Ninth Circuit Upholds Its Previous Declaration That Cops Stealing Your Stuff Doesn't Violate The Constitution

from the and-cops-are-still-not-on-notice-they-can't-just-steal-stuff dept

Earlier this spring, the Ninth Circuit Appeals Court basically said it’s okay for cops to steal property from citizens. This isn’t because stealing is okay. It isn’t. It’s illegal. It’s that stealing someone’s possessions after they’ve been seized with a warrant doesn’t violate the Constitution.

In this case, officers, who were engaged in an illegal gambling investigation, raided a couple’s home, walking away with far more property than they officially said they did:

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.

Despite it being apparently obvious that being illegally stripped of personal possessions would interfere with a person’s direct interest in the property they no longer have, the court extended qualified immunity to the officers. It reasoned that theft, while illegal, isn’t unconstitutional, even when it’s the government stealing from citizens.

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.

The Ninth Circuit then withdrew this opinion, suggesting it may have had second thoughts about allowing officers to engage in theft so long as they have a warrant. It needn’t have bothered. The superseding opinion [PDF] changes nothing. It points out that only one other circuit has reached the conclusion that theft by law enforcement officers violates the Constitution, but that opinion was unpublished, which means it simply doesn’t count.

Since there’s no precedent out there in the federal court system, the Ninth isn’t going to go out of its way to create some.

We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment. The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).

Not addressing it now means having to write ridiculous paragraphs like this in order to prevent officers from being sued for stealing stuff during searches.

We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”

I’m pretty sure the officers knew it was wrong to steal. It’s a thing pretty much everyone knows. That they wouldn’t have been “on notice” that it violated the Constitution seems almost beside the point. But since the officers raised a qualified immunity defense, we’re left with this absurd outcome.

Appellants have failed to show that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim.

The court recognizes what it’s doing. But it claims to be bound by [checks notes] lack of precedent, which makes this footnote’s recognition of the obvious especially meaningless.

Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong. We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.

Unfortunately, this closing statement is still true.

Not all conduct that is improper or morally wrong, however, violates the Constitution.

But when the conduct involves government employees illegally depriving people of their belongings, it would seem to violate the right to be free from unreasonable searches and seizures. The search may be protected by a valid warrant, but making off with property that isn’t targeted (or even present on the inventory sheet) sure sounds like an unreasonable seizure.

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Comments on “Ninth Circuit Upholds Its Previous Declaration That Cops Stealing Your Stuff Doesn't Violate The Constitution”

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76 Comments
non-legalist says:

Minion supports common law!

I’m pretty sure the officers knew it was wrong to steal. It’s a thing pretty much everyone knows.

You just stated, whether know / admit or not, the essence of common law.

Remember The Golden Rule: Do unto others as you would have them do unto you.

Of course astro-turfing "Gary" will soon be in saying how he hates Common Law…

AnonyCog says:

Re: Re: Re: The Golden Rule is basis of all law.

Stephen is correct, as you can still commit crimes while serving a warrant. This is a violation through theft by deception or fraud against the government and the people of the UNITED STATES OF AMERICA. Therefore, the unpublished ruling that the public has no access to is not a precedent nor is it applicable to the decision of outright theft. If receipts showing that the individuals claim possession of these items for insurance purposes, the government is duty bound to investigate and hold those liable for the theft. Dirty police also make the whole bushel rotten.

Wendy Cockcroft (profile) says:

Re: Re: Re:2 The Golden Rule is basis of all law.

Knowing that a certain act is morally wrong has never stopped any criminal from proceeding with crime. That’s why they’re criminals; they know it’s wrong and do it anyway. Police, whose job it is to enforce the law, know more than the rest of us what’s right or wrong (you’d think!), but that doesn’t seem to stop them killing, raping, and robbing at will when they’re so inclined.

The only good LEO is one who does the job properly, professionally, and within the confines of the law.

btr1701 (profile) says:

Re: Re: Re:

The way the article is written makes it sound like the plaintiff/victims are just shot out of luck, but the victims of the theft can still press felony criminal charges against the cops for violation of the penal code prohibiting grand larceny and sue them civilly under state law.

Just because something is not unconstitutional doesn’t mean it’s not illegal.

Anonymous Coward says:

Re: Re: Re:3 Re:

"They can still sue under state law. There’s no qualified immunity for police violation of the grand larceny statute in my state."

They could. And after you spend more on lawyer bills and court costs than the good officers walked away with, you might even win.

