Qualified immunity dooms esoteric due process claim

Plaintiff's lover in a volatile relationship went to his home when he wasn't there, but she got scared when an unidentified caller rang the telephone. So she called the police. They accompanied her into plaintiff's private study to see if her stuff was there, and they came upon drugs and related paraphernalia. Plaintiff was arrested even though the girlfriend told the police that she wasn't even allowed in his study and had actually cut the locks herself.

The case is Moore v. County of Delaware, decided June 27. While they are set forth in the opinion, the above facts are not really part of this appeal. They were part of an appeal in the same case decided two years ago, when the Second Circuit held that the officers were entitled to immunity on Moore's false arrest claim. Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007). This appeal concerns another claim from the same lawsuit which somehow fell through the cracks.

In addition to claiming false arrest, Moore sued on a due process violation. The argument is that when the police seized his property on this warrantless search, they did not provide him any pre-deprivation notice as required under the Due Process Clause. The district court denied the officers' motion for summary judgment. The Court of Appeals reverses in a summary order, dismissing the case.

Relying on a Supreme Court case, City of West Covina v. Perkins, 525 U.S. 234 (1999), the district court ruled in Moore's favor because "defendants were obligated to take reasonable steps to give notice that the property had been taken so defendant could pursue available remedies for its return."

The Court of Appeals disagrees. Under qualified immunity, if the law is not clearly established at the time of the alleged violation, the government defendants get the benefit of the doubt. This means that truly esoteric damages claims will not be heard by a jury, as police officers are not expected to know future developments in the law. Moore's legal theory in this case was not clearly established when the police seized his property. "There is no authority recognizing the particularized right ostensibly violated here -- i.e., the right to notice, at the time of a warrantless search, of that search and the items seized." As for the district court's reliance on that Supreme Court case from 1999, that language is most likely dicta (not necessary to the Supreme Court's holding) and does not cover the precise circumstances raised by this case.