We recognize that theft is morally wrong

Not all conduct that is improper or morally wrong violates the Constitution

In September of 2013 a Fresno, California business was raided. The police suspected at the time that Micah Jessop and Brittan Ashjian the owners of an ATM company were running an illegal gambling ring and so they raided their office and homes and seized hundreds of thousands of dollars in cash and rare coins. Jessop and Ashjian weren’t actually breaking the law it turns out because they were never charged with the crime but the police kept their shit anyway because fuck you.

When the police did an inventory of what they took during the raid they said it was only $50,000 but the two men disputed this saying they had in fact taken $200,000 in cash and $150,000 worth of coins. Shit out of luck at this point Jessop and Ashjuan were forced to sue the police claiming that their Fourth Amendment rights had been violated.

Naturally the police argued that they could not be sued over the theft owing to a piece of shit doctrine known as qualified immunity which shields government officials from liability unless their actions can be shown to violate clearly established rights under federal or constitutional law. In a shocking but not too shocking turn of events if you remember what the name of this newsletter is the Ninth Circuit Court agreed with them recently. There is no clearly established legal precedent that explicitly states that the police stealing shit that they obtain during a lawful seizure is illegal and therefore there is no way that the cops in this case could have known not to do it they argued.

Ah,

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

Does that sound insane to you because it sounds pretty fucking insane to me.

“Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong,” they wrote which is nice of them to admit.

“We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.”

Oh well I guess these guys can just go and fuck themselves then.

This may or may not surprise you to hear but one of the cops that took their shit was indicted in 2014 for taking a $20,000 bribe from a suspected drug dealer. He pled guilty and was sentenced to two years in prison.

“We sympathize with Appellants,” the Ninth Circuit concluded. “They allege the theft of their personal property by police officers sworn to uphold the law. If the City Officers committed the acts alleged, their actions were morally reprehensible. Not all conduct that is improper or morally wrong, however, 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.”

Ah fuck fuck fuck I’m gonna lose my mind off this shit. I may have been operating under a total misunderstanding of just what constitutes an unreasonable search and seizure my entire life but to be fair I am not a Constitutional scholar or a scholar of anything at all.

To try to figure out exactly what is going on here I called up my friend Charles Star a lawyer who you may know from his work on the dearly departed Mic Dicta podcast or from Twitter where he posts about Supreme Court decisions and other legal nerd shit amidst complaining about the relative fortunes of the Pittsburgh Pirates and New Orleans Saints two teams he is somehow a fan of despite living in New York City. One time he stayed at my house and we ate popsicles and I took him out to see some places in Boston but I really wasn’t a very good host I have to admit because his visit coincided with a time in my life I pretty much wanted to be dead every second of the day lol. Sorry about that buddy.

We also talked about another fucked up case in North Carolina where an appeals court found that a police officer who pulled over a man that had given him the finger and then arrested him for some other made up shit did not constitute an illegal arrest.

The Law it seems… is bad.

You obviously understand how to read these court rulings better than me due to I’m a Law Dunce, but from what I understand in 2013 in Fresno the cops raided an alleged gambling operation?

On the surface it was an ATM business. I guess in the underlying charges they said it was gambling connected. What their actual evidence of probable cause was I’m not positive, but the warrant was apparently legit. Whatever thing they were accused of there was enough information to get a legitimate warrant to search the premises and to seize whatever evidence or alleged ill-gotten gains. Someone convinced a judge to issue them a valid warrant.

So they go in and they take something like $200,000 in cash and $125,000 in coins the guy says…

The police said they only seized $50,000 and here’s an inventory slip. The guys say “we had $200,000 and a rare coin collection in that safe and we can prove it. This isn’t some idle insurance fraud thing, we can prove the inventory slip is bogus.” So they sue under the Fourth Amendment saying it was an improper seizure basically.

This is insane to me. The Ninth Circuit says there was “no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Just reading that as a layperson that seems absolutely fucking insane to me.

It is! It is because qualified immunity is insane. It breaks the law down into these really discrete pieces. What are the grounds on which you can sue? The court might say something like you would be able to press criminal charges against them for stealing it. You might be able to sue them in state court for common law theft crimes. Those all may be possible remedies for people you say have stolen your property. But they create this very discrete category of rules to be able to sue someone under the Fourth Amendment for violation of your rights against search and seizure.

The idea behind qualified immunity is essentially policing doesn’t work if the courts are constantly second guessing the police. There’s really nothing more complicated to it than that.

