good morning your honour's kevin a little on behalf of the plaintiffs in appellants in this case james madison wrote a very clear first clause of the fourth amendment providing that the right of the people to be secure in their persons houses papers and effects shall not be subject to unreasonable search and seizure this court has previously been confined it with a similar argument here in grove vs ramirez the court found even though there was no case law directly pertinent to the issue the court found that the language of the amendment itself was sufficient the matters that are at issue in this case were nazis properly person into the war they were never they were never booked as evidence they were never reported as being seized they were  as being seized here there wasn't at the moment that this seizure occurred we would submit it was was the same as if the officers had taken it and set it on fire but but with respect following up on my colleagues comment you're claiming a fourth amendment violation yes and the question to question there are one does the fourth amendment contemplate something that happened after property was seized and we talk about what means and then you have the question of whether there's any case on point that would allow a reasonable officer to know that he or she could not take the property as you have alleged you have a problem on both counts so as start with the seizure in the very very late night and i've found it very interesting to go through so the historical background on this and it's fascinating is james  you have any case that you can cite to me where the fourth amendment was applied to find a constitutional breach if an officer who properly sees something under a warrant didn't account for it in the proper way well your honor yes with respect to this there are at least two circuits the second and i believe also the tenth and now the second then the seventh that have held that a some extensive notes here but unfortunately i don't include the name of the case but it is cited in the brief and it's also cited in the district court's opinion i believe it was a seventh circuit case and you're claiming that those and your honor i must take issue with this this was i think that the sticking point between the police and i this was not ceased pursuant to the war the warrant required this to be inventoried and reported it  e warrant wasn't properly executed it's a little bit of both your honor and the reason i say that is the following the warrant obviously gave the officers the right to enter it gave them access to the property but  had seized the same money and had essentially just set it on fire that clearly under this court's precedent and tamara and shannon tarpley would be a violation of the fourth amendment ok there that seem to be in disagreement as to whether it's a fourth amendment violation that's right we have a disagreement between various circuits as to whether in when you  you commit a fourth amendment violation it may not be covered by the constitution in this situation or i don't have phrase it a theft by officers is not clearly establishes a fourth amendment violation even if we think it is so you still have a problem your honor and i think in some respects this case is unique and i can explain why i think it's unique that able to your case i don't think so because base there's no clearly established point it's unique so if it's unique then how and what case tells every reasonable officer that they would be violating the fourth amendment and gauging the conduct you may have separate conversion claims or other common law based claims but we're talking about constitutional violation so that's why we're searching for your best case your honor this is the rare obvious case as was said in hundred vs bryant's officers qualified immunity is only supposed to protect some don't knowingly violate the law and also protect officers not in the rare obvious case where the language of the text of the amendment itself provides an outlet gives i think that that's where you're running into a problem with us because you're saying it has to be obvious that the officer would be violating the law sure it's obvious to everyone you can't commit thievery but is it obvious that that would be a fourth amendment violation and it's that second part that you need to focus on yes and i understand that your honor and i think it is and for this there is the court cases that the court cited all of those cases were cases where the property was seized it was reported in the paperwork the slighter case the springer case the lead case case versus x eslinger and then later on it went missing or something happened to it our the person had to pay a fee to get it back here the evidence in the most in the light most favorable to the plaintiff shows the officers never intended to channel this evidence i'm willing to contemplate that this is a fourth amendment violation but i don't have a case that tells me that i which you can see one thousand nine hundred eighty three when you don't inventory it properly i think that might be a point the amendment violation and doesn't come up to a seizure but the clearly established parameters are not clear to me your honor and this is a case in which officers made away with nearly two hundred thousand dollars pursuant to a warrant that they never photographed as part a warrant i will never end i remain willing to say it's obvious that they did wrong if they did that yes but don't we have to know it's a clearly established by a lease and of the constitution not that it's just established wrong and that your honor is why i initially cited grow versus ramirez in that case the court equally acknowledge there isn't a case that says that an officer can be sued for failing to particularize in the warrant what is to be seized but it was so clear justice stephen said based on the language of the fourth amendment itself it is so clear that this is a fourth amendment violation these officers can be sued notwithstanding  that you can't hold somebody for sixteen days without probable cause you get questioned later without probable cause the court chose to focus on the issue of a material witness case they just said there's no case like this it can be very general you're out of here because by now this might be i think i was right there but there was bringing more but that the same principle applies here and that is you've got to have a case that puts the officer  notice