Pot odds are you end up in a place where getting the bad cops steal everything you legally own because warrant – or civil forfeiture – is the less expensive option, and where even when you win the case nothing will happen to the thief with a badge.

Hence why it’s bloody important to get leverage on the federal level for shit like this.

Gary (profile) says:

Re: Troll supports common law!

You just stated, whether know / admit or not, the essence of common law.

What "Common Low" are you trying to describe? Please cite.

https://en.wikipedia.org/wiki/Common_law

The body of law derived from judicial decisions of courts is what us speakers of English here int he States use as the actual definition.

If you want to assign your own imaginary made up terms, you need to define them first.

Gary (profile) says:

Re: Re: Re: Troll supports common law!

Gary" and Masnick hold, "common law" is the summed result of court decisions

What the actual fuck are you trying to say?

Common law is clearly defined. I neither hate it not love it. Not am I trying to make up some gibberish and hold other people to it.

Cabbage Law, on the other hand, is part of the nonsensical rantings of Blue Balls. Law that is too important to write down because everyone should know it?

Gary (profile) says:

Re: Re: Re:3 Troll supports common law!

So, you can’t even do a simple citation – but expect us to take your word for it?

https://en.wikipedia.org/wiki/Common_law

In other words – You are making it all up. That’s called "Headcannon" if you were writing Fanfic.

The Golden Rule is a good idea – not a law. Or cite otherwise.

Anonymous Coward says:

Re: Re: Re:5 liar supports what he imagines common Law to be

“You don’t have to take anyone’s word for it, or need a citation. Go ask anyone on the street if this is right.”

Wow bro. The best you have is the Family Feud standard? That’s about four steps below cabbage law.

Just admit you’re wrong. The truth will set you free.

Matthew Cline (profile) says:

Re: Re: Re:5 Troll supports common law!

I mean, if they actually had a definition they’d be shouting it out.

The thing is, most SovCits do have a concrete definition of common law, so I don’t think John Smith/out_of_the_blue/whoever is a SovCit. The commenter in question seems to view common law as some sort of common sense type thing which people learn of via cultural osmosis.

Scary Devil Monastery (profile) says:

Re: Re: Re:6 Troll supports common law!

"The commenter in question seems to view common law as some sort of common sense type thing which people learn of via cultural osmosis."

Or, given Out_of_the_blue/Jhon Smith/Baghdad Bobs prior modus operandi, more likely it’s the new one-word schtick he uses to club every dissenting argument with without giving a toss what the word actually means.

"Common law" is defined by "precedent", which means all it takes is for one judge to dissent over a prior opinion and that particular aspect of common law is overturned.

It’s somehow typical that Baghdad Bob/OOTB’s weapon of choice is the one type of "law" which can actually be overturned by a single judge.

David says:

I agree that plain theft is not a Fourth Amendment violation

Because there is absolutely no way that an officer, reasonable or not, can assume that his behavior is backed by the law. And the officers not entering the stolen amount into the records should automatically not make their conduct covered by qualified immunity because they chose not to conduct that action under governmental oversight.

This is straightforward deliberate criminal behavior and should have the respective consequences regard litigation and the employment of the officers in a position requiring more rather than less respect of the law than in a civil job.

That the government chooses to condone the crimes of their officers rather than terminate and prosecute them, that can be considered a Fourth Amendment violation and a violation of the constitution.

The officers’ conduct, in contrast, is "just" a crime.

Anonymous Coward says:

While qualified immunity has its uses, such as covering an overstepping of bounds like collecting and cataloguing belonging that might be useful as evidence, but were not covered by a warrant. How did it get extended to covering blatant illegal actions like theft. It can be assumed that the intent was theft because they did not record what the seized, making it inadmissible as evidence, due to a broken chain of custody.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"The judge and the cops are part of the same system."

Not necessarily. However, it’s pretty much given that the state attorneys and judges who aren’t blindly on the side of law enforcement stand a very slim chance of getting elected.

Hence why the one shot at getting bad cops to not steal from suspects relies on bringing the issue to the federal level.

urza9814 (profile) says:

Re: Warrant? What warrant?

It was not seized by the government because it was not recorded in the evidence inventory, therefore it was plain theft by a citizen which isn’t a 4th amendment violation.

The fact that the government will then refuse to prosecute that citizen because he also happens to be a cop is also not a violation, it’s merely prosecutorial discretion.