Qualified immunity we usually hear about when there’s been police violence right?

Usually yes. Usually the police shoot someone and then they say well, under the standards as we look at this case, the Fog of War, we can’t second guess the snap judgment of someone in these circumstances. So then they get off.

How would the police not know that stealing is a violation here? Isn’t that literally what the Fourth Amendment is?!!

Yes, you’re having the correct reaction. There is case law that is like: because certain things are so far beyond the pale, you are essentially on notice. Why stealing the proceeds of a search is not one of them I have no idea.

This Ninth Circuit opinion is the judges narrowing it so much, to “Sure stealing is immoral, but how was a police officer to specifically know that it would violate the Fourth Amendment rights of this person?” Like, not is it bad, not should he not have taken it, but how would he have known if we’ve never said it before, that it would have been this particular offense. It gets even worse because they don’t even bother answering the question.

Ten years ago in a case called Pearson v Callahan, the Supreme Court restated the basic law: it’s a two step process. The first step is Was a right violated? And the second is Was that right clearly established by prior case law? And they said Look we can waste a lot of time on the first step, but if it’s never been clearly established, then this cop can’t be found liable anyway, so you can start with the second step if that’s easier.

So this ruling doesn’t now therefor establish that stealing is a violation?

Correct. Because they start at step two you have now stopped establishing that things are a violation. You don’t increase the body of law that cops are now on notice for because you just dismissed things at step two without engaging with step one. They kind of vaguely hint that step one might be a problem. There are parts of the case where they say well it might be a problem. But they look around and say that most of the courts that look at this only look at step two, or they parse it out and say if it was part of a valid warrant the seizure only takes place at the moment of the seizure. So since they had a warrant and they went in and took the stuff pursuant to a valid warrant, if they leave the building, whatever they do with the property after that is separate from the Fourth Amendment issue. So even if they’ve stolen it, they haven’t stolen it in a way that violated the Fourth Amendment as part of the seizure.

The Fourth Circuit, which is Maryland,Virginia and the Carolinas, are the only court that has said no to this. They’ve said it’s continuing. If the police seized the property, and they continue to possess the property, and they steal the property, that’s part of the Fourth Amendment seizure. So the Ninth Circuit says in this case that they’ve looked around and only one case addresses this, a Fourth Circuit case from 2004 called Mom’s Inc. v. Willman. In that case the police seized a watch, and however the case proceeded, eventually the person was allowed to get their watch back, but the police wouldn’t or couldn’t give it back. So the person sued under the Fourth Amendment saying I should get my watch back, and the Fourth Circuit was like Yeah, whenever you take it, once it comes into your custody, if you are retaining it, you are violating the search and seizure right. Even there, though, the Fourth Circuit said that it hadn’t been previously established and the police in that case got the qualified immunity mulligan.

The Ninth Circuit kind of had a similar case. What’s weird about this Fresno case is that it was issued twice. This case, which his making the rounds this past week, was actually issued back in March. In March they didn’t mention the fact that there was a similar 2017 case in the Ninth Circuit.

The way circuits work, there are twelve enumerated circuits, plus D.C. has its own, that cover geographical regions, and the circuits kind of have their own law. They develop regionally, and then the Supreme Court settles any disputes once in a while. They read each other’s stuff to be influenced, but they’re not bound by anything. So the Ninth Circuit doesn’t have to listen to the Fourth Circuit.

Was Brewster v. Beck the Ninth Circuit case that applies here?

Yes. In that they impounded someone’s car because the owner didn’t have proof of registration. The person then proved they were the owner, and the impound lot basically tells them to go screw. So he sues and he wins, and the court said you have to give back the car. But here in the Fresno case the Ninth Circuit is saying it’s not exactly the same as that was. The impound lot is not exactly the same as this disputed fact that the Fresno Police stole the money and coins. They deny they stole anything entirely. They say there was only $50,000 in the safe. The court said it was different that way, but also, even if it was the same, that impound case came out in 2017, but the raid here was in 2013, so it wouldn’t have been established at the time anyway.

What are we even fucking doing here?

It’s totally Kafkaesque. It’s crazy.

Is it because the guys who had their shit stolen sued the wrong way? They shouldn’t have mentioned the Fourth and Fourteenth Amendment?