that what they do is a violation of the fourth amendment now as my colleagues have pointed out there may very well be state causes of action like conversion i don't know whether the state immunity protects them in that i don't know but the violating the fourth amendment other me they were stealing you know that they were converting somebody else's property that's a state issue that's not a constitutional issue but your honor i believe it is a constitutional issue and the reason why i say that if and qualifying me also some qualified immunity cases also provide if there are cases that give the officers a reasonable indication that what they're doing is illegal here i would rely on the text of the fourth amendment itself but not only that your honor where of the fourth amendment it sounds like what you're saying is you know if these are decent people they would know you can't do that therefore it's a fourth amendment violation that's not the way it works we need to have a case earlier that you did what you thought was right and you followed the constitution and i exhort you to do that then the case is even an hundred vs bryant the court says that not every issue and to harken back to judge smith's comments at the beginning i do feel like i'm standing in james those shoes we have here what a sensually is a writ of assistance were officers used the guise of authority to come in and without documentation steal property and this was not related to the investigation this was again i don't think any of us really question if your allegations history of our fourth amendment all of our history that led up to the enactment of that amendment that you cannot use the guise of your authority to come in and steal property from an individual and that distinction and i know i'm running out of time is that in this case there is no indication that it was properly seized and reported or any of those things instead what it shows is that from the very moment that these officers entered they were planning on stealing this and the best example of that you are the  the officers even during the search decided the coins they're not subject to the warrant so they said that what we were will leave the coins in the bedroom but the detective cooma guy went back and took the many way never photographed him never inventory good morning honors may please the court daniel bearer for a pelleas city of fresno officers chest pain and cantu and former officer cooma guy and wilson versus lane said if the judges disagree of the court's disagree a government employee should not be punished for picking the losing side there are circuits going both ways there are circuits that agree with my colleague there circuits that say that it's not a fourth amendment issue it's a procedural due and standard language that if you find you know anything described in the attachment then you must it doesn't say you must if you find the same or any part thereof to retain it in your custody subject to the order of the court as provided law i think that's what that's the language of counsel is relying on so it's contemplated that if you find responsive evidence you take it into custody and maintain it and in custody subject to further order the court and it's possible that a court this corporal haps could could interpret that to mean that the evidence was outside the warrant it could go the other way as though he's different circuits have and i do want to throw in we do deny that there was any theft there the allegations are true and that's why i had to throw that he and but for purposes of this appeal and the summary judgment we have to assume that what the plaintiffs testify two is correct but even if it is the courts goes both ways as to whether it's fourth amendment or procedural due process which you can't proceed on because there is an effective state law remedy under california law conversion they didn't claim in time to pursue that so they hung their hats on court on section one thousand nine hundred three and as the mom's case said i'm paraphrasing it doesn't matter whether it's clearly any officer would know that stealing is a crime a tort a sin they would have to know that it's a violation of the constitutional provision they're sued for and it has to be clearly established for fits within the realm of the fourth amendment ok and that's where they put excessive force i'm not exactly sure what to do with not excessive force cases like a fourth amendment violation is alleged but you say it's not a fourth amendment violation and it's not excessive force can they proceed on some other constitutional theory well if the fourth amendment applies and if you don't can't apply substantive due process but you just say the fourth amendment and this is a logical problem i'm having this isn't the fourth amendment you say it's clear it's not the fourth amendment they didn't violate the fourth amendment ok so why not substantive due process this is not excessive force situation where we're looking at a range of behavior and ok we're going to and then analyze it only and the fourth amendment the sub if you have something else besides excessive force case it says that that and even the supreme court of the ninth circuit well there's the arm and doris versus penman case in which says what kind of case was that i believe that was seizure of property real property if i recall correctly and conn condemning buildings and it shows that the graham vs conner analysis of fourth amendment versus substantive due process does not just apply do excessive force it like this and that is not an obvious case it's plainly not obvious to several judges in other circuits and district courts unless there's any further questions i'll submit i think we have no further questions thank you  all i can do your honors is emphasize that there are an admittedly small group of cases where the fact show as we submit they do here that officers intentionally violated the law where you don't need a prior case and this is such a case where officers come in and their affection showing that they intended at the very time that they came in to to make away with property and never abide by the terms of the warrant this is the rare case as i think was stated in wilson where this court can find notwithstanding the fact that there isn't a case on all fours with this that there is a constitutional violation and i fear for what might occur the same way that james otis did if this court holds the otherwise