Washington, D.C. — The New Civil Liberties Alliance (NCLA) today filed an amicus brief in support of rehearing en banc in Jessop v. City of Fresno. It asks the U.S. Court of Appeals for the Ninth Circuit to decide whether it violates the Fourth Amendment’s protection from unreasonable searches and seizures for the police, while executing an otherwise valid search warrant, to steal a suspect’s cash and personal property.

The section 1983 lawsuit against several Fresno police officers claims that they seized over $275,000 in cash and rare coins, but only logged $50,000 in seized currency into evidence—apparently stealing the rest for themselves. A panel of Ninth Circuit judges affirmed dismissal of the case on qualified immunity grounds. “Qualified immunity” is a judicially created doctrine that protects government employees from lawsuits unless they violate a constitutional right that has previously been “clearly established.” Even though the theft of over $225,000 “is undoubtedly deeply disturbing[,]” the judges held it “is not obvious” that such a theft violates the Fourth Amendment. They also refused to decide prospectively whether such theft by the police would violate it.

NCLA’s brief argues that the panel failed to recognize that current qualified immunity jurisprudence required it to determine whether a constitutional right would have been violated on the facts alleged. By deeming the constitutional violation not “clearly established” and simultaneously refusing to clearly establish it, the panel decision undermines the utility of section 1983 lawsuits as a deterrent to deprivations of federal constitutional rights. Worse yet, it likely prevents the constitutional question from being answered anytime soon. As is, the precedent deters any future plaintiffs from bringing (futile) lawsuits and deters future district courts from trying a case where the defendant’s immunity from suit is already well settled.

The Ninth Circuit should hear this case en banc and require lower courts not to skip steps in their qualified immunity analysis where constitutional law may require elaboration from case to case. If it does not, the Ninth Circuit might have a hard time finding another case coming up from the district court with enough factual development to enable it to decide this constitutional question in the future.

“It should go without saying that police officers who steal under the cover of a search warrant violate a suspect’s Fourth Amendment rights. By choosing not to decide whether police-theft violates the Constitution, the Ninth Circuit transformed qualified immunity into absolute impunity. The Ninth Circuit must rehear the case to fix the ‘anti-precedent’ that will be created if they allow Jessop to remain unchanged.”
Michael P. DeGrandis, Senior Litigation Counsel, NCLA

“By choosing not to decide, the Ninth Circuit has still made a choice. The terrible incentives this precedent creates are hard to overstate. It encourages police officers to steal, plaintiffs to forgo suing over the theft, and district courts to terminate any lawsuits that are brought. The Ninth Circuit needs to hear this case en banc, not only to conserve judicial resources in the long run, but also to salvage its judicial reputation today.”
Mark Chenoweth, General Counsel, NCLA


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
For more information visit us online at: NCLAlegal.org.