Short Take: Stealing From Jessop, Still Fine

In the universe of dumb qualified immunity decisions, which sadly is a huge, HUGE, universe, Jessop v. Fresno stands out.

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.

Yes, you read that right. The cops executing the search warrant stole about $225,000 of seized items and they were granted qualified immunity because there was no “clearly established law” holding they can’t steal stuff they seize. Who knew that was wrong? How could cops possibly realize that using their law enforcement authority to steal would be frowned upon. Surely, we can’t expect that much of our highly professional police officers.

But that’s all old news. What’s new is that Supreme Court denied the petition for cert.

JESSOP, MICAH, ET AL. V. FRESNO, CA, ET AL.

The motion of Institute for Justice for leave to file a brief as amicus curiae is granted. The motion of Cato Institute, et al. for leave to file a brief as amici curiae is granted. The motion of New Civil Liberties Alliance for leave to file a brief as amicus curiae is granted. The motion of
National Association of Criminal Defense Lawyers for leave to file a brief as amicus curiae is granted. The motion of Constitutional Accountability Center for leave to file a brief as amicus curiae is granted. The motion of DKT Liberty Project, et al. for leave to file a brief as amici curiae is granted.

The petition for a writ of certiorari is denied.

Amici galore, all granted. Cert? Not so much. No fiery dissent by Ruth Bader Ginsburg or Sonia Sotomayor. Not even Clarence Thomas, raising the possibility that qualified immunity was a tragic mistake pushed by the living constitutionalists. Just the terse “denied.”

The ACLU had nothing to say about it, perhaps because they weren’t getting a slice of the money no matter what, although Reason did.

So it goes with qualified immunity, a legal doctrine that shields public officials from certain civil lawsuits as long as their misconduct has not been explicitly spelled out in pre-existing case law. The Supreme Court yesterday declined to hear that case, Jessop v. Fresno, along with two other cases pertaining to qualified immunity.

Jessop has all the baffling characteristics so often at the center of qualified immunity rulings. Amid the absence of a near-identical court precedent, we’re supposed to believe that the officers in question could not have been aware that their conduct was constitutionally dubious.

Why wouldn’t the Supreme Court, if it had any interest in righting this absurd wrong, or in the alternative, wrapping up cops stealing in the course of a search as a matter of human dignity? Certainly a case of this sort, raising something that would be obvious to any child who attended Sunday school and made it through the ten commandments, would recognize as a bad thing to do, deserves a spot on the docket.

Perhaps the answer lies in Circuit Judge Milan Smith’s special concurrence.

As the panel opinion recognizes, there is no question that the City Officers’ alleged conduct, if true, was morally reprehensible. Whether something violates the Fourth Amendment, however, is a different question from whether it is outrageous and morally wrong.

Whether stealing is morally reprehensible is the religious question. What about constitutionally reprehensible?

Here, the City Officers obtained a warrant that authorized them “[t]o seize all monies . . . or things of value furnished or intended to be furnished by any person in connection to illegal gambling or money laundering that may be found on the premises.” Accordingly, the warrant
permitted the City Officers to seize the money and rare coins that Appellants argue the City Officers stole from them.

Under the reasoning of the Supreme Court and several circuits cited above, therefore, Appellants’ Fourth Amendment claim appears to fail. Because the City Officers’ initial seizure of Appellants’ property was lawful, and because a Fourth Amendment seizure is complete after the government has taken possession of the property, Appellants would not be able to state a Fourth Amendment claim against the City Officers for their theft of the property after its lawful seizure.

That’s the case the Supreme Court didn’t want to hear. And not a justice of the Court deemed it worthy to dissent.