Comboman says:

Decision is correct

When officers steal during a legally executed warrant, they are stealing from the government (who should have taken possession of the seized property), not from the criminals. Therefore no forth amendment violation has occurred. They are still guilty of stealing the seized property, but that is a separate issue. If the criminals were smart, they would have threatened the dirty cops with exposing them in exchange for a portion of the seized funds.

urza9814 (profile) says:

Re: Decision is correct

"If the criminals were smart, they would have threatened the dirty cops with exposing them in exchange for a portion of the seized funds."

Why? It DID get exposed. So exactly what were the consequences for the cops that they needed to be so afraid of? What were these consequences which were so severe that it would have been worth giving up thousands of dollars to avoid it?

Personanongrata says:

Rule of Man? Or Rule of Law?

The search may be protected by a valid warrant, but making off with property that isn’t targeted (or even present on the inventory sheet) sure sounds like an unreasonable seizure.

The judicial doctrines of qualified/absolute immunity are the bastard children of a justice system (and apathetic electorate) that allows judges to empower themselves beyond the Constitution in twisting and contorting the law for expediency.

It is just so much more convenient in allowing the thieving officers to hide behind the law than it would be for the judges to wade into a law enforcement created sea of shit and hash things out in search of justice.

The Bill of Rights and US Constitution were not authored eleven score and twelve years ago so judges could hide the crimes of government agents behind the defective judicial doctrine of qualified/absolute immunity.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness._

http://www.ushistory.org/declaration/document/

Gary (profile) says:

Re: Rule of Man? Or Rule of Law?

The judicial doctrines of qualified/absolute immunity are the bastard children of a justice system (and apathetic electorate) that allows judges to empower themselves beyond the Constitution in twisting and contorting the law for expediency.

Would you be speaking…. Common Law by any chance?

Letting Judges and Juries decide court cases has it’s flaws, but overall it works better than the alternatives.

That One Guy (profile) says:

There's gutless and then there's downright corrupt...

… Seriously, what the hell is in the water/air in that circuit that the judges there seems to keep issuing insane(ly corrupt) rulings like this?

We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong.

Unless you’re a cop or a gutless/corrupt judge that is, in which case theft is perfectly okay because everyone knows putting on a uniform and badge instantly puts you in single digit IQ territory.

That principle does not, however, answer the legal question presented in this case.

The truly warped bit is, that very line undercuts their own argument elsewhere. If it’s accepted that ‘virtually every human society’ considers theft a bad thing then the idea that a cop would have no idea that robbing someone is bad and against the law, and thereby not get qualified immunity for doing so, is utterly nonsensical. Their own argument shoots itself in the foot, but they are so pathetically desperate to cover for the police that they are willing to engage in contortions in order to give them a pass.

Scary Devil Monastery (profile) says:

Re: There's gutless and then there's downright corrupt...

"… Seriously, what the hell is in the water/air in that circuit that the judges there seems to keep issuing insane(ly corrupt) rulings like this?"

In a US state a judge is elected, and often the same applies to district attorneys. Turning a blind eye to the alleged malfeasance of police officers is far less damning than being perceived as being "soft on crime" because said judge or DA has turned their guns on the law enforcers. It’s that simple.

Anonymous Coward says:

Where the fuck do these ‘judges’ come from? Theft is theft, doesn’t matter who committed it or against who! There is no excuse when it’s an ordinary person and much less when it’s a member of those meant to be upholding the law! I guess kickbacks are more important than the law, even to those who supposedly separate right from wrong to keep us safe!

That One Guy (profile) says:

Re: Re:

The sad thing is the judges in question are almost certainly not getting kickbacks from stuff like this, they simply can not or will not acknowledge that a cop could do anything wrong, and/or are unwilling to hold a cop accountable for their actions.

As messed up as it is if they were being bribed that would actually make more sense.

That Anonymous Coward (profile) says:

Just because they are old does not mean they are wise.
Perhaps it is time to go back to the good old days of putting them on ice floes and letting them fend for themselves rather than bring ruin to the community because those whippersnappers need to understand until a court tells them, in a published opinion, that stealing is a crime.

Doktor Thomas (profile) says:

the 9th Circuit

The judiciary in this country is at an all-time low.
The 9th Circuit has been delusional for a decade.
The DOJ needs to remedy its aberrant performances.

This underlines the serious problems with all the governments in the USA.
Not one deserves the support of The People.

The time for change is here. When the new republics are established,
lawyers and politicians should be barred from public service of any kind. ©2019

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