Secure your valuables and get ready for a fun ride. No, really. You should probably secure your valuables.
According to the Ninth Circuit, it is not a constitutional violation to unlawfully seize $225k when the stolen property is covered by warrant. As such, officers who steal from suspects are still accorded qualified immunity for that theft – provided that the officers only steal certain property a certain way.
The case stems from an investigation into illegal gambling machines in Fresno, California. The plaintiffs in Jessop v. City of Fresno allege the officers seized $275,000 in cash and property during their investigation but listed only $50,000 in the inventory sheet. The $225,000 allegedly went into the officer’s voluminous pockets.
The district court judge dismissed the case on summary judgment, finding that the officers were entitled to qualified immunity. The plaintiffs, who ran coin-operated arcade games, were never charged with a crime. One of the police officers, however, was later arrested on a federal bribery charge for an unrelated incident and is no longer a Fresno officer.
An officer gets immunity from civil liability when acting “under color of law,” unless that conduct violates a “clearly established” constitutional right. An officer’s unethical conduct – or even malicious conduct – does not provide an exception from qualified immunity. The standard is whether a reasonable officer would have prior knowledge that the behavior is a constitutional violation, or that the violation is so obvious as to not require precedent.
Judge Milan D. Smith, Jr., writing for the unanimous panel, noted that it could be “rather quickly and easily decide[d] that there was no violation of clearly established law” in this case. The majority also found that theft of property isn’t obviously an unreasonable seizure.
The decision is noteworthy on the merits, but there’s more. In March, when the panel first issued its opinion, the court wrote that this was a matter of first impression for the Ninth Circuit.
The panel maintained that position in its September superseding opinion. However, in 2017, the Ninth Circuit decided Brewster v. Beck, which held that the refusal to release an impounded vehicle after the car owner appeared with a valid driver’s license and proof of ownership violated the owner’s Fourth Amendment rights. The Ninth Circuit, in Brewster, wrote that ““[t]he Fourth Amendment doesn’t become irrelevant once an initial seizure has run its course.”
Brewster wasn’t mentioned in the court’s March decision. The Ninth Circuit therefore issued the September opinion to clarify the record. However, despite previous case law appearing to be on point, the Ninth Circuit argued that:
. . . while Brewster involved the seizure of property pursuant to an exception to the warrant requirement . . . the City Officers seized Appellants’ property pursuant to a warrant that authorized the seizure of the items allegedly stolen.
The panel, then, held that so long as the theft included property named in the warrant, there was no constitutional violation. A reasonable officer in the Ninth Circuit, therefore, can appear to note that it is a constitutional violation to steal property not named in a warrant, or to steal property seized when it is excepted from warrant, but not to steal property named in the warrant.
Importantly, the alleged theft in Jessop occurred before the Ninth Circuit issued Brewster, so the court could have used these grounds to put officers on notice moving forward. However, Judge Smith wrote a specially concurring opinion arguing that Brewster appears to split from other jurisdictions on the issue of whether a seizure ends after the initial taking of the property. The panel did not find the seizure to be grounds for waiving qualified immunity.
To date, only the Fourth Circuit, in an unpublished opinion, has held that theft of property named in a search warrant constitutes an unreasonable seizure under the Fourth Amendment.
The plaintiffs have appealed to have the case reheard en banc, as well as the Supreme Court. While SCOTUS has greatly expanded and protected the judicial doctrine of qualified immunity, many members of the current court have also expressed dismay at the current state of civil forfeiture at both state and federal levels. Last February, the justices were unanimous in limiting state law enforcement’s power to seize assets.