Short Take: Stealing From Jessop, Still Fine

In the universe of dumb qualified immunity decisions, which sadly is a huge, HUGE, universe, Jessop v. Fresno stands out.

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from Appellants’ properties. Appellants alleged, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants alleged that the City Officers stole the difference between the amount listed on the inventory sheet and the amount actually seized from the properties.

The panel held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity.

Yes, you read that right. The cops executing the search warrant stole about $225,000 of seized items and they were granted qualified immunity because there was no “clearly established law” holding they can’t steal stuff they seize. Who knew that was wrong? How could cops possibly realize that using their law enforcement authority to steal would be frowned upon. Surely, we can’t expect that much of our highly professional police officers.

But that’s all old news. What’s new is that Supreme Court denied the petition for cert.


The motion of Institute for Justice for leave to file a brief as amicus curiae is granted. The motion of Cato Institute, et al. for leave to file a brief as amici curiae is granted. The motion of New Civil Liberties Alliance for leave to file a brief as amicus curiae is granted. The motion of
National Association of Criminal Defense Lawyers for leave to file a brief as amicus curiae is granted. The motion of Constitutional Accountability Center for leave to file a brief as amicus curiae is granted. The motion of DKT Liberty Project, et al. for leave to file a brief as amici curiae is granted.

The petition for a writ of certiorari is denied.

Amici galore, all granted. Cert? Not so much. No fiery dissent by Ruth Bader Ginsburg or Sonia Sotomayor. Not even Clarence Thomas, raising the possibility that qualified immunity was a tragic mistake pushed by the living constitutionalists. Just the terse “denied.”

The ACLU had nothing to say about it, perhaps because they weren’t getting a slice of the money no matter what, although Reason did.

So it goes with qualified immunity, a legal doctrine that shields public officials from certain civil lawsuits as long as their misconduct has not been explicitly spelled out in pre-existing case law. The Supreme Court yesterday declined to hear that case, Jessop v. Fresno, along with two other cases pertaining to qualified immunity.

Jessop has all the baffling characteristics so often at the center of qualified immunity rulings. Amid the absence of a near-identical court precedent, we’re supposed to believe that the officers in question could not have been aware that their conduct was constitutionally dubious.

Why wouldn’t the Supreme Court, if it had any interest in righting this absurd wrong, or in the alternative, wrapping up cops stealing in the course of a search as a matter of human dignity? Certainly a case of this sort, raising something that would be obvious to any child who attended Sunday school and made it through the ten commandments, would recognize as a bad thing to do, deserves a spot on the docket.

Perhaps the answer lies in Circuit Judge Milan Smith’s special concurrence.

As the panel opinion recognizes, there is no question that the City Officers’ alleged conduct, if true, was morally reprehensible. Whether something violates the Fourth Amendment, however, is a different question from whether it is outrageous and morally wrong.

Whether stealing is morally reprehensible is the religious question. What about constitutionally reprehensible?

Here, the City Officers obtained a warrant that authorized them “[t]o seize all monies . . . or things of value furnished or intended to be furnished by any person in connection to illegal gambling or money laundering that may be found on the premises.” Accordingly, the warrant
permitted the City Officers to seize the money and rare coins that Appellants argue the City Officers stole from them.

Under the reasoning of the Supreme Court and several circuits cited above, therefore, Appellants’ Fourth Amendment claim appears to fail. Because the City Officers’ initial seizure of Appellants’ property was lawful, and because a Fourth Amendment seizure is complete after the government has taken possession of the property, Appellants would not be able to state a Fourth Amendment claim against the City Officers for their theft of the property after its lawful seizure.

That’s the case the Supreme Court didn’t want to hear. And not a justice of the Court deemed it worthy to dissent.

16 thoughts on “Short Take: Stealing From Jessop, Still Fine

  1. Skink

    Skink’s 14th Rule of Decision Interpretation: when something’s missing from the writin’, it ain’t lonely because there’s always something else missing.

    Neither the SJ order in the district nor the opinion mentions what happened to the seized cash not in dispute. Both mention only the receipt. Were they exonerated on the gambling charge and entitled to return of the goods? Isn’t that kind of a big missing thing?

