Originally published in Forbes on June 18, 2019

Wide consequences will stem from the U.S. Court of Appeals for the Ninth Circuit’s recent decision granting qualified immunity to several Fresno, California police officers sued for theft. These consequences will prove hard to unwind unless the court—as it should—rehears the case en banc and fixes it now.

Imagine that a police officer, in the course of executing a lawful search warrant, stole money and other valuables from the place being searched. Do you expect that the theft victim would be able to sue the officer in federal court for violating the Fourth Amendment right to be free from an unreasonable search or seizure? Or do you think instead that the officer would enjoy “qualified immunity” from a lawsuit alleging deprivation of civil liberties because he had a search warrant?

The Ninth Circuit’s recent Jessop v. City of Fresno case delivered a surprising answer. In that jurisdiction, at least, the officer is immune from being sued under § 1983 (the federal statute authorizing lawsuits against government employees who deprive citizens of their civil liberties). Why? Because, according to that court, it was not “clearly established” law that a police officer could not steal from someone whose property is being searched. Come again?

Warrant or no warrant, theft is wrong. Police officers, of all people, should not need a court precedent to figure that out. But ignoring that obvious fact is not the worst aspect of the Ninth Circuit’s decision; the worst part is that the court reached that decision while still failing to establish a precedent that theft is wrong. So, because the Jessop precedent grants qualified immunity this time—and simultaneously holds that there is not a clear precedent forbidding police from stealing in the process of conducting a search—it will be very difficult for the Ninth Circuit ever to create such a precedent.

How did we get to this point? Ordinarily in such cases, a court first decides whether the facts alleged by the plaintiff violated any constitutional rights; then, if they did, the court asks if any right violated had been “clearly established” when the government official acted. Even if a government official’s conduct violates a constitutional right, the Supreme Court has decided that the official will enjoy “qualified immunity” from being sued unless the violated right was already clearly established, such that the official presumably knew full well that his conduct was violating the plaintiff’s rights.

This mandatory two-step process changed after the 2009 U.S. Supreme Court case Pearson v. Callahan. There the Court allowed—but did not require—lower courts to skip the first step of the analysis and just consider whether a right was clearly established, which is often the easier question to answer and thus may conserve judicial resources. The Jessop judges took this shortcut, reasoning that they did not have to decide whether the plaintiffs alleged a constitutional violation since (the court held) plaintiffs did not show that the officers’ conduct was a “clearly established” Fourth Amendment violation. The problem with this logic, as Jessop well illustrates, is that if the first step is bypassed once, there is hardly an opportunity for the question to crop up again.

To understand why, consider the effects that a “not clearly established” finding has on future police officers, theft victims, and courts. First, for an unscrupulous police officer, the Jessop ruling means the next time he steals while executing a search warrant, he will know for sure (and be able to cite Jessop as holding) that there is no clearly established precedent as to whether such police-theft violates a constitutional right.

Second, for future victims of police-theft, they will have little incentive to bring a § 1983 lawsuit to vindicate their civil rights. A well-counseled plaintiff will know that such a lawsuit would be futile with the Jessop precedent on the books, as a defendant’s qualified immunity is now nearly unassailable.

Third, even the courts themselves face a problem. If, despite the odds, a future plaintiff were to file a lawsuit, the court would not hear it. Qualified immunity is immunity from suit, which means that the court is not supposed to allow the proceeding to continue against the official for very long at all once the immunity is asserted and proved. At a minimum, that means that the district court will have a hard time developing sufficient facts to distinguish any future case from Jessop. Assuming that a future lawsuit eventually reaches the Ninth Circuit, the panel may have no choice but to skip step one, whether it wants to or not. Next time, there will not be enough factual development from the trial court to allow a future panel to figure out whether the police-theft in the execution of a search warrant violates the Constitution.

And so, having departed from the traditional two-step analysis of qualified immunity in Jessop, the Ninth Circuit may never be able to reverse course. This result stands the doctrine of stare decisis on its head. Rather than a case once decided staying decided, with Jessop a right whose existence is left undecided is very likely to remain undecided (and therefore deemed not to exist for § 1983 purposes) for a long time to come. Indeed, all of these effects will persist unless and until Jessop is overruled.

While the Supreme Court meant for the Pearson decision to conserve judicial resources, it turns out that was a myopic point of view.  It would instead save judicial resources—and salvage the Ninth Circuit’s reputation—to rehear this case en banc and prevent the panel’s shortcut from derailing justice. If the Ninth Circuit does rehear the case, it can either decide that police-theft was clearly established enough to deny qualified immunity to the officers who searched Jessop’s premises.  Or, failing that, the court could at least clarify that similar police-theft will not result in qualified immunity next time around.

Either way, the Ninth Circuit should not leave the Jessop anti-precedent in place. If it does, future victims of police-theft will think—correctly—that the courts themselves are responsible for letting the police get away with violating citizens’ constitutional rights. Jessop will have transformed careful consideration of whether a government official deserves qualified immunity into a rubber stamp of (unqualified) impunity.

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