Micah Jessop v. City of Fresno

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICAH JESSOP; BRITTAN No. 17-16756

ASHJIAN,

Plaintiffs-Appellants, D.C. No.

1:15-cv-00316-DAD-

v. SAB

CITY OF FRESNO; DERIK

KUMAGAI; CURT CHASTAIN; ORDER AND

TOMAS CANTU, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 18, 2018

San Francisco, California

Filed September 4, 2019

Before: MILAN D. SMITH, JR., JACQUELINE H.

NGUYEN, Circuit Judges, and JANE A. RESTANI,*

Judge.

*

The Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.

2 JESSOP V. CITY OF FRESNO

Order;

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Milan D. Smith, Jr.

SUMMARY **

Civil Rights

The panel withdrew its prior opinion, found at Jessop v.

City of Fresno, 918 F.3d 1031 (9th Cir. 2019), and filed a

superseding opinion in its place.

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

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

JESSOP V. CITY OF FRESNO 3

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.”

Specially concurring, Judge M. Smith wrote separately

to share his view of why, even if Brewster were decided

before the City Officers’ alleged theft, it was not clear that

the City Officers violated the Fourth Amendment.

COUNSEL

Kevin G. Little, Esquire, Law Office of Kevin G. Little,

Fresno, California; Neal K. Katyal, Colleen E. Roh Sinzdak,

and Mitchell P. Reich, Hogan Lovells US LLP, Washington,

D.C.; for Plaintiffs-Appellants.

4 JESSOP V. CITY OF FRESNO

Daniel P. Barer, Pollak Vida & Barer, Los Angeles,

California; Peter J. Ferguson and Allen Christiansen,

Ferguson Praet & Sherman APC, Santa Ana, California;

Kevin M. Osterberg, Haight Brown & Bonesteel LLP,

Riverside, California; for Defendants-Appellees.

Jessica Ring Amunson and Andrew C. Noll, Jenner & Block

LLP, Washington, D.C., for Amici Curiae The DKT Liberty

Project, Reason Foundation, Individual Rights Foundation,

Public Justice, National Police Accountability Project, Law

Enforcement Action Partnership, Institute for Justice, and

Americans for Prosperity.

Clark M. Neily III and Jay R. Schweikert, Washington, D.C.,

as and for Amicus Curiae The Cato Institute.

C. Mitchell Hendy, Mayer Brown LLP, Los Angeles,

California; Donald M. Falk, Mayer Brown LLP, Palo Alto,

California; for Amici Curiae National Association of

Criminal Defense Lawyers, American Civil Liberties Union

of Northern California, and American Civil Liberties Union

of Southern California.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis,

Minnesota, for Amici Curiae Restore the Fourth, Inc. and

Americans for Forfeiture Reform.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, Texas;

Mark Chenoweth, Michael P. DeGrandis, and Caleb

Kruckenberg, New Civil Liberties Alliance; for Amicus

Curiae New Civil Liberties Alliance.

JESSOP V. CITY OF FRESNO 5

ORDER

The prior opinion in this case, found at Jessop v. City of

Fresno, 918 F.3d 1031 (9th Cir. 2019), is hereby withdrawn.

A superseding opinion will be filed concurrently with this

order. Plaintiffs-Appellants’ petition for rehearing en banc

remains pending.

OPINION

M. SMITH, Circuit Judge:

Micah Jessop and Brittan Ashjian (Appellants) appeal an

order granting a motion for summary judgment on a defense

of qualified immunity. City of Fresno and Fresno police

officers Derik Kumagai, Curt Chastain, and Tomas Cantu

(the City Officers) filed the motion in an action alleging that

the City Officers violated the Fourth and Fourteenth

Amendments when they stole Appellants’ property during

the execution of a search and seizure pursuant to a warrant.

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 are

entitled to qualified immunity.

FACTUAL AND PROCEDURAL BACKGROUND

As part of an investigation into illegal gambling

machines in the Fresno, California area, the City Officers

executed a search warrant at three of Appellants’ properties.

The warrant, signed by Fresno County Superior Court Judge

Dale Ikeda, authorized the

6 JESSOP V. CITY OF FRESNO

seiz[ure] [of] all monies, negotiable

instruments, securities, 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 . . . [and] [m]onies and records of

said monies derived from the sale and or

control of said machines.

