Washington, DC (March 11, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights organization, today filed an amicus curiae brief in support of Micah Jessop and Brittan Ashjian’s request for a Writ of Certiorari from the U.S. Supreme Court in Jessop v. City of Fresno, et al. The two Fresno businessmen are asking the justices to decide that it violates their Fourth Amendment right to be free from unreasonable searches and seizures for police officers to steal from them while executing a search warrant. They are appealing from a Ninth Circuit Court of Appeals decision that granted the officers qualified immunity from being sued on the theory that the officers may not have known that their conduct was unconstitutional.

Jessop and Ashjian, who operated an automated teller machine business, sued the City of Fresno and officers Derik Kumagai, Curt Chastain, and Tomas Cantu under 42 U.S. Code § 1983—which allows Americans to sue government officials civilly for the deprivation of their constitutional rights. The business partners claimed the officers took more than $275,000 in cash and a rare coin collection from them during a 2013 raid of their business and Jessop’s home, but only logged $50,000 in seized currency into evidence.

NCLA believes the Ninth Circuit misapplied the Supreme Court’s Saucier standard for analyzing the qualified immunity defense, which follows a two-step process. First, the court is supposed to ask whether the victim has alleged a harm to his or her actual constitutional rights. Second, the court should ask whether the right was “clearly established” such that the police officer (or other state actor) knew that his or her conduct would violate constitutional rights. In 2009, though, the Supreme Court changed course in the case of Pearson v. Callahan, where it held that a court may skip the first step in rare circumstances and grant immunity to the state actor by just finding that the right in question was not clearly established.

In this case, the Ninth Circuit skipped the first step. But the Pearson Court said that where the development of constitutional law needs a court to decide something—such as whether the police violated a constitutional right—a court must decide that issue. By instead refusing to resolve whether the theft of property seized pursuant to a warrant is unreasonable under the Fourth Amendment, the Ninth Circuit decision effectively granted immunity to all officers throughout the Ninth Circuit accused of theft in the future.

NCLA’s brief said that the Supreme Court should summarily reverse the Ninth Circuit’s decision in Jessop, or else revisit Pearson to clarify and limit when courts may skip deciding whether plaintiffs have alleged a deprivation of their civil rights.

NCLA released the following statements upon filing its amicus brief:

“It should be blatantly obvious to police that using a search warrant as a Trojan Horse to steal $225,000 was—and always will be—an unreasonable seizure under the Fourth Amendment. But it should be equally obvious to the Ninth Circuit that if that right is not clearly established, it’s the Ninth Circuit’s duty to establish it clearly for future application.”
—Michael P. DeGrandis, Senior Litigation Counsel, NCLA

“By missing the obvious, the Jessop judges created a giant mess under which police officers throughout the Ninth Circuit will enjoy qualified immunity to steal from suspects. The Supreme Court justices do not like to stoop to error correction, but the consequences here are just too dire. This case cries out for summary reversal.”
—Mark Chenoweth, General Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

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Washington, DC (May 13, 2019) – 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

ABOUT 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.