© 2011, Forfeiture Endangers American Rights Foundation
Springer versus eleven
IRS special agents: According to the Tenth
Circuit, when law
enforcement lawfully seizes your money and then steal it while it is in
possession, it is
not a Fourth Amendment violation -- and
plaintiff who represented himself throughout the five year fight to
money did not allege a Fifth
process violation, the Court will just let the officers
money they stole.
When assistant United States attorneys told federal agents to return all the cash taken from Lindsey K. Springer pursuant to execution of a search warrant a week earlier, federal Agent Brian Sham gave Mr. Springer a Treasury department check made out for $2,000 less than the IRS agents had seized. The September, 2005 search of the Springer home had been executed as part of an investigation into Mr. Springer’s tax activities. After Mr. Springer’s wife told the agents about currency in her bedroom dresser drawer, agents William R. Taylor and Donald A. Anderson separately counted the cash in front of Mrs. Springer. Agent Taylor then prepared an evidence tag stating there was approximately $19,000 in cash, and another agent recorded that amount in the inventory of items seized. By the time agents arrived at the bank to convert the cash into a cashier’s check there was only $17,000.
A week later Mr. Springer filed a motion in the U.S. District Court for the Northern District of Oklahoma for return of the seized currency. The district court denied that motion without prejudice (leaving open the possibility of further motions for return of the currency), however the assistant U.S. attorneys then instructed Agent Sham to return all the seized money. Agent Shem obtained a $17,000 Treasury Department check and gave it to Mr. Springer. Two months later Lindsey Springer, representing himself pro se filed a Bivens1 suit against eleven IRS special agents, asserting they had violated his Fourth Amendment rights by stealing $2,000 during or following the search of his home. Nearly five years later, on August 5, 2010, the Tenth Circuit Court of Appeals concluded that because “there was no clearly established law holding that a theft following a lawful seizure violates the Fourth Amendment,” the agents were entitled to qualified immunity for their theft of the Springer’s currency. And because Mr. Springer did not include a due process or takings claim under the Fifth Amendment (and despite the fact that courts are supposed to liberally construe all filings of a pro se litigant such as Mr. Springer who represented himself throughout all the proceedings), the Appeals court reversed the district court’s denial of the agents motion for summary judgment based upon qualified immunity, and remanded the case for further proceedings consistent with the Tenth Circuit’s decision that these agents could just keep the money they stole.
The Tenth Circuit concluded:
that it was not clearly established at the time of the search that the agents' alleged conduct of stealing money after it was lawfully seized violated the Fourth Amendment. Accordingly, we must also conclude that the agents were entitled to qualified immunity. We reverse the district court's denial of qualified immunity, and remand for the court to enter judgment in favor of the agents. ...
The agents argue that Mr. Springer’s arguments are more appropriately characterized as a Fifth Amendment claim for deprivation of property without due process. ...[H]owever,...Mr. Springer...did not assert a Fifth Amendment claim. We therefore will not address one.
Case No. 09-5088, 2010
LEXIS 16324, *24.
Other courts of appeals have also held there is no clearly established case law holding that stealing seized property violates the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Three of the four cases that had addressed the failure to return lawfully seized property had held that there was no Fourth Amendment violation. In Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177, 179 (2d Cir. 2004), a school teacher filed a § 1983 action against school officials for unreasonably searching his classroom and taking certain items.5 He contended that the failure to return the items was an unreasonable seizure of them. Id. at 187. Because the initial seizure was reasonable, the Second Circuit held that the defendants' failure to return property did "not, by itself, state a separate Fourth Amendment claim of unreasonable seizure." Id.
5 A Bivens suit against a federal agent is the federal equivalent of a suit against State officials under § 1983. Hartman v. Moore, 547 U.S. 250, 254 n.2, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). [*20] Thus, we cite to both Bivens and § 1983 cases as authority.
