Metropolitan News-Enterprise


Thursday, March 21, 2019


Page 1


Ninth Circuit:

Officers Entitled to Qualified Immunity in Action Alleging Theft of Seized Property


By a MetNews Staff Writer


Three members of the Fresno Police Department are entitled to qualified immunity in an action in which they are accused of stealing $226,380 in cash and rare coins, the Ninth U.S. Circuit Court of Appeals held yesterday.

Circuit Judge Milan Smith wrote the opinion which affirms a grant of summary judgment by District Court Judge Dale A. Drozd of the Eastern District of California to the City of Fresno and members of its police force, Derik Kumagai, Curt Chastain, and Tomas Cantu.

Pursuant to a search warrant signed by Fresno Superior Court Judge Dale Ikeda, the officers on Sept. 10, 2013, raided the homes and business establishment of Micah Jessop and Brittan Ashjian, hunting for illegal gambling devices and seizing monies apparently tied to gambling. They later provided an inventory sheet showing the seizure of $50,000 in cash.

Jessop and Ashjian balked. Officers actually seized $151,380 in cash, as well as rare coins worth $125,000, they insisted.

They brought their action in federal court in 2015, asserting a violation of their rights under the Fourth and Fourteenth amendments.

District Court Decision

In granting summary judgment to the defendants, Drozd said:

“The undisputed evidence before the court on summary judgment establishes that the property seized by the defendant officers was within the scope of the property described in the warrant as authorized for seizure.”

He found no basis for municipal liability.

In yesterday’s opinion, Smith noted that qualified immunity shields government officials from liability for their conduct unless they acted in derogation of clearly established statutory or constitutional rights. He declared:

“We need not—and do not—decide whether the City Officers violated the Constitution. 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. For that reason the City Officers are entitled to qualified immunity.”

Sympathy for Plaintiffs

Smith commented:

“We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. Appellants may very well have other means through which they may seek relief. But not all conduct that is improper or morally wrong violates the Constitution. Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.”

In a footnote, Smith pointed to Drozd’s observation that Jessop and Ashjian “had access to an adequate post-deprivation remedy under California tort law.”

The case is Jessop v. City of Fresno, 17-16756.

 One of the defendants, Kumagai, a former detective, in 2015 pled guilty to accepting a $20,000 bribe from a drug dealer and was sentenced to two years in federal prison.

Jessop and Ashjian were not charged in connection with the gambling investigation.


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