Cops Accused of Stealing Over $225,000 Can't Be Sued, Thanks to Qualified Immunity

A court ruled that officers did not have enough information to know whether or not stealing violates the Constitution.

The U.S. Ninth Circuit Court of Appeals has ruled that Fresno police officers accused of stealing more than $225,000 while executing a search warrant are protected by qualified immunity and thus cannot be sued over the incident.

While the unanimous panel acknowledged that "the City Officers ought to have recognized that the alleged theft was morally wrong," it concluded that they "did not have clear notice that it violated the Fourth Amendment." In other words, the cops weren't equipped with enough information to deduce that robbing people is a violation of their constitutional rights against unreasonable searches and seizures—a bizarre interpretation of the law, to say the least.

In 2013, the Fresno Police Department carried out a raid on Micah Jessop and Brittan Ashjian, who were suspected of operating illegal gambling machines. (Neither man was ever charged.) Upon completing the search, officers provided both with a ledger maintaining that they'd seized $50,000; Jessop and Ashjian allege that, in reality, the cops made off with $151,380 in cash and $125,000 in rare coins. Both men contend that the officers pocketed the difference between the funds reported with the warrant and the total amount they took, amounting to a $226,380 theft.

Even so, the panel granted qualified immunity—a legal doctrine that, in the words of Reason's C.J. Ciaramella, "allows public officials to violate a constitutional right" so long as that right has not been "clearly established" by current case law. In theory, it protects civil servants from undue harassment; in practice, it allows those officials to get away with behavior that would land a normal person in prison.

Writing for the panel, Circuit Judge Milan D. Smith, Jr. cited Brewster v. Beck, a Ninth Circuit precedent, as insufficiently applicable to the Fresno case. In that decision, the court ruled that officers who impounded a vehicle in an asset forfeiture seize—another repugnant practice—violated a woman's Fourth Amendment rights after she furnished a valid California driver's license and registration. (The police seized the car because she had a suspended license.)

But that doesn't pass muster here, said Smith. "Brewster," he wrote, "involved the seizure of property pursuant to an exception to the warrant requirement." But in Jessop v. City of Fresno, the officers "seized Appellants' property pursuant to a warrant that authorized the seizure of the items allegedly stolen." Smith also argues that the former case pertains to impoundment while the latter surrounds theft. That renders the decision a useless comparison, he says—notwithstanding the fact that outright stealing is arguably a more offensive transgression.

But the nail in the coffin is that Brewster was decided in 2017, four years after the Fresno officers allegedly robbed Jessop and Ashjian. Even if the precedent adequately aligned with Jessop, Smith argues, the officers didn't have that case law to guide them. Smith rejected the plaintiffs' Fourteenth Amendment claims on similar grounds, writing that the Ninth Circuit has "not held that officers violate the substantive due process clause of the Fourteenth Amendment when they steal property seized pursuant to a warrant."

Well, at least cops won't be able to use that excuse any more—right? I'm afraid not. The judges demurred at the opportunity to issue a definitive ruling on whether the Fresno police violated Jessop and Ashjian's rights, leaving the door open for another public servant to come along and do the very same thing.