For the second time with the same case, a court ruled three Fresno cops accused of stealing more than $200,000 from two businessmen cannot be sued because the Constitution does not explicitly protect people from their property being stolen during a search and seizure.
The Ninth Circuit Court of Appeals ruled this month that even if the allegations are true, the cops can’t be held accountable for falsely reporting they only seized $50,000 in assets from Micah Jessop and Brittan Ashjian despite the men claiming the cops actually took $151,380 in cash and another $125,000 in rare coins.
Jessop and Ashjian believe officers Derik Kumagai, Curt Chastain, and Tomas Cantu pocketed the difference during the 2013 raid. In a separate case, Kumagai ended up sentenced to prison in 2015 for accepting a $20,000 bribe from a drug dealer.
In this case, the cops are being protected by a legal loophole known as qualified immunity that allows government officials to get away with crimes regular people would never be able to. Officials have been able to get away with firing a gun into a group of teens, forcing a 4-year-old to be strip-searched without consent and even shooting a 10-year-old boy while trying to kill his dog.
The court believed that because “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 cops shouldn’t have to pay the price of committing a crime.
In September 2013, the Fresno Police Department obtained a search warrant to look into three properties owned by Jessop and Ashjian in an effort to crack down on illegal gambling and money laundering. The warrant authorized the seizure of money, furniture or machines that may have been used illegally. The cops conducting the search warrant gave the two businessmen an inventory sheet listing out what and how much they seized, except Jessop and Ashjian claimed to have lost much more.
They filed a lawsuit against the cops and the city of Fresno arguing their Fourth and Fourteenth Amendment rights had been violated. The Fourth Amendment protects people from unreasonable searches and seizures while the Fourteenth Amendment requires due process of the law before any property is seized.
However, according to the court:
“The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious.”
Their answers were no different when it came to the question of possible Fourteenth Amendment rights violations.
“Because the City Officers could not have known that their actions violated the Fourteenth Amendment’s substantive due process clause, they are entitled to qualified immunity against [Jessop and Ashjian’s] Fourteenth Amendment claim.”
The court’s ruling goes on to say they feel bad for the two men missing hundreds of thousands of dollars, but “not all conduct that is improper or morally wrong, however, violates the Constitution.”
Typically what happens in qualified immunity cases is once a government official is granted impunity, the next official to commit that same crime is no longer protected under the legal loophole because there is finally an established precedent that says, “STEALING IS WRONG” or something along those lines. But because the court found these California cops never violated the Fourth and Fourteenth Amendment, the possibility of future officials getting away with stealing a person’s money and property has increased that much more.
Understandably outraged by the court’s ruling, the National Police Accountability Project, Institute for Justice and many other organizations have rallied for the petition for Jessop and Ashjian’s case to be heard before the court en banc. If approved, every judge within the Ninth Circuit Court would hear and rule on their case rather than a select few on a panel.
Qualified immunity’s place in the United State’s legal system has been questioned by Supreme Court judges Clarence Thomas and Sonia Sotomayor who called it a “‘shoot first, think later’ approach to policing.”
During the second round of Democratic debates, presidential candidate Julian Castro said, “we need to have a standard and that we end qualified immunity for police officers so we can hold them accountable.”