In Jessop v. City of Fresno, published March 20, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers. As part of an investigation into illegal gambling machines, the officers obtained a search warrant for seizure of money and property related to the machines. The officers executed the warrant and seized money and property from the plaintiffs' properties. The officers provided the plaintiffs with an inventory of items seized. The plaintiffs contended that cash and rare coins seized were not reflected on the inventory sheet. The officers denied any difference. The plaintiffs sued the officers under 42 U.S.C. § 1983, alleging violation of their rights under the Fourth Amendment and their substantive due process rights under the Fourteenth Amendment. The district court granted the officers summary judgment based on qualified immunity.
The 9th Circuit agreed that the officers were entitled to qualified immunity. The Ninth Circuit has not addressed whether alleged theft of property lawfully seized under a search warrant violates the Fourth or Fourteenth Amendment. The circuits are split on the issue. The absence of any cases of controlling authority or a consensus of cases of persuasive authority on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. The court did not reach the issue of whether the alleged misconduct did violate the Fourth or Fourteenth Amendment.
***Update: On September 4, 2019, the 9th Circuit withdrew its opinion in Jessop and issued an amended opinion. The amended opinion took out the reasoning concerning the holdings in different circuits, and instead relied on the absence of binding authority establishing a Fourth or Fourteenth Amendment violation in 2013. In a concurring opinion, Judge Smith (who also wrote the majority opinion) opined that even post-incident 9th Circuit law did not establish that the alleged theft would violate the Fourth Amendment.
(Pollak, Vida & Barer represented the officers on appeal.)
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