    The QI defense becomes clear only when reading the SJ order because there’s stuff missing from the opinion. The plaintiffs brought only 4th and 14th Amendment unlawful seizure claims. Necessary is proof of a seizure. So, the QI question is whether stuff stolen following a lawful seizure is an additional seizure. The law says no–if the stuff was lawfully seized, then seizure is complete. If some of it was lost or stolen, it isn’t an additional seizure and the remedy is through tort, not constitutional, claims.

    If the Supreme Court is to fix QI, this isn’t the case suitable for the task.

    1. SHG Post author

      Now, about the viability of tort law for that gap between the completion of the seizure and the loot showing up in the evidence locker.

      1. Skink

        It’s a theft. I don’t know if they brought claims in state court because I ain’t that energetic. It just isn’t an additional seizure.

        It isn’t really a QI case because it fails the first prong: whether there was a constitutional violation. Sure, the defendants raised QI and the courts discussed it, but SJ was alternatively granted on the merits because there was no unlawful seizure.

        1. SHG Post author

          Some might argue that while the seizure is complete upon execution of the warrant, it’s also ongoing with the proper possession and maintenance of the seized property by the government. It’s not a second seizure, but the continuation of the first.

            1. SHG Post author

              In QI cases, true. And yet, they have no qualms when it comes to an ongoing conspiracy charge. It’s almost as if they’ve reinvented the parameters of constitutional rights to give extreme latitude to cops. Go figure.

  2. jeffrey gamso

    It’s a nearly complete aside, but the ACLU had (and I assume still does have, but I’m no longer in the loop) a truly stupid policy of refusing to file amicus briefs in support of cert. (And affiliates can’t file anything in SCOUTS without permission from the national office.

    And so, an irrelevant anecdote.

    The only exception I’m aware of came in a last-ditch capital appeal where we managed to convince then-Legal-Director Steve Shapiro to allow us to file one. It was on its way to the court when the plane crashed into the Pentagon and they shut the court for the day. And Ohio cancelled that evening’s execution so the cert petition itself was never filed.

    1. SHG Post author

      I wasn’t aware of the ACLU policy, so thanks for explaining. Whether it remains the police, I dunno. But without cert, there’s no merits brief. Kinda sucks the wind out of an issue if it never makes the docket.

      1. jeffrey gamso

        Why I said it was a stupid policy. I’d like to think David Cole rescinded it when he succeeded Shapiro as Legal Director, but my guess is that he didn’t.

        1. SHG Post author

          I often wonder where David Cole stands in all this. I wonder whether it’s hard for him to toe the party line these days. It must take a lot of effort.

  3. B. McLeod

    I think the Court is out of sparkling drops, and can’t grant any more certs until they get some retsyn.

  4. Howl

    Yes, as through this world I’ve wandered
    I’ve seen lots of funny men;
    Some will rob you with a six-gun,
    And some with a fountain pen.

  5. John Regan

    This was Neal Katyal’s petition. He argued only the 4th amendment, not due process, even though of course the case is dealing with a “deprivation” of property, which would kind of indicate due process territory.

    Maybe I’m a bit too conspiracy minded, but for many years now law enforcement, prosecutor and municipality defense groups have been trying to curtail the application of due process to willful government misconduct in criminal prosecutions and otherwise. One of the tactics of choice in a criminal case is to argue that such misconduct fits into the 4th amendment box, not the due process box.

    It all goes back to 1994’s Albright v. Oliver and has continued through 2009’s Pottawattamie County v. McGhee (which Katyal argued in the SCOTUS for the SG’s office) up through 2017’s Manuel v. City of Joliet and 2019’s McDonough v. Smith (which Katyal argued for the criminal defendant, but refusing to say whether his cause of action sounded in due process or any specific constitutional provision).

    There had been, for example, a bright line rule against deliberate lying and cheating by police or prosecutors in criminal prosecutions going back to 1935’s Mooney v. Holohan. But that has gotten very confused over the last 25-30 years, and Katyal has been a big part of that.

    There’s another pending SCOTUS petition right now that’s getting lots of attention, Farrar v. Williams (19-953) arguing that police or prosecutor knowledge or intent should not matter where convictions were obtained with perjured testimony. Hogan Lovells represents the Petitioner.

    That’s Neal Katyal’s firm.

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