Ninth Circuit Court Rules It's OK For Cops To Steal From You. That's It. It's Okay For Cops To Steal From You.
Back in 2013, two cops in Fresno, California, stole more than $225,000 from Micah Jessop and Brittan Ashjian in broad daylight, right in front of their eyes. Now, the US Ninth Circuit Court of Appeals claims no actual crime was committed. The court dismissed the men's civil rights suit last week, declaring that the officers still enjoy "qualified immunity" and can't be sued in federal court.
Judge Milan Smith, a gift from George W. Bush, wrote the unanimous decision, and it's a doozy. He argues that even if the police officers robbed Jessop and Ashjian blind, the businessmen "did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant." It's apparently "not obvious" that cops stealing from citizens violates their constitutional rights.
The police were investigating possible illegal gambling and did in fact have a warrant to search three properties that Jessop and Ashjian owned. They were given a receipt of sorts stating that the officers seized $50,000. However, the businessmen claim the cops actually took $151,380 in cash as well as $125,000 in rare coins. Sure, there's $50,000 in there but several times over.
Jessop and Ashjian were never charged with a crime. Worse, they never got their shit back. The men filed a lawsuit claiming the Fresno police violated their Fourth Amendment right against "unreasonable search and seizure," as well as their right to due process under the Fourteenth Amendment.
"Unquestionably," they argued in court documents, "the theft of over $100,000 and collectible coins/currency exceeded the legitimate scope of the search warrant."
Although the police deny the theft, their defense was based on the notion of "qualified immunity." The Supreme Court has ruled that qualified immunity encourages "the vigorous exercise of official authority" and protects officials "from undue interference with their duties and from potentially disabling threats of liability." In practice, it helps cops get away with murder (sometimes literally).
The bar is unreasonably high for citizens to get over qualified immunity. You need "existing precedent" that your constitutional rights were "clearly established" at the time of the alleged misconduct by law enforcement. You might as well not leave the house, because "existing precedent" was last seen somewhere over the Bermuda Triangle.
The Ninth Court ruled with a collective legal shrug that "we need not—and do not—decide whether the City Officers violated the Constitution." By ducking the question of whether cops literally stealing from you violates your constitutional rights, the court ensures there is no "clearly established law" guiding judges the next time this happens, and we're fairly sure it will. Qualified immunity in its current form leads to what's called "constitutional stagnation" or in layman's terms a legal circle jerk.
If it's any consolation, the Ninth Court did pull a Susan Collins and admit that "any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing." The officers really should've "recognized that the alleged theft of Appellants' money and rare coins would be improper." However, the court ludicrously insists that Fresno police "did not have clear notice that [alleged stealing] violated the Fourth Amendment" and "could not have known that their actions violated the Fourteenth Amendment's substantive due process clause." WTF? Don't they cover "stealing is bad" during day one of police academy? Or does the training just involve watching the Police Academy film series?
A coalition of organizations as diverse as the ACLU and the Second Amendment Foundation recently signed a "cross-ideological" amicus brief urging the Supreme Court to take another -- maybe even sober -- look at qualified immunity.
That case law, the brief argued, "denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing," which in turn has "diminished the public's trust in government institutions."
One of the leading critics of qualified immunity is Don Willett, a judge on the US Fifth Circuit Court of Appeals who also made Donald Trump's shortlist of potential nominees to the Supreme Court. Willett has warned of the "kudzu-like creep of the modern immunity regime."
WILLETT: To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.
The current "yes harm, no foul" imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.
We couldn't agree more. It's no surprise, we guess, that Trump wound up going with someone else for the Supreme Court. His entire presidency operates under the "qualified immunity" principle.
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Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He recently fled Seattle, where he did theatre work for Book-It Rep and Cafe Nordo.