United States Court of Appeals for the Ninth Circuit
Micah Jessop; Brittan Ashjian,
City of Fresno; Derik Kumagai; Curt Chastain; Tomas Cantu,
On Appeal from the United States District Court for the Eastern District of California, Case No. 1:13-CV-00316-DAD-SAB
The Honorable Dale A. Drozd
Brief of 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 In Support Of Petition For Rehearing En Banc
Plaintiffs allege that City of Fresno police officers stole over $200,000 in cash and rare coins during a search of their property. The officers did not seize that property for law enforcement purposes. Nor did they seize it as evidence. Instead, the officers simply pocketed the property for their own pecuniary gain. The conduct plaintiffs allege is shocking.
Yet, without deciding the underlying constitutional issue, the panel concluded that the officers could not be held accountable for their actions under 42 U.S.C. § 1983 because there was no case clearly establishing that their conduct violated the Fourth Amendment.
That holding was wrong, both under existing case law and as a matter of common sense. At a minimum, the alleged constitutional violation is so egregious as to be obvious. The panel’s failure to hold as much continues the widespread practice of lower courts declining to reach constitutional questions in qualified immunity cases. This practice improperly stunts the development of the law and impedes the reach of constitutional protections to those most in need.
By unjustifiably extending qualified immunity to cover even the base theft alleged here, the panel’s decision also exacerbates the significant costs that an expansive immunity doctrine imposes on litigants, the public, and law enforcement. Litigants are discouraged from bringing lawsuits in even the most egregious cases because they know immunity will make success extremely difficult. Bad actors are not held accountable, which undermines public trust in law enforcement and makes policing by those officers who act reasonably more difficult and less safe. And concerns about the abuse of civil asset forfeiture—which already allows law enforcement to seize property with little legal recourse—are heightened when law enforcement can seize property for their own personal gain with no legal recourse for the victims.
The panel’s decision allows police officers to steal from suspects with impunity, and without any concern that they might be subject to civil liability. The decision is both wrong and consequential. This Court should grant rehearing en banc to reverse the judgment.