En banc rehearing of this matter is imperative. The panel mishandled this case by refusing to resolve whether the defendants had violated the plaintiffs’ constitutional rights.
The appellants correctly assert that the Fourth Amendment most certainly prohibits the police from using a search warrant as an artifice for personally enriching themselves through the theft of a suspect’s property.
See Pet. for Rehear- ing En Banc at 6 (May 3, 2019). Moreover, if the panel’s decision remains un- changed, police officers will be immune from constitutional liability for blatant thievery. In choosing not to decide whether police theft violates the Constitution, the panel transformed qualified immunity into absolute impunity from constitutional li- ability. See id. at 17.
This ruling is not a faithful application of the Supreme Court’s modification of the qualified immunity deliberative process set forth in Pearson v. Callahan, 555 U.S. 223 (2009).