CA9: Not well settled law that LEO stealing property during a search is 4A violation, so alleged thief gets qualified immunity

The law is not well settled, thus requiring qualified immunity, that a law enforcement officer’s stealing plaintiff’s property during a search is a violation of the Fourth Amendment. (Apparently something that’s obviously an unreasonable seizure doesn’t matter as long as the law isn’t settled.) Jessop v. City of Fresno, 2019 U.S. App. LEXIS 8271 (9th Cir. Mar. 20, 2019):

We have never before addressed whether the theft of property covered by the terms of a search warrant and seized pursuant to that warrant violates the Fourth Amendment. 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. Compare Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009), Lee v. City of Chicago, 330 F.3d 456, 460-66 (7th Cir. 2003), Fox v. Van Oosterum, 176 F.3d 342, 349-51 (6th Cir. 1999), and United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992), with Mom’s Inc. v. Willman, 109 F. App’x 629, 636-37 (4th Cir. 2004).

The Second, Sixth, Seventh, and Eleventh Circuits have held that the government’s failure to return property seized pursuant to a warrant does not violate the Fourth Amendment. Some of these courts have reasoned that because “the word ‘seizure’ [has been] defined as a temporally limited act,” the Fourth Amendment provides protection only against the initial taking of property, not its continued retention. Lee, 330 F.3d at 462; accord Fox, 176 F.3d at 351 (“[T]he Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property.”). Others have said that the failure to return seized property to its owner does not implicate the underlying rationales of the Fourth Amendment. Jakobetz, 955 F.2d at 802.

The Fourth Circuit, on the other hand, has held that federal agents violate the Fourth Amendment when they steal property that is seized during the execution of a search warrant. Mom’s Inc., 109 F. App’x at 637. The court relied on the Supreme Court’s decision in United States v. Place, 462 U.S. 696, 706, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), and reasoned that the Fourth Amendment “regulates all [] interference” with an individual’s possessory interests in property, “not merely the initial acquisition of possession.” Id. Thus, because the agents’ theft of the plaintiff’s watch interfered with the plaintiff’s interest in it, “such theft violates the Fourth Amendment.” Id.

The absence of “any cases of controlling authority” or a “consensus of cases of persuasive authority” on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins would be improper, they did not have clear notice that it violated the Fourth Amendment.

Nor is this “one of those rare cases in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that we must conclude … that qualified immunity is inapplicable, even without a case directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013). …

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