While exercising a search warrant in 2013, Fresno police raided and seized $50,000 from Micah Jessop and Brittan Ashjian, two businessmen suspected of illegal gambling (neither was ever criminally charged). Worse, the two claimed that police actually grabbed $151,000 in cash and $125,000 in rare coins, and “stole the difference” above what was reported on the inventory sheet. Critically, the $225,000 that was allegedly stolen wasn’t included on the inventory report for seized property or booked into evidence.
Arguing that the alleged stealing violated their constitutional rights, Jessop and Ashjian sued. After all, the Fourth Amendment was a direct response to the infamous “general warrants” that let British officers ransack homes, which is why it specifically protects against “unreasonable searches and seizures;” police stealing for their own gain is hardly reasonable.
But under the U.S. Supreme Court’s precedents for qualified immunity, plaintiffs must show that their constitutional rights were violated and that their rights were “clearly established” at the time. According to the court, a right is “clearly established” only if “it would be clear to a reasonable officer that his conduct was unlawful.”
The High Court has, however, made an exception for cases where “the violation was so obvious” that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.”
For the Fresno case, since “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant,” the Ninth Circuit briskly concluded that “the city officers are entitled to qualified immunity.” Incredibly, even though the judges conceded that “virtually every human society teaches that theft generally is morally wrong,” the Ninth Circuit flatly denied it was “obvious” the officers were in the wrong legally.
This is not “one of those rare cases in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that we must conclude . . . that qualified immunity is inapplicable, even without a case directly on point,” Judge Milan Smith wrote for the majority in Jessop v. Fresno. According to Smith, it wouldn’t be “clear to a reasonable officer” that stealing $225,000 would violate the Constitution they’ve sworn to uphold.
Attorneys for both the plaintiffs and the officers declined to comment.
Further rubbing salt into the wound, the court declined to decide whether or not the alleged stealing by the Fresno officers actually violated Jessop and Ashjian’s rights. As a result, if cops are again accused of stealing seized property, they most likely would be shielded by qualified immunity, since it still wouldn’t be “clearly established” that their actions are unconstitutional.
Jessop has set a damaging precedent for the Ninth Circuit, which governs not only the entire state of California, but Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well.
Outraged, several civil liberties and government accountability organizations, including the Institute for Justice, the Law Enforcement Action Partnership, and the Reason Foundation filed an amicus brief urging the full Ninth Circuit to rehear the Jessop case en banc.
(Rather unusually, the Ninth Circuit panel previously issued a ruling in March that also upheld qualified immunity for the Fresno officers. But in September, the panel decided to withdraw that decision and file a “superseding opinion.” A decision on rehearing the case en banc is still pending.)
Calling the ruling “wrong, both under existing case law and as a matter of common sense,” the joint amicus argues that “the panel’s decision allows police officers to steal from suspects with impunity, and without any concern that they might be subject to civil liability.” The brief connects the allegations to civil forfeiture, which lets law enforcement agencies seize and keep cash, cars, real estate, and other forms of valuable property, often without ever filing criminal charges against the owner.
“Given the abuse that already exists when the government is permitted to seize property for the government’s own use,” the joint amicus warned, “further immunizing officers who commit outright theft for their own personal profit will make it even easier for government officials to abuse their authority and escape any liability.”