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When the police seize property in the course of their official duties, they have "qualified immunity." How is that immunity qualified? I.e., what are the minimal conditions under which they could be stripped of that immunity and subject to criminal charges like Theft?

To take the most extreme example I can think of: A police officer encounters you during the investigation of a crime. You happen to be moving that day, so all of your belongings are in "plain view" between the yard, open house, and open moving truck. The cop decides he really doesn't like you and so, even though there is no nexus between you or your property and the crime he is investigating he decides to seize all of your property as "evidence." Because it's in "plain view" he doesn't need a warrant. He properly logs your property into evidence, and then lets you know you won't see it until the case has been adjudicated. (What case, and when will that be? He won't tell you because it's an open investigation, but he notes that these things can drag on for years. I.e., he articulates an intent to deprive you of your property for so long a period as to satisfy the requirements of Theft.)

Is this cop immune to any criminal charge for this action?

What if you, as the victim, can prove beyond a reasonable doubt that he did not follow proper procedures. E.g., he took something that was provably exempt from the "plain view" doctrine and therefore should have not been taken without a warrant, which he did not have?

  • "Plain view" isn't "cops can seize something if it's in plain view without a warrant," it's "cops can seize something without a warrant if it is in plain view and is clearly contraband or evidence." He still needs probable cause. – cpast Sep 14 '15 at 16:46
  • @cpast - Right, but it's unclear whether that (or any of this) is just an evidentiary exclusion rule, or whether an inadmissible seizure can also constitute theft. – feetwet Sep 14 '15 at 16:54
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Qualified immunity is a doctrine that protects government officials (including police) from civil liability in §1983 suits. Anderson v. Creighton describes the legal standard - objective legal reasonableness.

There is no condition that would strip an officer of civil immunity and open him up to criminal liability because the criminal charges could attach regardless of the disposition of civil liability. I say "could" because who is going to charge and prosecute the crime?

The CATO Institute tracks police misconduct. Not all misconduct is criminal, but reading through their site will give you an idea of why it is difficult to determine when and why cops are charged with crimes.

Only a small fraction of the 17,000 law enforcement agencies actually track their own misconduct in a semi-public manner, and even when they do, the data they provide is generic and does not specify what misconduct occurred, who did it, and what the end result was.

  • Presumably, FOIA requests could be used to successfully retrieve the details, correct? – Mowzer Sep 14 '15 at 20:40
  • @Mowzer not at a state level, which is where most police are employed. – Viktor Sep 14 '15 at 20:41
  • @Viktor: Looks like all 50 states plus DC have some version of FOIA that could be used? Here's a link to the list. – Mowzer Sep 14 '15 at 20:46
  • @Mowzer that is correct, but they still do have different standards. Like in NJ we have the open records act, but it has slightly different standards than FOIA. I just wanted to make a point that FOIA applied only federally. – Viktor Sep 14 '15 at 20:48
  • @Mowzer - State-level FOI (a.k.a. RTK or Right-to-Know) laws have been stymied somewhat successfully by police unions to prevent the release of details of "internal investigations." See here for example: "[T]here are still a significant number of states that limit access to these records." – feetwet Sep 14 '15 at 21:03

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