and Submitted December 18, 2018 San Francisco, California
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
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.;
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
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.
M. Neily III and Jay R. Schweikert, Washington, D.C., as and
for Amicus Curiae The Cato Institute.
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
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
Before: MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, Circuit
Judges, and JANE A. RESTANI, [*] Judge.
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.
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.
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
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."
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.
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. ...