concurring.
I agree with the conclusions reached by the majority and with much of its analysis. On several points, however, my line of reasoning departs from that of my colleagues. Accordingly, I write separately.
Wagner’s complaint may be divided into three broad categories of claims. The first rests on the fourth amendment, the second on the due process clause of the fourteenth amendment and the third involves a largely unarticulated equal protection claim. Since the due process claims are the simplest, I will discuss them first.
The essential factual allegation underlying each of Wagner’s claims is that someone in the police department stole personal property from his car. This is said to be a deprivation of property without due process of law, in violation of the fourteenth amendment. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), clearly applies to this claim. I would add to the majority’s discussion of this issue only that Hudson v. Palmer, — U.S.—, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), has made it clear that the Parratt principle applies to intentional as well as to negligent deprivations of property without due process, when the deprivation did not occur pursuant to an established state procedure. See id. at 3203-04. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Since Wagner has not demonstrated the absence of a meaningful state post-deprivation remedy, his due process claims fail under Parratt. So much is clear.1
Wagner also claims that the theft of his property violated the fourth amendment. It is now clear that Parratt applies only to procedural due process claims and not to claims involving a violation of a substantive constitutional right. A number of circuits have so held, see, e.g., Wolf-Lillie v. Sonquist, 699 F.2d 864, 871-72 (7th Cir.1983); Duncan v. Poythress, 657 F.2d 691, 704-05 (5th Cir.1981), cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982), and five members of the Supreme Court have expressed this view, see Hudson, 104 S.Ct. at 3208 n. 4 (Stevens, J., joined by Brennan, J., Marshall, J., and Blackmun, J., concurring in part and dissenting in part); Parratt, 451 U.S. at 552-53, 101 S.Ct. at 1921-22 (Powell, J., concurring in the result). If, therefore, Wagner’s complaint states a fourth amendment claim, this case cannot be disposed of on the basis of Parratt.
As the majority effectively demonstrates, the initial seizure of Wagner’s car and the search for and seizure of certain items out of it at police headquarters did not, on the undisputed facts shown here, violate the fourth amendment. Wagner claims, however, that another fourth amendment event occurred at police headquarters: items of his personal property were stolen — a permanent deprivation going beyond the normal temporary dispossession that occurs when evidence is seized.2 Because I do not believe that cases such as Florida v. Meyers, — U.S. —, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984), and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), authorize police officers to steal personal property from a properly impounded vehicle, but instead allow them only to search the vehicle and temporarily seize items from it for evidentiary use, I write sepa*194rately to explain why this claim does not state a fourth amendment violation.
The claim that the continued retention by state actors of personal property, as opposed to its temporary seizure for use as evidence, violates the fourth amendment is, indeed, novel. Wagner has not presented us with any authorities holding that a permanent dispossession such as the one alleged in this case violates the fourth amendment. At best, such conduct has been thought of as a possible deprivation of property without due process in violation of the fourteenth amendment. See, e.g., Coleman v. Faulkner, 697 F.2d 1347 (10th Cir.1982); Kimbrough v. O'Neil, 545 F.2d 1059 (7th Cir.1976).3
The Supreme Court was presented with a similar claim in Hudson. In that case, a prison inmate alleged that the defendants searched for, seized and destroyed personal property from his prison cell, all of which was said to violate the fourth amendment. Because these events occurred in a prison cell, where there is no reasonable expectation of privacy, see 104 S.Ct. at 3200-02, the majority did not decide whether a theft or other permanent dispossession in another setting would violate the fourth amendment, see id. at 3201 n. 8. Justice O’Con-nor, however, did address this issue and concluded that,
if the act of taking possession and the indefinite retention of the property are themselves reasonable, the handling of the property while in the government’s custody is not itself of Fourth Amendment concern. The non-privacy interests protected by the Fourth Amendment do not extend beyond the right against unreasonable dispossessions. Since the exigencies of prison life authorize officials indefinitely to dispossess inmates of their possessions without specific reason, any losses that occur while the property is in official custody are simply not redressable by Fourth Amendment litigation.
See id. at 3206 (O’Connor, J., concurring) (emphasis added). The appropriate source of constitutional protection against such acts lies not in the fourth amendment but in the due process clause of the fourteenth amendment. See id. at 3206-07.
Although a majority of the Supreme Court has not had occasion to adopt Justice O’Connor’s views, I find her reasoning persuasive, particularly in the absence of contrary authority. Accordingly, the alleged theft of Wagner’s property did not work any fourth amendment wrong; instead, it would at most be a deprivation of property without due process and Parratt fully applies to that claim.
Finally, Wagner claims that he was denied equal protection of the law because his property was illegally seized and ultimately stolen while that of other persons was not. While this claim surely must fail, Wagner is entitled to a brief explanation of why this is so.
If Wagner had alleged that the law was applied differently to him because of race, gender, age or any other type of classification, then it would be hard to show how his complaint fails. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). Wagner’s complaint is, however, devoid of any such allegations. Rather, he merely asserts that he was treated one way and everyone else another. This has never been thought to raise an equal protection claim. See Beck v. Washington, 369 U.S. 541, 554-55, 82 S.Ct. 955, 962-63, 8 L.Ed.2d 98 (1962); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944).
Accordingly, the only claims properly stated in Wagner’s complaint are subject to Parratt and the district court correctly dismissed his complaint.
. Wagner also alleges that the defendants’ conduct violated several state constitutional and statutory provisions. The majority correctly decides that even if these provisions create an interest entitled to due process protection, the defendants deprived Wagner of that interest only by a "random and unauthorized act”; this claim is thus within the scope of Parratt. See 451 U.S. at 541, 101 S.Ct. at 1916.
The complaint also contains fifth amendment due process claims which parallel the fourteenth amendment claims. Since Parratt applies to fifth amendment due process claims as well as to fourteenth amendment due process claims, see Weiss v. Lehman, 676 F.2d 1320 (9th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 725, 74 L.Ed.2d 951 (1983), Wagner’s fifth amendment claims also fail.
. The defendants have not alleged that there was any contraband in Wagner’s car.
. Such a claim would, of course, be subject to Parratt. See Coleman, 697 F.2d at 1349.