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.