If the City Officers found the property listed, they were “to

retain it in [their] custody, subject to the order of the court as

provided by law.”

Following the search, the City Officers gave Appellants

an inventory sheet stating that they seized approximately

$50,000 from the properties. Appellants allege, however,

that the officers actually seized $151,380 in cash and another

$125,000 in rare coins. Appellants claim that the City

Officers stole the difference between the amount listed on

the inventory sheet and the amount actually seized from the

properties.

Appellants brought suit in the Eastern District of

California alleging, among other things, claims against the

City Officers pursuant to 42 U.S.C. § 1983 for Fourth and

Fourteenth Amendment violations. The City Officers

moved for summary judgment based on qualified immunity.

The district court granted the motion and dismissed all of

Appellants’ claims.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review summary judgment determinations, and officers’

entitlement to qualified immunity, de novo. Glenn v.

Washington County, 673 F.3d 864, 870 (9th Cir. 2011).

JESSOP V. CITY OF FRESNO 7

ANALYSIS

“The doctrine of qualified immunity protects

government officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “In determining whether an officer is entitled to

qualified immunity, we consider (1) whether there has been

a violation of a constitutional right; and (2) whether that right

was clearly established at the time of the officer’s alleged

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th

Cir. 2014).

I. Fourth Amendment

The parties dispute whether the City Officers’ actions

violated the Fourth Amendment. The City Officers insist

that because they seized Appellants’ assets pursuant to a

valid warrant, they did not violate the Fourth Amendment.

Appellants, by contrast, argue that the City Officers’ alleged

theft was an unreasonable seizure under the Fourth

Amendment.

Although courts were formerly required to determine

whether plaintiffs had been deprived of a constitutional right

before proceeding to consider whether that right was clearly

established when the alleged violation occurred, see Saucier

v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court has

since instructed that courts may determine which prong of

qualified immunity they should analyze first. Pearson,

555 U.S. at 236. Addressing the second prong before the

first is especially appropriate where “a court will rather

quickly and easily decide that there was no violation of

8 JESSOP V. CITY OF FRESNO

clearly established law.” Id. at 239. This is one of those

cases.

A defendant violates an individual’s clearly established

rights only when “‘the state of the law’ at the time of an

incident provided ‘fair warning’” to the defendant that his or

her conduct was unconstitutional. Tolan v. Cotton, 572 U.S.

650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)). “We do not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). Thus, “[t]he contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[W]e

may look at unpublished decisions and the law of other

circuits, in addition to Ninth Circuit precedent.” Prison

Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005).

We have never addressed whether the theft of property

covered by the terms of a search warrant, and seized

pursuant to that warrant, violates the Fourth Amendment.1

The only circuit that has addressed that question—the Fourth

Circuit—concluded in an unpublished decision that it does.

See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th

Cir. 2004). Mom’s involved federal agents who failed to

return the plaintiff’s watch after the execution of a search

warrant. Id. at 633. Relying on the Supreme Court’s

1

Importantly, we observe that the technical legal question of

whether the theft of property covered by the terms of a search warrant,

and seized pursuant to that warrant, violates the Fourth Amendment is a

different question from whether theft is morally wrong. We recognize

that theft is morally wrong, and acknowledge that virtually every human

society teaches that theft generally is morally wrong. That principle does

not, however, answer the legal question presented in this case.

JESSOP V. CITY OF FRESNO 9

decision in United States v. Place, 462 U.S. 696 (1983), the

court reasoned that the Fourth Amendment “regulates all []

interference” with an individual’s possessory interests in

property, “not merely the initial acquisition of possession.”

Mom’s, 109 F. App’x at 637. Thus, because the agents’ theft

of the watch interfered with the plaintiff’s interest in it, “such

theft violates the Fourth Amendment.” Id.

Although we have not addressed this precise question,

our decision in Brewster v. Beck is instructive. 859 F.3d

1194 (9th Cir. 2017). There, officers impounded the

plaintiff’s vehicle pursuant to a statute that authorized the

seizure of vehicles when the driver had a suspended license.

