“It Isn’t Clearly Established….” That Stealing Is Theft.

The Institute for Justices puts out a weekly newsletter called “Short Circuit” which is a review of some of the more “interesting” cases Federal Circuit Courts hand down. It literally is one of the highlights of our Friday afternoons when Short Circuit hits our mailbox. We highly recommend that you sign up for it.
One of the cases that Short Circuit focused on several weeks ago is “MICAH JESSOP; BRITTAN ASHJIAN v. CITY OF FRESNO; DERIK KUMAGAI; CURT CHASTAIN; TOMAS CANTU

Officers Kumagai, Chastain and Cantu of the Fresno Police Department executed a search warrant on three properties owned by Jessop and Ashjian as part of an investigation into illegal gambling machines. The warrant allowed for the:

…seiz[ure] [of] all monies, negotiable instruments, securities, or things of value furnished or intended to be furnished by any person in connection to illegal gambling or money laundering that may be found on the premises … [and] [m]onies and records of said monies derived from the sale and or control of said machines.

It is here the fun begins. According to the opinion of the Ninth Circuit Court of Appeals:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

Jessop and Ashjian sued to get their property back.

The officers claimed “sovereign immunity” and wanted the case dismissed.

“Sovereign immunity” is the theory in law that government officials in the normal course of their work cannot be sued as individuals for their actions unless they know that the actions clearly violate the law at the time of the incident.

In someways, the theory makes sense as if every officer or official had to defend in court every lawsuit against them, the time, effort and money wasted would be enormous. People could simply harass police and officials with lawsuits that are without merit in the long run.

According to the Legal Information Institute at Cornell University:

Qualified immunity is a type of legal immunity. Qualified immunity “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan .

Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. Accordingly, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery.

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

Surely everyone knows it is wrong and against the law to steal, right? Even if you have a search warrant and are to seize property as evidence, taking that evidence has to be a crime right?


The panel determined 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 that is seized pursuant to a warrant. The panel noted that the five other circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violated the Fourth Amendment, had reached different results. The panel held that in the absence of binding authority or a consensus of persuasive authority on the issue, Appellants failed to demonstrate that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, the panel held that the City Officers were entitled to qualified immunity.

The Court wrote:

The Second, Sixth, Seventh, and Eleventh Circuits have held that the government’s failure to return property seized pursuant to a warrant does not violate the Fourth Amendment. Some of these courts have reasoned that because “the word ‘seizure’ [has been] defined as a temporally limited act,” the Fourth Amendment provides protection only against the initial taking of property, not its continued retention. Lee, 330 F.3d at 462; accord Fox, 176 F.3d at 351 “[T]he Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property.”). Others have said that the failure to return seized property to its owner does not implicate the underlying rationales of the Fourth Amendment. Jakobetz, 955 F.2d at 802

The Fourth Circuit, on the other hand, has held that federal agents violate the Fourth Amendment when they steal property that is seized during the execution of a search warrant. Mom’s Inc., 109 F. App’x at 637. The court relied on the Supreme Court’s decision in United States v. Place, 462 U.S. 696, 706 (1983), and reasoned that the Fourth Amendment “regulates all [] interference” with an individual’s possessory interests in property, “not merely the initial acquisition of possession.” Id. Thus, because the agents’ theft of the plaintiff’s watch interfered with the plaintiff’s interest in it, “such theft violates the Fourth Amendment.”

The problem with this analysis is that the allegation is not that the officers seized the missing $226,380, but that they stole it. It is one thing for the police to say “we took roughly $270,000 in cash and coins to the property room where they will be held as evidence until a trial” and “we took roughly $50,000” with the difference going into their pockets.

The fact that this case can’t even get to court is troubling on many levels.

Everyone know that stealing is wrong and a crime – unless the thieves are cops and the courts protect them.

The CATO Institute has a website called Unlawful Shield dedicated to the issue of sovereign immunity and the need for it to be scaled back, revisited or abolished. They have filed an amicus brief for the Supreme Court to hear the case of of I.B. and Doe v. Woodard.

When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 suit against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in Safford Unified School District No. 1 v. Redding. In Safford, the Court even said it was seeking “to make it clear” that an intrusive strip search of a child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in Safford.

We may be in the minority, but if we can’t agree that stealing is wrong and that people shouldn’t be conducting invasive searches of 4 year olds and photographing them, we have gone off the deep end.

It is time to reign in sovereign immunity.

2 Responses to ““It Isn’t Clearly Established….” That Stealing Is Theft.”

  1. Carla says:

    How disturbing both cases discussed in your article are!

    It’s bad enough when cops, acting on behalf of the government, seize money or property without cause. It’s even worse when cops personally steel citizen’s belongings!

    In the situation where the state caseworker strip searched and photographed a four-year-old girl with no warrant or consent, then lied about it, perhaps she should have been charged with possession of child porn. At least, she should have been fired!

  2. Rev.Hoagie says:

    Actually it’s way past time the cops and courts get to seize anything other than the actual illegal items before the accused is tried. This forfeiture crap is for the birds.