’s just theft. The lawyers should try their lawsuit in state court, alleging theft instead of constitutional violations.

AnonyCog says:

A pedophile foster parent claims child neglect and called CPS to get your children removed from your home by law enforcement. Then the children are placed into Child Protection Services.

The social worker hands you back paperwork for you to show up in family court on child neglect, however when you do show up the charges are miraculously dropped and found to be unsubstantiated.

You asked to get your children back and the court officer then looks back at you and says, "We sympathize, but we don’t know where they are. Second, we had a valid warrant at the time so it’s not a case of kidnapping. I guess you’ve merely misplaced them."

Cue psychotic blackout and massacre to follow.

Pixelation says:

The judgement didn’t say that the officers immunity made it ok for them to steal from the plaintiffs. From the ruling…

"Appellants may very well have other means through which they may seek relief" And…
" 1 Indeed, the district court noted in its Order Granting Defendants’ Motion for Summary Judgment that Appellants “had access to an adequate post-deprivation remedy under California tort law.”"

It was only a decision on the constitutionality, not legality.

Sucks but they can still go after the thieves in blue.

Glenn says:

So, judge authorizes a warrant for agents of the law to steal stuff from citizens. Agents seize the stuff. Agents pocket some of the stuff for themselves. Maybe some of the stuff finds its way into the pockets of agents of the law other than those seizing the stuff? I guess that would make it a qualified success? (Here, it’s OK to steal from the government–and, therefore, the public which is supposedly being served–that which you’ve already stolen in the name of the government.)

Qualified immunity… because ignorance of the law is a defense when it’s your job as an agent of the law to know what is the law and what isn’t (but it’s not a defense for the rest of us who really aren’t supposed to know the law because it isn’t our job)

Basically, the rest of us get screwed coming and going. Law & order at its finest.

dickeyrat says:

Only the Beginning

And we ain’t seen NOTHING yet! Bitch McYertle is changing every rule in the book, to assure that every one of Blump’s extreme-Fascist judicial appointments meets approval. And given the high moral grounds (ha!) treaded by right-wingers drunk with power these days, look for scads of rulings over the next forty or fifty years, completely eliminating whatever rights may be left for ordinary citizens not connected to the power-wielders, either by blood relation or history of contribution$, This is how things are done in a Fascist dictatorship. Your orders are, to get used to it!

Bruce C. says:

A small step in logic, a giant leap for the 9th circuit.

I can kind of see why it went this way. The property was going to be seized regardless, so if some of it disappeared, it was really stolen from the government, not from the original owners.

the thing is, the inventory sheet is part of the chain of evidence. If an accurate inventory isn’t required for a "reasonable" seizure, it leaves people with no recourse to dispute the seizure. The property just vanished into thin air. That’s where the issue becomes constitutional.

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