Wednesday, September 04, 2019

Jessop v. City of Fresno (9th Cir. - September 4, 2019)

I wrote -- but didn't publish -- the following back in March.  I'll use all-caps when I'm back to the present day:


There are certain things that I would have thought would be totally straightforward.  Let me give you one of them:

The Constitution doesn't permit police officers to steal your property.

To be clear, I'm talking about actual theft.  They come into your home, take $50,000 from you, and put it in their pockets.

I'm uncertain whether that'd violate the Fourth Amendment as an unreasonable seizure.  I'm uncertain whether that'd violate the Fourteenth Amendment as a violation of substantive and/or procedural due process, or perhaps as a taking without just compensation.

But what I nonetheless feel confident about is that our Constitution does not permit state officers to come into your home, steal your money, and then go along their merry way.  I feel pretty strongly that the Founders did not think that such governmental conduct would be permissible under the principles our Republic was founded.

But the Ninth Circuit disagrees.

The facts are totally straightforward.  The police officers at issue execute a search warrant and seize some property pursuant to the warrant, and fill out an inventory form that says that they only took $50,000.  But the owners of the property say that the officers actually took over $150,000 in cash -- plus another $125,000 in rare coins -- and simply pocketed the difference.

To me, there's no way that government officials can do that consistent with the Constitution.  What's the point of the Fourteenth Amendment -- its just compensation clause, its protection of property, etc. -- if the government is permitted to simply take your property from you with utterly no remedy under our foundational principles?! It just doesn't make any sense.

But Judge Milan Smith -- joined by Judges Nguyen and Rastani (sitting by designation from the Court of International Trade -- holds that there's no federal remedy.  Because, to them, it's "unclear" whether the Constitution permits police officers to straight up steal your property, and hence there's qualified immunity.

No way.

To me, this is one of those cases "in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that we 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)."  For example, I'm sure there's no case on point that says that police officers can't turn you into a flea, or for you to parade naked during the Rose Bowl parade, or a whole plethora of other things that they obviously can't do.  Outright stealing from you is another one of those things that, to me, is so totally obvious that there doesn't need to be a case.  And I'm sure even the police would agree with that principle.  You can't steal.  That's obvious.  Full stop.


Now, today, the Ninth Circuit amends its opinion.  Among other things, Judge Smith -- who authored the unanimous panel opinion -- adds a concurrence that explains that while the result is unfortunate, and while it might appear "at first blush" that this is an obvious violation of the Constitution, that's just not true when one looks in more detail.

Respectfully, though, I think no manner how closely you look, one's intuition here stands.  You can't steal, and everyone knows it.

I'm also not persuaded by the concurrence's argument that since the warrant authorized the officers to take all the money, and that's what they did, no right was violated since the Fourth Amendment only protects the initial seizure, not what happens thereafter.  I think that slices the meat far too thinly.  It's one think to take your property and put it in a court, where you can potentially get it back.  But to flat out steal that property is another.  The rights deprivation resulting from the latter is far more serious than the former.  Moreover, even if this out-of-circuit precedent is right, and the Fourth Amendment doesn't stop the police from stealing your stuff, then I feel fairly confident that other portions of the Constitution -- the Fourteenth Amendment comes to mind -- do.

Maybe the Framers thought:  "We want to make sure that the government doesn't store an army horse in someone's house, and that it doesn't take someone's property without paying for it, but if the state comes into your house and steals all your money, we're fairly cool with that."

But I doubt it.