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Jessop v. City of Fresno

United States Court of Appeals, Ninth Circuit

September 4, 2019

Micah Jessop; Brittan Ashjian, Plaintiffs-Appellants,
v.
City of Fresno; Derik Kumagai; Curt Chastain; Tomas Cantu, Defendants-Appellees.

          Argued and Submitted December 18, 2018 San Francisco, California

          Appeal from the United States District Court No. 1:15-cv-00316-DAD-SAB for the Eastern District of California Dale A. Drozd, District Judge, Presiding

          Kevin G. Little, Esquire, Law Office of Kevin G. Little, Fresno, California; Neal K. Katyal, Colleen E. Roh Sinzdak, and Mitchell P. Reich, Hogan Lovells U.S. LLP, Washington, D.C.; for Plaintiffs-Appellants.

          Daniel P. Barer, Pollak Vida & Barer, Los Angeles, California; Peter J. Ferguson and Allen Christiansen, Ferguson Praet & Sherman APC, Santa Ana, California; Kevin M. Osterberg, Haight Brown & Bonesteel LLP, Riverside, California; for Defendants-Appellees.

          Jessica Ring Amunson and Andrew C. Noll, Jenner & Block LLP, Washington, D.C., for Amici Curiae The DKT Liberty Project, Reason Foundation, Individual Rights Foundation, Public Justice, National Police Accountability Project, Law Enforcement Action Partnership, Institute for Justice, and Americans for Prosperity.

          Clark M. Neily III and Jay R. Schweikert, Washington, D.C., as and for Amicus Curiae The Cato Institute.

          C. Mitchell Hendy, Mayer Brown LLP, Los Angeles, California; Donald M. Falk, Mayer Brown LLP, Palo Alto, California; for Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union of Northern California, and American Civil Liberties Union of Southern California.

          Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amici Curiae Restore the Fourth, Inc. and Americans for Forfeiture Reform.

          Jonathan F. Mitchell, Mitchell Law PLLC, Austin, Texas; Mark Chenoweth, Michael P. DeGrandis, and Caleb Kruckenberg, New Civil Liberties Alliance; for Amicus Curiae New Civil Liberties Alliance.

          Before: MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, [*] Judge.

         ORDER AND OPINION

         SUMMARY[**]

         Civil Rights

         The panel withdrew its prior opinion, found at Jessop v. City of Fresno, 918 F.3d 1031 (9th Cir. 2019), and filed a superseding opinion in its place.

         The panel affirmed the district court's order granting the City of Fresno police officers' motion for summary judgment in an action alleging that the officers violated the Fourth and Fourteenth Amendments when they stole Appellants' property during the execution of a search and seizure pursuant to a warrant.

         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. The panel reasoned that although the decision in Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017) was instructive on the question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to the warrant, violates the Fourth Amendment, Brewster's facts varied in legally significant ways from those in this case. Moreover, the panel noted that the City Officers seized Appellants' property in 2013, prior to the Brewster decision in 2017. The panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment. The panel further held that the Fourth Circuit's unpublished decision in Mom's Inc. v. Willman, 109 Fed.Appx. 629, 636- 37 (4th Cir. 2004)-the only case law that the time of the incident holding that the theft of property pursuant to a warrant violates the Fourth Amendment-did not put the "constitutional question beyond debate."

         Specially concurring, Judge M. Smith wrote separately to share his view of why, even if Brewster were decided before the City Officers' alleged theft, it was not clear that the City Officers violated the Fourth Amendment.

         ORDER

         The prior opinion in this case, found at Jessop v. City of Fresno, 918 F.3d 1031 (9th Cir. 2019), is hereby withdrawn. A superseding opinion will be filed concurrently with this order. ...


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