DeBoer

In this appeal, we consider whether city and state officials are entitled to'qualified immunity for entering city-owned premises and seizing the business and personal records and the personal property of an individual where the city and the individual had agreed that “[f]inancial records for audit purposes shall be made available to the [c]ity and any other governmental agency with jurisdiction,” and whether the agreement between the city and the individual created a constitutionally protected property interest.

I.

In November 1993, the City of Belling-ham, Washington (the “City”) entered into a written agreement (the “Agreement”) with D & M Operating Company (“D & M”), to manage the City-owned Bayview Cemetery (“Bayview”), from January 1, 1994, to December 31, 1998. The Agreement was signed on behalf of the City by the mayor, Tim Douglas (“Douglas”), and on behalf of D & M by Dean DeBoer (“DeBoer”). Under the Agreement’s terms, D & M would sell graves and merchandise, maintain records, schedule funerals and to some extent, maintain Bay-view’s grounds. In return, the City would pay D & M a monthly fee and a portion of the proceeds of Bayview’s monuments and memorials…

concurring:

I concur fully in Parts I, II.A, II.B.2, and II.C of the majority opinion. I also concur in the result reached in Part II.B.l, but I reach that result by a differently-reasoned route.

As the majority opinion points out, by the time the events giving rise to DeBoer’s termination occurred, D & M Operating Company had been transformed from a two-person partnership to a sole proprietorship. 2 See slip op. at 3148. The City’s termination letter of January 31, 1995, recognizes DeBoer as “the principal” of D & M. Article I of the Agreement provides that “this Agreement is one for 'personal services.” (Emphasis added.) Apparently the City (whose attorney drafted the Agreement) thought this point of sufficient importance that Article XI.A reiterates that “[tjhis agreement is for the performance of professional services.” Article XI.B goes on to provide that “[n]one of the services covered by this Agreement shall be subcontracted by the Manager without prior written consent of the City....” Upon the City’s insistence in late 1994, DeBoer withdrew from his other business ventures to devote his full time to the management of the cemetery. All in-dicia are that this was a…

concurring in part and dissenting in part:

I concur fully in that part of Judge Takasugi’s opinion which holds that the Bellingham defendants are not entitled to qualified immunity with regard to De-Boer’s Fourth Amendment claims.

My disagreement with the majority is over DeBoer’s due process claim. In my view, the contract between the City and D & M Operating Company, of which De-Boer was a partner, created no due-process-protected property interest in DeBoer that protects him against a breach by the City. As the majority opinion indicates, the City’s contract was not a contract of employment, nor was it even a contract for DeBoer’s personal services as an independent contractor. It therefore does not fall within that large body of precedent holding that an employment contract under which a state employee may be discharged only for “cause” creates a constitutionally protected property interest. See Perry v. Sindermann, 408 U.S. 593, 601 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972).

The majority, however, concludes that DeBoer’s interest is protected because the contract between his firm and the City could be terminated unilaterally by the City only for “cause.” In so holding, I…