A warrant to steal?

Some things are obvious to anyone but a court.

A police officer executes a search warrant, seeking evidence of an illegal, coin-operated business. During the search, the officer not only seizes bags of contemporary quarters, but also helps himself to a collection of old and foreign coins. The inventory for the search, however, tells only part of the story, listing only about a third of the quarters. The inventory doesn't list the old coins at all.

After the criminal matter is resolved, the former defendant sues for the return of all the property that was seized, not just the fraction that was inventoried. Can the officer claim qualified immunity from suit on the ground that no clearly established law makes clear that the outright theft of private property is an "unreasonable ... seizure[]" within the meaning of the Fourth Amendment?

Absolutely, said a panel of the 9th U.S. Circuit Court of Appeals. Doubling down on an earlier opinion in the same case, the 9th Circuit held on Sept. 5 in Jessop v. City of Fresno, 2019 DJDAR 8549, that officers accused of stealing more than $200,000 could not be subjected to civil liability. In the court's view, a reasonable officer wouldn't clearly understand that he couldn't use his position to steal property seized under a search warrant, and upheld the dismissal of a Section 1983 case seeking damages for the stolen property.

The background of Jessop is simple. Jessop had a vending machine business, but was suspected of money laundering and running illegal gambling machines. Fresno police obtained a warrant to search his home and business for evidence of those crimes. The search inventory listed only about $50,000 in cash, but Jessop alleges that the officers took more than $150,000 in cash and $125,000 in old and rare coins. Jessop eventually pleaded no contest to some charges and forfeited the $50,000. He had no luck when he tried to get the rest of the coins and cash back from the police, and accordingly sued under 42 U.S.C. Section 1983, claiming that the theft violated the Fourth Amendment prohibition of unreasonable searches and seizures.

The district court held that, in the absence of a decision squarely holding that theft of the seized material makes the seizure unconstitutionally unreasonable, the officers were immune from civil liability. A unanimous 9th Circuit panel affirmed.

In more ways than one, the 9th Circuit's decision is a triumph of technicality over common sense. A police officer is entitled to qualified immunity from civil liability for a constitutional violation unless clearly established law made clear that the challenged conduct was unconstitutional. Until the Supreme Court's 2009 decision in Pearson v. Callahan, courts addressing assertions of qualified immunity routinely decided whether the alleged conduct was unconstitutional before deciding whether the unconstitutionality was clearly established by precedent. Pearson, however, allows lower courts to decide whether clearly established law revealed the unconstitutionality of the conduct without deciding whether the conduct was actually constitutional.

The 9th Circuit took advantage of this flexibility here. The decision deplored the unsavory allegations, and took pains to acknowledge that "theft is morally wrong." But the panel refused to say that stealing during a search and seizure pursuant to a warrant violated the Fourth Amendment. Instead, the court simply said that existing decisions did not clearly establish a violation. Those decisions included an unpublished 4th Circuit decision that was directly on point and a 9th Circuit decision (Brewster v. Beck) finding a violation in the continued impoundment of a car after the owner had disproved the reason for impoundment. The 4th Circuit opinion was too obscure and the 9th Circuit decision came too late, after the conduct in Jessop. And the panel held that stealing seized money was not so obvious a violation as to excuse the lack of on-point precedent that could warn officers of the constitutional dimension of their theft.

Even this was too much for Judge Milan Smith, who specially concurred in order to say that Brewster was wrong, and that under precedent from the Supreme Court and other circuits the constitutionality of a seizure had to be assessed when property was first seized, not based on anything that happened later.

The 9th Circuit was wrong to suppose that the issue was not obvious enough to be clearly established even without precedent on point. Under the Fourth Amendment, all that a warrant permits is a reasonable search and seizure. A seizure conducted in part to steal cash is as unreasonable as they come. And in this case, at least, the theft seems to have occurred upon the initial seizure. The complaint alleges that the stolen property was not even inventoried, suggesting that there was never any intent to use the property for legitimate law enforcement purposes.

Although the panel amended its opinion in response to Jessop's rehearing petition, the petition for rehearing en banc remains pending. This case demonstrates the social costs of the Pearson decision. While any layperson might find the unconstitutionality of theft-by-warrant obvious, there will never be any clearly established law to that effect -- or to the contrary effect -- so long as no court ever needs to decide constitutionality. 

Donald co-authored an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the case discussed above, but the views expressed here are his alone, and not those of his firm or client.