Meanwhile in California, a Judge Provides Immunity to 3 Cops for Alleged Theft in Excess of $225k, One of Whom Recently took a Plea Deal for a Prior $20k Bribe

A federal appellate court on Wednesday dismissed a lawsuit claiming that three police officers alleged to have stolen more than $225,000 in property from two California men, reasoning that the officers did not violate the men’s Fourth Amendment right against unreasonable search and seizure.

Plaintiffs Micah Jessop and Brittan Ashjian claimed that in 2013, three Fresno police officers executing search warrants at their business and homes seized approximately $150,000 in cash and $125,000 in rare coins. When the two went to the police department the next day, however, only $50,000 had been placed into evidence, which police said was the entire haul submitted in relation to the investigation.

Jessop and Ashjian, who were never charged with any crime stemming from the investigation, filed a lawsuit against the three officers, claiming the theft constituted a violation of their Fourth Amendment right to be protected against unreasonable government seizure. The officers responded by filing for summary judgment, arguing that as government officials, they were entitled to “qualified immunity.” Under the doctrine of qualified immunity, government officials are shielded from civil liability for any conduct that does not violate a person’s “clearly established” constitutional rights.

In an eyebrow-raising opinion, Circuit Judge Milan D. Smith wrote that because the officers had a warrant to justify the initial seizure of the property, and no prior case addressed those specific circumstances, it was not clearly established whether the subsequent theft of that property violated the Fourth Amendment.

“The lack 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. Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment,” Smith reasoned.

“We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not ‘be clear to a reasonable officer,’” Smith concluded.

One of the officers alleged to have committed the 2013 theft, Derik Kumagai, was federally indicted in 2014 for accepting a $20,000 bribe from a suspected drug trafficker. He pleaded guilty to conspiring to commit bribery and in May was sentenced to two years in federal prison.

Brad Heath, an attorney and the D.C. Justice and Investigations Editor for USA Today, said the ruling seemed “seems unmoored” from the purpose and principle of the qualified immunity doctrine.

“It seems unmoored from the purpose of qualified immunity, which is that officials shouldn’t be held personally liable for conduct when they might not have been on notice that it was prohibited. But it’s hard to make that argument when the conduct is a well-known crime,” he wrote Friday.

Jessop and Ashjian have appealed the decision and petitioned for their case to be heard in front of the entire Ninth Circuit.

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— LawsInTexas (@lawsintexasusa) June 20, 2020