The Court doesn’t say, but they kind of imply that. But I don’t know if qualified immunity would preclude them from suing on any other grounds anyway. One thing we do know is the Fresno Police aren’t going to arrest these guys right?

They’re not going to arrest themselves.

Right. Whatever investigation there might be it’s not going to be by the Fresno Police finding out that their own stole this guy’s coin collection.

A lot of times judges will say there are other theories this case could’ve been brought under, but they don’t even say that here. I don’t know if they could’ve sued under common law torts.  

So what’s the takeaway here for people to know, that the police can bring up a charge against you, get a warrant for it, take your shit, and… that’s it?

It really does seem like that. The takeaway is that qualified immunity is a completely ridiculous doctrine. It really is a way of licensing crime under the color of authority. The Pearson v. Callahan decision, which allows you to sort of skip the factual inquiry, makes it worse because you end up without the body of law that future courts can look to to say courts have already said this is bad, so you can’t claim that you didn’t know.

Ok let’s talk about one more maddening case going on. A guy in North Carolina in 2017, I guess he flipped off a cop as he was driving by, and the cop pulled him over and said that was reasonable suspicion that a crime was being committed?

Yeah. Ellis. There ended up being a lot of different reasons the cop gave. The cop was on the side of the road helping someone, car drives by, waves at the cop, waits until the cop is looking then vigorously flips him off. The cop gets in his car, chases them down – it was the passenger who flipped him off – pulls them over… You can already tell what happens. They start screaming at the cop for pulling them over for flipping him off, but the cop is like license and registration, asks the passenger for ID. At this point the passenger refuses saying this is all bullshit. You can imagine how it went… someone who has a problem with authority.

So even though it was completely legitimate to flip the guy off, the cop pulling them over escalates any preexisting anti-cop animus. He says I’m not giving you my name.. So the cop tells him to step out of the car, cuffs him, puts him in the back of the police car, at which point the guy gives his name so he can run a warrant check. There’s nothing. He basically tells the cop I can’t believe you pulled me over for giving you the finger. The cop doesn’t arrest him for flipping him off though, the charge is for not giving the ID. And the guy doesn’t even dispute that. What he says is pulling me over in the first place was unconstitutional, so the second part, the arrest, is invalid. He admits he broke the law by not giving the officer the ID, he pleads guilty to that. And it’s not like it’s this small thing. If you read the case it talks about his priors, and the effect that has on sentencing, because it’s not this guy’s first time through the system. It’s not like the difference between like a couple hundred dollar fine or nothing, this guy is jammed up with recidivism issues. It’s not small potatoes to this guy.

First, the trial court said the officer had reasonable suspicion to pull him over, probable cause for the arrest. That’s the entire opinion. It goes to the appellate court and they say they can find for the state on any ground. The only thing the state argued under was something called the “community caretaker” exception. What that is is the police had the right to pull him over because he didn’t know why the guy was waving and maybe they were in trouble. Even this court was like Get out of here. No, that’s not what it was. So they dismissed that.

But they said the flipping him off may have been evidence of disorderly conduct, or some other conflict going on, so there was reasonable suspicion to investigate that generalized flouting of the law. So they issued that opinion. The North Carolina criminal defense bar kind of went ape shit. They went ape shit because there’s a ton of law that says you’re allowed to flip off a cop.

First Amendment?

Right. And the police can’t get around it by calling it disorderly conduct, because that always happens. Every time the police arrest someone for getting mad at them, the police try to think up a new reason why it breaches the peace to make it valid. Every time the court says no.

So where did this one end up?

They recalled the first opinion, and then they re-issued a new opinion with the same result. This time they argue the police officer pulled the car over because he didn’t know who this guy was flipping off. It was impossible to tell if this guy was flipping off the officer or someone in another car, maybe there was another dispute going on. And that uncertainty was reasonable suspicion. The police officer testified something along those lines. I mean it’s clearly a lie. But he did say it.

The district attorney, I think, did not even find the officer sufficiently credible to argue that point, but the court just gave it to them. The dissent here is basically like there’s no way that that’s true. The dissent said you pulled him over, searched for a way to arrest the guy, and found one when the guy turned out to be unwilling to turn over his ID.

Where does it stand now?

It stands now that he’s guilty. And has to appeal to the North Carolina Supreme Court. He’s guilty of impeding an investigation or something like that.  

So the lesson here for Hell World readers is basically you’re fucked if the cops want to fuck you and just pray every day that you don’t get caught up in the system.

That is exactly right.