Great moments in qualified immunity

“Fresno, Calif. police seize cash pursuant to a search warrant, give property owners an inventory sheet stating they seized $50k. Allegation: The cops actually seized $276k, stole the difference. Ninth Circuit: It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity.” [Institute for Justice “Short Circuit” on Jessop v. City of Fresno]

In other news, the Cato Institute together with a dozen other groups has filed an amicus brief urging the Supreme Court to review a divided Tenth Circuit holding that qualified immunity forbids suit against a state caseworker who conducted a warrantless and nonconsensual strip search of a four year old girl at her preschool based on unfounded abuse allegations. My colleague calls the qualified immunity doctrine “an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law.” [Jay Schweikert, Cato on Doe v. Woodard] More: Federalist Society debate on qualified immunity between Will Baude and Christopher Walker.


  • This is only half as outrageous as it sounds. Assuming the officers stole the money, their actions were a crime and a tort. That doesn’t necessarily mean it’s a 4th Amendment violation, especially if the warrant gave them the right to seize the money. The victim (assuming the statute of limitations hasn’t run out) could possibly sue in state court for theft, instead of in federal court for constitutional violations.

    • Yes, that’s a good point. Not all abuses by government officials, even when flagrant, necessarily violate the Bill of Rights, and there is no indication that California law is so structured as to deny the owners any hope of a civil remedy. .