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To Protect and Serve, or Pilfer and Steal?

It's commonly held that letting the cops do crimes is a big no-no, but thanks to a zany lower court ruling the question is in the Supreme Court's hands.

Drew Angerer/Getty Images

Last year, the Ninth Circuit Court of Appeals issued a stunning ruling: There is no “clearly established law” holding that police officers violate the Fourth Amendment when they steal property that they seize with a warrant. The unanimous three-judge panel then dismissed a lawsuit against the city of Fresno and three police officers who stand accused of doing just that. Now the officers are asking the Supreme Court to reject the plaintiff’s efforts to overturn that ruling.

“Although the [officers] ought to have recognized that the alleged theft of [the] money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment—which, as noted, is a different question,” Judge Milan Smith wrote in his opinion for the panel in Jessop v. City of Fresno. He argued that there was no “clearly established” precedent to establish that theft was a Fourth Amendment violation, and the panel declined to establish it themselves. The officers agreed, telling the Supreme Court that the Ninth Circuit “followed the rules for qualified immunity analysis, as laid down by this Court, to the letter.”

That is precisely the problem. Legal academics, judges, and even some Supreme Court justices have sharply criticized the Supreme Court’s rulings on qualified immunity in recent years. The judicial doctrine shields state and local officials from federal civil-rights lawsuits if their alleged misdeeds aren’t contrary to “clearly established law.” In some cases, this is an easy hurdle for plaintiffs whose rights are violated to overcome. But as the Ninth Circuit case shows, the high court’s qualified-immunity precedents can often lead to absurd outcomes.

The case began in 2013 with an investigation into illegal gambling activity. Three Fresno police officers—Derik Kumagai, Curt Chastain, and Tomas Cantu—obtained a search warrant from a local judge against two suspects, Micah Jessop and Brittan Ashjian, who owned an ATM business. The warrant authorized the officers to seize, among other things, any “monies, negotiable instruments, securities, or things of value” that they found. According to Jessop and Ashjian’s petition for the Supreme Court, the officers seized “several thousand dollars” from their homes and businesses in the course of executing the warrant.

A few hours after the initial searches, Jessop and Ashjian told the court, Kumagai returned alone to Jessop’s house while his wife was home alone and said he needed to search it a second time. From there, they allege that Kumagai went into the bedroom, where the officers had previously observed that Jessop kept a collection of rare coins, purportedly valued at $125,000. Kumagai spent several minutes alone in the bedroom, making this second sweep, and then left after saying his investigation was finished. According to their petition, the officers seized more than $275,000 from their searches, including the the coin collection, creating a discrepancy with the police inventory sheet the officers filed later that night, which stated that the officers had only seized $50,000 in cash. No charges were filed against Jessop and Ashjian, though the city and officers say they avoided charges by agreeing to become informants and forfeiting the $50,000.

In their reply brief for the court, the officers and the city “categorically deny” that any theft took place. The brief strongly implies without stating outright that Jessop may be exaggerating the coin collection’s existence and value. They also note that the plaintiffs didn’t bring a lawsuit until two years later, after Kumagai was arrested in 2015 for what the city describes as “an unrelated incident.” In that incident, federal prosecutors said that Kumagai told a suspected drug dealer in 2013 that he could shield him from a federal investigation and get him registered as a confidential informant in exchange for a $40,000 bribe. Kumagai eventually pleaded guilty to accepting $20,000 and received a two-year prison sentence.

Whether the thefts really happened, however, doesn’t actually matter at this point in the litigation. When public officials ask a court to dismiss a lawsuit against them on qualified-immunity grounds, courts always assume that the plaintiff’s allegations are factual when considering the request. It’s unsurprising that the officers and the city want to strenuously insist that they didn’t do what the plaintiffs claim they did. But it’s also irrelevant as a factor for judges to consider in qualified-immunity cases. If there’s a factual dispute—and there often is—that’s what the trial, which the officers are trying to avoid, is supposed to untangle.

The Supreme Court’s test for qualified immunity hinges on whether the officers’ alleged actions were not just unconstitutional, but “clearly established” as unconstitutional at the time. Courts typically rely on federal court opinions to determine this. In the Jessop case, both the district court and the Ninth Circuit found no clear precedent to establish that the Fourth Amendment barred officers from stealing during a search. The Ninth Circuit’s survey of cases found only an unpublished Fourth Circuit case from 2004 that found it would be unconstitutional to not return seized property and a Ninth Circuit case from 2017 on impounding vehicles without a warrant. That’s not enough for a consensus, the panel found.

Surely there must be room for judges to state the obvious, right? Smith noted a Ninth Circuit decision in 2013 where the court concluded that there were “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.” But he refused to adopt that framework to alleged theft during a police search. “We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing,” he wrote, paraphrasing a Supreme Court ruling from 2004. “Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”

The ruling gets stranger from there. Even if one somehow accepts that the Fourth Amendment doesn’t bar officers from thievery during searches, wouldn’t the panel have the opportunity to “clearly establish” it going forward? That way, future Ninth Circuit panels, as well as other federal appellate courts, could deny qualified immunity in similar lawsuits in the future. Apparently not. “Although the question appears to have an obvious answer at first blush, it is not clear whether the theft of property seized pursuant to the warrant violates the Fourth Amendment,” Smith wrote in a concurring opinion to his own decision. Rather than break new constitutional ground, the panel “need not attempt to reconcile the conflicting case law,” he wrote.

It’s hard to imagine a better example of one of the central paradoxes of qualified immunity. To discern whether officers are entitled to it, the Supreme Court established a two-part test for lower-court judges: to determine 1) whether the alleged actions violated a constitutional right, and 2) whether that right was “clearly established” at the time of the alleged act. In 2009, the justices unanimously ruled in Pearson v. Callahan that courts need not carry out the two-part test in that order. In other words, if the lower courts can establish that the purported right wasn’t “clearly established” at the time, they can avoid the nettlesome task of determining if anyone’s rights were violated.

The court’s approach to qualified immunity, particularly since Pearson, has drawn widespread scorn for the absurdities to which it leads. In the last few years, Justices Clarence Thomas and Sonia Sotomayor have both raised questions about the doctrine from the bench. So have the lower-court judges who are frequently forced to wrestle with it. “Plaintiffs must produce precedent even as fewer courts are producing precedent,” Judge Don Willett, who serves on the Fifth Circuit Court of Appeals, wrote in a concurring opinion in 2018. “Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.”

Beyond the effects on constitutional law, Jessup and Ashijian’s lawyers also warned the justices about the real-world consequences of the panel’s decision. “Any police officer in the Ninth Circuit is therefore free to pilfer property listed in a warrant at will and successfully claim immunity if hauled into court,” they wrote. “The decision below will thus expose more than 60 million individuals in nine States to the arbitrary power of every unscrupulous law enforcement officer who enters their home armed with a warrant—an outcome the founders, who fought a revolution in part to end the petty tyranny of officers wielding warrants, would have shuddered to imagine.”

The plaintiffs’ lawyers did not ask for a wholesale revision of qualified-immunity precedents in this case, though some civil-liberties organizations filed friend-of-the-court briefs in favor of it. Instead, they urged the justices to summarily reverse the Ninth Circuit’s ruling—a practice to which the court is prone in qualified-immunity cases—and order the lower court to reconsider it. That would be a welcome relief for those who have long sought police reform in the Western United States. But it would also merely prune the edges of a growing weed of police abuse in the American courts when the justices should be clamoring for its roots.