Id. at 1195. When the plaintiff later “appeared at a hearing

. . . with proof that she was the registered owner of the

vehicle and her valid California driver’s license,” however,

the government refused to release the vehicle to her. Id. We

reasoned that the Fourth Amendment was implicated by the

government’s actions because “[t]he Fourth Amendment

doesn’t become irrelevant once an initial seizure has run its

course.” Id. at 1197. Because “[t]he exigency that justified

the seizure [of the plaintiff’s vehicle] vanished once the

vehicle arrived in impound and [the plaintiff] showed up

with proof of ownership and a valid driver’s license,” we

held that the government’s impoundment of the vehicle

“constituted a seizure that required compliance with the

Fourth Amendment.” Id. at 1196–97.

Brewster’s reasoning suggests that the City Officers’

alleged theft of Appellants’ property could also implicate the

Fourth Amendment. Although the City Officers seized

Appellants’ money and coins pursuant to a lawful warrant,

their continued retention—and alleged theft—of the

property might have been a Fourth Amendment seizure

because “[t]he Fourth Amendment doesn’t become

10 JESSOP V. CITY OF FRESNO

irrelevant once an initial seizure has run its course.” Id.

at 1197.

Brewster’s facts, however, vary in legally significant

ways from those in this case. Whereas Brewster concerned

the government’s impoundment of a vehicle, id. at 1195,

Appellants argue that the City Officers stole their property.

And while Brewster involved the seizure of property

pursuant to an exception to the warrant requirement, id.

at 1196, the City Officers seized Appellants’ property

pursuant to a warrant that authorized the seizure of the items

allegedly stolen.

Even if the facts and reasoning of Brewster would dictate

the outcome of this case, however, it was not clearly

established law when the City Officers executed the search

warrant. The City Officers seized Appellants’ property in

2013, but Brewster was not decided until 2017. For that

reason, we need not decide whether the City Officers

violated the Fourth Amendment. The lack of “any cases of

controlling authority” or a “consensus of cases of persuasive

authority” on the constitutional question compels the

conclusion that the law was not clearly established at the

time of the incident. Wilson v. Layne, 526 U.S. 603, 617

(1999). Although the City Officers ought to have recognized

that the alleged theft of Appellants’ 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. The Fourth Circuit’s unpublished

decision in Mom’s—the only case law at the time of the

incident holding that the theft of property seized pursuant to

a warrant violates the Fourth Amendment—did not put the

“constitutional question beyond debate.” al-Kidd, 563 U.S.

at 741.

JESSOP V. CITY OF FRESNO 11

Nor is this “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.” A.D.

v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013).

We recognize that the allegation of any theft by police

officers—most certainly the theft of over $225,000—is

deeply disturbing. Whether that conduct violates the Fourth

Amendment’s prohibition on unreasonable searches and

seizures, however, would not “be ‘clear to a reasonable

officer.’” Id. at 454 (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004) (per curiam)). 2

Appellants have failed to show that it was clearly

established that the City Officers’ alleged conduct violated

the Fourth Amendment. Accordingly, we hold that the City

Officers are protected by qualified immunity against

Appellants’ Fourth Amendment claim.

II. Fourteenth Amendment

Appellants’ Fourteenth Amendment claim suffers the

same fate. Appellants argue that the City Officers’ theft of

their property violated their substantive due process rights

under the Fourteenth Amendment. Assuming that to be true,

however, the City Officers are entitled to qualified immunity

because that right was not clearly established. We have not

held that officers violate the substantive due process clause

of the Fourteenth Amendment when they steal property

seized pursuant to a warrant. The Seventh Circuit is the only

2

As the district court recognized, such conduct might instead be

punishable under California tort law. Cf. United States v. Jakobetz,

955 F.2d 786, 802 (2d Cir. 1992) (“Jakobetz may be able to argue that a

New York court violated a statutory right under New York law.”).

12 JESSOP V. CITY OF FRESNO

circuit that has addressed the related question of whether the

government’s refusal to return lawfully seized property to its

owner violates the Fourteenth Amendment; it held that the

substantive due process clause does not provide relief

against that conduct. See Lee v. City of Chicago, 330 F.3d

456, 466–68 (7th Cir. 2003). Because the City Officers

could not have known that their actions violated the

Fourteenth Amendment’s substantive due process clause,

they are entitled to qualified immunity against Appellants’

Fourteenth Amendment claim.

