Originally published in Bloomberg Law on June 17, 2019

Fresno, Calif., police officers may have just gotten away with grand larceny. The Ninth Circuit recently passed on the opportunity to establish—once-and-for-all—that police officers stealing private property while executing a search warrant is, in fact, unconstitutional.

The Jessop v. City of Fresno case brings to light a doctrine called “qualified immunity,” which may have allowed corrupt cops to steal property without facing constitutional consequences.

Qualified immunity protects state workers, like the police, from civil rights lawsuits. The logic runs that even if an officer does something that some may consider unfair or wrong, if he or she does not violate a citizen’s rights, or if a reasonable officer doesn’t have notice that he or she acted unconstitutionally, the officer should be protected from a lawsuit. In other words, police who act in good faith are shielded from lawsuits, but police who knowingly violate constitutional rights, are not.

That’s the way qualified immunity should work, but in this case, the Ninth Circuit balked.

In 2013, Fresno police obtained a search warrant for evidence of an illegal gambling operation allegedly run by Micah Jessop and an associate. The police seized $275,000, including $125,000 in collectible coins. No charges were filed against Jessop or his associate, but the evidence inventory reflected just $50,000—and no coins.

Fourth Amendment Claim

Jessop sued the police for stealing his money and property, arguing that the theft violated his Fourth Amendment right to be free from unreasonable search and seizure. The police insisted that because they seized Jessop’s assets with a valid search warrant, they were immune from being sued.

In analyzing the officer’s immunity claim, the court didn’t decide whether the act of police-theft violated Jessop’s rights. Instead, the Ninth Circuit held only that there were not enough existing court decisions regarding whether such conduct violates the Fourth Amendment. And just like that, the Ninth Circuit granted the officers qualified immunity and dismissed Jessop’s lawsuit.

By passing on whether police-theft is unconstitutional, the Ninth Circuit turned one bad decision into an ongoing constitutional conundrum.

Constitutional Ignorance is Bliss

Courts were formerly required to determine first whether plaintiffs had been deprived of a constitutional right before proceeding to consider whether that right was “clearly established.” In 2009, the U.S. Supreme Court decided that it is in a courts’ discretion as to which step of qualified immunity should be analyzed first, before expending “scarce judicial resources.”

In Jessop, the Ninth Circuit missed a key point, though—while the Supreme Court permitted step-skipping in some instances, it held that it isn’t appropriate in everyinstance. By simultaneously refusing to decide whether Jessop had a constitutional right at all and deciding that the constitutional right was “not clearly established,” the court ensured that the right may never be clearly established for anyone in the future.

The irony should be apparent. There is now a settled void in the law—precedent has established that there is no precedent in the Ninth Circuit deeming police-thefts unconstitutional. Thus, lower courts are duty-bound to dismiss similar cases against the police, which in turn discourages victims from bringing civil rights lawsuits, given the futility of doing so. This also encourages bad police behavior with little hope of ever being reviewed.

The Ninth Circuit Should Rehear the Case

Shielding police who knowingly violated the law turns civil rights litigation on its head. The Jessop decision is patently inconsistent with qualified immunity’s intention to protect only the police’s good faith mistakes. Here, police who knowingly violated the law will not face constitutional sanction for their illegal behavior—that’s not how qualified immunity is supposed to work.

Even if it’s not obvious to the Ninth Circuit that police-theft violates the Fourth Amendment, deciding both questions—whether a right exists and whether it is clearly established—will facilitate the development of constitutional law. Ongoing development of the law is essential to delineating the boundaries of constitutional conduct and reinvigorating litigation as a tool for vindicating our civil rights when state actors deprive us of them.

The Ninth Circuit still has a chance to get civil rights litigation back on track—the full court should rehear Jessop and reverse its course in qualified immunity cases by always deciding both whether a right exists and whether it is clearly established.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Michael P. DeGrandis is senior litigation counsel at the New Civil Liberties Alliance, a nonprofit civil rights organization that filed an amicus brief in support of the appellant’s petition for rehearing.