9th Circuit says that stealing — under a search warrant's legal protection — is Constitutional — unless cops were previously told otherwise by appellate courts

21 September 2019

Let's add the Ninth Circuit Court of Appeals . . .

. . . to our list of America's most judicially useless institutions.

Topping that list is the US Supreme Court. It delights in dodging its responsibility as the Constitution's Guardian. See, for example, here.

The Ninth Circuit makes it onto our list with the following, glowing example of too narrowly focused judicial idiocy.

What the Ninth Circuit said — about warrant-serving, thieving police

In the Ninth Circuit's jurisdiction, cops can steal from you under a search warrant's protection.

You cannot sue them for it under the US Constitution's protection:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties [listed on the search warrant].

Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount actually seized from the properties.

The City Officers insist that because they seized Appellants’ assets pursuant to a valid warrant, they did not violate the Fourth Amendment.

Appellants, by contrast, argue that the City Officers’ alleged theft was an unreasonable seizure under the Fourth Amendment.

A defendant violates an individual’s clearly established rights only when “‘the state of the law’ at the time of an incident provided ‘fair warning’” to the defendant that his or her conduct was unconstitutional.

We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.

The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does.

[W]e need not decide whether the City Officers 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—which, as noted, is a different question.

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.’”

Jessop v City of Fresno, No. 17-16756, slip opinion (9th Cir. Sep. 04, 2019)

My attorney (and former cop) reaction to Jessop v Fresno . . .

. . . is identical to that expressed by the libertarian magazine, Reason:

While the unanimous panel acknowledged that "the City Officers ought to have recognized that the alleged theft was morally wrong," it concluded that they "did not have clear notice that it violated the Fourth Amendment."

In other words, the cops weren't equipped with enough information to deduce that robbing people is a violation of their constitutional rights against unreasonable searches and seizures—a bizarre interpretation of the law, to say the least.

The point

The Ninth Circuit implies that thievery without a warrant is unconstitutional, but thievery with one is not.

That is obtuse, as a matter of policy. The Fourth Amendment is specifically addressed against the government's unreasonably exercised power to take private property.

Instead, according to the Ninth Circuit, the Fourth Amendment can be turned against itself.

By the Ninth Circuit's reasoning — if you obtain a presumably legitimate search warrant, you can afterward steal (without constitutional effect) whatever you were authorized to seize — unless you had been previously told (by the judiciary) that theft is a violation of the Constitution.

Now why — given its anti-storm-trooper intent — would the US Constitution make such a distinction?

The Fourth Amendment's purpose was to preserve private property against illegitimate government seizures of any kind.

But as Jessop v City of Fresno is written, one can presume that:

police could set up "factories"

with which to manufacture bogus probable cause

parade that PC past honest (or crooked) judges

obtain warrants thereon

and steal to their hearts' content —

all without paying a Constitutional price.

Does that reasoning make sense to you?

The Ninth Circuit's rationale in Jessop parallels the other distortions of the Fourth Amendment that courts have bought into. Including the evaporated Fourth Amendment protections that the "War against Drugs" and "national security" precipitated.

Consider, for example, how courts have upheld the absurd amounts of civil forfeitures that currently plague the country.

The moral? — the Ninth Circuit's narrowly focused decision rewards police for being both thieves and stupidly unreasonable

It is repetitively occurring (overly intellectualized) dopiness like the Ninth's — in this instance — that causes the public to lose respect for American institutions.

"You mean that the Constitution implies that I (as a government agent) cannot steal from you?

"Who knew?"

I would toss the Ninth Circuit onto the metaphorical, society-cleansing fire, along with the US Supreme Court.

The American judiciary too often abandons its inferred Social Contract commitment to the preservation of liberty under the Constitution.

PeteFree.com

9th Circuit says that stealing — under a search warrant's legal protection — is Constitutional — unless cops were previously told otherwise by appellate courts