CONCLUSION

We sympathize with Appellants. They allege the theft of

their personal property by police officers sworn to uphold

the law. If the City Officers committed the acts alleged, their

actions were morally reprehensible. Not all conduct that is

improper or morally wrong, however, violates the

Constitution. Because Appellants did not have a clearly

established Fourth or Fourteenth Amendment right to be free

from the theft of property seized pursuant to a warrant, the

City Officers are entitled to qualified immunity.

AFFIRMED.

M. SMITH, Circuit Judge, specially concurring:

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. I write separately to

share my view why, even if Brewster v. Beck were decided

before the City Officers’ alleged theft, it is not clear that the

JESSOP V. CITY OF FRESNO 13

officers violated the Fourth Amendment. 859 F.3d 1194 (9th

Cir. 2017).

Brewster’s reasoning appears to conflict with the

Supreme Court’s jurisprudence on Fourth Amendment

seizures. The Court has defined a seizure as “a single act,

and not a continuous fact.” Thompson v. Whitman, 85 U.S.

(18 Wall.) 457, 471 (1873). “From the time of the founding

to the present, the word ‘seizure’ has meant a ‘taking

possession.’” California v. Hodari D., 499 U.S. 621, 624

(1991) (quoting 2 N. Webster, An American Dictionary of

the English Language 67 (1828); 2 J. Bouvier, A Law

Dictionary 510 (6th ed. 1856); Webster’s Third New

International Dictionary 2057 (1981)). Whereas Brewster

held that the Fourth Amendment continues to apply after the

government’s initial seizure of property, these Supreme

Court cases suggest that, once the government has taken

possession of property, a seizure is complete. It is

“[p]ossession, which follows seizure, [that] is continuous.”

Thompson, 85 U.S. (18 Wall.) at 471.

Perhaps because of the Court’s case law, Brewster’s

reasoning also conflicts with that of several other circuits,

which have concluded that the Fourth Amendment provides

protection only against the initial taking of property, not its

continued retention. See Lee v. City of Chicago, 330 F.3d

456, 460–66 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d

342, 349–51 (6th Cir. 1999); see also Case v. Eslinger,

555 F.3d 1317, 1330 (11th Cir. 2009) (government’s

continued retention of seized property did not violate the

Fourth Amendment because the officer “had probable cause

to seize [the plaintiff’s] property”); United States v.

Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992) (government’s

continued retention of seized property implicates “a

14 JESSOP V. CITY OF FRESNO

statutory right under New York law,” not the Fourth

Amendment).

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.

As the opinion notes, Mom’s Inc. v. Willman is the only

decision to have held that the theft of property seized

pursuant to a warrant violates the Fourth Amendment.

109 F. App’x 629 (4th Cir. 2004). There, the Fourth Circuit

relied on United States v. Place, 462 U.S. 696, 706 (1983)

for the proposition that “[t]he Fourth Amendment regulates

all [] interference” with a person’s property interests, “not

merely the initial acquisition of possession.” Id. at 637.

In Place, the Court held that an officer’s reasonable

suspicion that property may be involved in a crime permits

the officer “to detain the luggage briefly . . . provided that

the investigative detention is properly limited in scope.”

Place, 462 U.S. at 706. After that brief amount of time has

passed, however, probable cause is required to justify an

officer’s continued seizure of the property. Id. at 709–10.

JESSOP V. CITY OF FRESNO 15

Place thus addresses when an investigatory seizure of

property might be reasonable when based on a level of

suspicion less than probable cause. The case is instructive

for how far officers can go in searching or seizing property

without probable cause. But Place is inapposite in a case

such as this in which officers have established probable

cause and obtained a warrant for the property that is seized.

Place, therefore, does not support the weight that Mom’s put

on it.

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. The Supreme Court was mindful of cases such

as this when it admonished courts not to resolve “difficult

and novel questions of constitutional . . . interpretation that

will ‘have no effect on the outcome of the case.’” Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Pearson v.

Callahan, 555 U.S. 223, 236–37 (2009)). We need not

attempt to reconcile the conflicting case law. As the panel

opinion acknowledges, the lack of clearly established law at

the time of the incident compels the conclusion that the City

Officers are entitled to qualified immunity.