On March 20, 2019, the United States Court of Appeals for the Ninth Circuit issued a somewhat perplexing and disturbing Fourth Amendment decision. At issue in Jessop v. City of Fresno, —- F.3d—-, 2019 WL 1271147 (9th Cir. Mar. 20, 2019), was whether police officers could be held liable under 42 U.S.C. 1983 for violating the plaintiffs’ Fourth Amendment rights by stealing, incident to a search warrant, $151,380 of cash and another $125,000 worth of rare coins while indicating on the inventory sheet that they only seized $50,000 from them.
The Court held that the officers were entitled to “qualified immunity,” a federal doctrine insulating police from liability where they can prove that they did not violate a “clearly established statutory or constitutional right of which a reasonable person would have known.” The Court reviewed cases from the Federal Courts of Appeal for the Second, Fourth, Sixth, Seventh and Eleventh Circuits, and because there was a lack of consensus on the issue, the Court held that the “right” was not clearly established and, therefore, the officers were entitled to qualified immunity.
However, a more careful look at the cases from the other Circuits, and from the United States Supreme Court, should have led the Ninth Circuit to the opposite decision. The only Circuit Court case directly on point was the one from the Fourth Circuit, Mom’s Inc. v. Willman, 109 F.App’x 629, 636-37 (4th Cir. 2004). There, relying on the United States Supreme Court’s decision in United States v. Place, 462 U.S. 696 (1983) (holding that the Fourth Amendment “regulates all interference” with an individual’s possessory interests in property), the Court decided that “federal agents violate the Fourth Amendment when they steal property that is seized during the execution of a search warrant.”
Unlike the Fourth Circuit decision, the other cases cited by the Ninth Circuit are not analogous. In each of those other cases, Case v. Eslinger, 555 F.3d 1317 (11th Cir. 2009); Lee v. City of Chicago, 330 F.3d 456 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342 (6th Cir. 1999), and U.S. v. Jakobetz, 955 F.2d 786 (2d. Cir. 1992), the issue was whether it violated the Fourth Amendment for the government to fail to return property that was legally seized and held by the government. Those cases did not involve property “stolen” by police under the guise of a search warrant and never actually turned over to the government to hold. Moreover, there, the Courts held that there was also no Fourteenth Amendment due process violation because there was an available post-deprivation remedy to file a petition for return of the property through the state court system. However, a petition for return of property would be a futile endeavor where the property was stolen by the police and is not in the possession of the government.
Given the Fourth Circuit’s decision in Mom’s, Inc., and that the Supreme Court has held that a “seizure” under the Fourth Amendment is any interference with an individual’s possessory interest in property, Place, supra, the Ninth Circuit should have come to the opposite conclusion.
In addition, contrary to the Ninth Circuit’s decision, and even if the Fourth Circuit decision did not exist, this issue also appears to be “one of those rare case in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that [a court] must conclude … that qualified immunity is inapplicable, even without a case directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013). Simply put, it is plainly obvious to any reasonable police officer that stealing money and valuable coins from an arrestee and not placing them on a property receipt is an interference with that person’s possessory interest in property and a violation of the Fourth Amendment.
Hopefully, the plaintiffs in Jessop seek review by the United States Supreme Court, the Supreme Court agrees to hear the case, and the Court reverses the decision of the Ninth Circuit.