In Fox v. Van Oosterum, 176 F.3d 342, 344 (6th Cir. 1999), the plaintiff filed a § 1983 action seeking the return of his driver's license. The Sixth Circuit held there was no seizure and no violation of the plaintiff's Fourth Amendment rights, because the plaintiff was not challenging the initial seizure of his wallet, but, rather, only the refusal to return the license to him. Id. at 349, 350 (noting that seizure was complete before defendants refused to return license). The court pointed out that [HN13] "the Fourth Amendment protects an individual's interest in retaining possession of property but not the interest in regaining possession of property." Id. at 351. "Once the act of taking the property is complete, the seizure has ended and the Fourth Amendment no longer applies." Id.
In Lee v. City of Chicago, 330 F.3d 456, 458-59 (7th Cir. 2003), the plaintiff's car was impounded for evidentiary purposes. The plaintiff, in his § 1983 action, did not dispute this seizure. Rather, he contended that the City of Chicago's refusal to return the car after concluding its search unless he paid a fee was an additional seizure under the Fourth Amendment. [*21] Id. at 460. The Seventh Circuit disagreed, holding that the Fourth Amendment applies to an individual's interest in retaining property, not in regaining property that has been lawfully taken. Id. at 466. "Once an individual has been meaningfully dispossessed, the seizure of the property is complete, and once justified by probable cause, that seizure is reasonable." Id. "Conditioning the car's release upon payment of towing and storage fees after the search was completed neither continued the initial seizure nor began another," id., and it did not "equate to a 'seizure' within the meaning of the Fourth Amendment," id. at 471.
Likewise, in Wagner v. Higgins, 754 F.2d 186, 187 (6th Cir. 1985), the plaintiff filed a § 1983 action asserting that after he was arrested and his automobile was impounded, police officials stole personal property from the automobile in violation of his Fourth and Fourteenth Amendment rights. Noting that the plaintiff did not challenge his arrest or the impoundment of his vehicle as violating the Fourth Amendment, the Sixth Circuit determined that there was no Fourth Amendment violation for the inventory search. Id. at 189-90. Further, the court held that after [*22] Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the plaintiff did not state a claim for relief under the Fourteenth Amendment and could seek return of the property under state conversion law. Wagner, 754 F.2d at 187, 191-92.6
6 Case law decided after September 2005 also does not clearly establish a Fourth Amendment violation. In Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009), the Eleventh Circuit declined to hold that the retention of legally seized property violated the Fourth Amendment. Instead, the court decided that failure to return items presented a Fourteenth Amendment due process claim. Id.
In Ali v. Ramsdell, 423 F.3d 810, 811-12 (8th Cir. 2005), the plaintiff, proceeding under § 1983, alleged that her Fourth Amendment rights were violated when a police officer executing a search warrant seized money during the search and converted it to his own use. The Eighth Circuit expressed "considerable doubt whether an allegation that property appropriately seized in executing a valid search warrant but not inventoried and stored in the manner required by state law even states a claim under the Fourth Amendment." Id. at 814. Rather, the court determined that the plaintiff's Fourth Amendment [*23] claim was properly dismissed because it was "barred by the availability of an adequate remedy under state law." Id. at 814-15 (relying on Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)).
In comparison, the Fourth Circuit, in an unpublished case. determined that a theft of property constitutes a Fourth Amendment violation. In Mom's Inc. v. Willman, 109 F. App'x 629, 636-37 (4th Cir. 2004) (per curiam), the court held that the Fourth Amendment protected against the theft of a watch because the theft by the federal agents extended the seizure beyond its lawful duration. The court, however, also held that "those rights were not clearly established when the theft allegedly occurred." Id. at 636. Thus, the court determined that the federal agents were entitled to qualified immunity. Id. at 637.
Given the disparity in the law, we conclude that it was not clearly established at the time of the search that the agents' alleged conduct of stealing money after it was lawfully seized violated the Fourth Amendment. Accordingly, we must also conclude that the agents were entitled to qualified immunity. We reverse the district court's denial of qualified immunity, and remand for the court to enter judgment in [*24] favor of the agents.