CA9: The extreme of QI: officers alleged to have committed theft during execution of a SW get QI because no case says it’s a 4A violation

Officers get qualified immunity for alleged theft of $300,000 in cash and property from plaintiffs because it wasn’t clearly established that theft from a search is unreasonable under the Fourth Amendment. Jessop v. City of Fresno, 2019 U.S. App. LEXIS 26674 (9th Cir. Sept. 4, 2019), replacing Jessop v. City of Fresno, 918 F.3d 1031 (9th Cir. Mar. 20 2019). Summary by the Court:

The panel affirmed the district court’s order granting the City of Fresno police officers’ motion for summary judgment in an action alleging that the officers violated the Fourth and Fourteenth Amendments when they stole Appellants’ property during the execution of a search and seizure pursuant to a warrant.

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from Appellants’ properties. Appellants alleged, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants alleged that the City Officers stole the difference between the amount listed on the inventory sheet and the amount actually seized from the properties.

The panel held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity. The panel reasoned that although the decision in Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017) was instructive on the question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to the warrant, violates the Fourth Amendment, Brewster’s facts varied in legally significant ways from those in this case. Moreover, the panel noted that the City Officers seized Appellants’ property in 2013, prior to the Brewster decision in 2017. The panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment. The panel further held that the Fourth Circuit’s unpublished decision in Mom’s Inc. v. Willman, 109 F. App’x 629, 636-37 (4th Cir. 2004)—the only case law that the time of the incident holding that the theft of property pursuant to a warrant violates the Fourth Amendment—did not put the “constitutional question beyond debate.”

Thus: There is no such thing under qualified immunity similar to res ispa loquitur: the thing speaks for itself. Kafka would love this.

Law & Crime: Federal Court: Cops Accused of Stealing $225,000 in Property From Suspects Are Immune From Lawsuit by Jerry Lambe (“an eyebrow-raising opinion”).