Have you ever watched a contortionist and marvel at the way they can twist their bodies? Well, looking at the case Jessop v City of Fresno showed a level of linguistic and judicial contortions that not only baffle the mind but crush the soul.
Background
As part of an investigation, officers of the city of Fresno executed a warrant to seize “monies, negotiable instruments, securities, or things of value” from three different properties owned by Micah Jessop and Brittanis Ashjian (the appellants). The officers were ordered by the court to retain the property they seized in their custody. Following the search and seizure, the officers gave the appellants an inventory stating that they seized approximately $50,000 from the properties. Jessie and Ashjian claim that the officers actually seized over $150,000 in cash and another $125,000 worth of rare coins. They then sued the City of Fresno and the officers, Kerik Kumagai, Curt Chastain, and Thomas Cantu under 42 U.S.C. § 1983 for a violation of their Fourth and Fourteenth Amendment protected rights. The officers of the City of Fresno moved for a summary judgment on the basis of “qualified immunity”. The case was heard in the Eastern District of California, which found in favor of the officers. It was then appealed to a panel of the Ninth Circuit Court of Appeals, which upheld the lower court ruling. However, it is the reasoning behind these opinions that really disturbs me.
The Case
First of all, I’m not sure what reasoning the appellants’ attorney used to decide to sue in federal court. It could be because they are claiming a violation of equity under the U.S. Constitution. In which case, federal courts would have jurisdiction.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
U.S. Constitution, Article III, Section 2
It could be their attorney thought they stood a better chance in federal court than one closer to the City of Fresno. For whatever reason, this case, and the resultant trashing of justice, is in federal courts.
Both courts found that the Officers of the City of Fresno were entitled to qualified immunity because “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.” While reading the opinion of the Ninth Circuit I found several failures of the judicial system to protect the rights of all involved (or in other words, to follow due process.)
Qualified Immunity
The idea of qualified immunity is not an inherently bad one, but it does have some issues.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
If a government official unknowing or unintentionally violates someone’s rights, they are granted a level of immunity. Since the Constitution sets out restrictions on government, only government agents can violate your Constitutionally protected rights. Then there are statutory rights, in which governments often restrict the actions of the people. (The legality of those rights is a discussion for another article.) The issue I have with qualified immunity is: Why do only government officials receive such protection? If a government officer receives immunity for violations a reasonable person would not have known about, why not everyone else? When did we give governments the authority to create unequal protections under the law?
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
U.S. Constitution, Amendment 4
Among other things, the Fourth Amendment protects your right to be secure in your person and property against unreasonable searches and seizures. The officers had a warrant which I believe included where they could search and what could be seized, but the question remains if it is reasonable for government officials to seize property and pocket a portion of it?
The City Officers insist that because they seized Appellants’ assets pursuant to a valid warrant, there was no Fourth Amendment violation. Appellants, on the other hand, argue that the City Officers’ alleged theft was an unreasonable seizure that violated the Fourth Amendment.
Jessop v. City of Fresno
Yes, the Fourth Amendment defines the requirements for a warrant, but it is also meant to protect us from unreasonable searches and seizures, warrant or not. Is the court really saying that it is for government officials to steal private property as part of a seizure?
Fourteenth Amendment
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment 14
We can clearly see how the officers of the State, of which the City of Fresno is part, attempted to deprive both Jessop and Ashjian of a significant amount of property without due process of law. If it was found that Jessop and Ashjian were not guilty and their property was to be returned, and that the value they stated was accurate, they would receive less than one-fourth of what was actually seized.
The Court’s “Reasoning”
The part of this story that truly disturbs me is not that government officers may have stolen property. The fact the people steal is reprehensible, but not surprising. I also find the court’s opinions wrong, but that isn’t what made my head explode; it was the reasoning the court used to come to their opinion that got me mad. And it can be summed up in two sentences from the case’s summary:
The panel held that it need not decide whether the City Officers violated the Constitution. The panel determined that 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.
Jessop v. City of Fresno
Let me get this straight: Both a district and circuit court of the United States of America said they didn’t decide if the appellants’ rights were violated? They didn’t even consider if a reasonable person would think that stealing money during a seizure was reasonable? That the City of Fresno thought the stealing of the accuseds’ money was due process? How could these judges come to such a twisted conclusion? Likely because they never even got that far. They determined that the officers received immunity before they even got to the question of the rights of the appellants.
To determine whether a defendant violated an individual’s clearly established rights, we must determine “‘whether the state of the law’ at the time of an incident provided ‘fair warning’” to the defendant that his or her conduct was unconstitutional.
Jessop v. City of Fresno
This sentence actually contradicts itself. If the right is clearly established, then it’s part of the law. The right for your seizure to be reasonable and for your property to be protected by due process are both clearly established by the U.S. Constitution, which according to Article VI is the supreme law of the land. That same Article VI requires that all legislative, executive, and judicial officers swear or affirm to support the U.S. Constitution upon taking office. That means not only the officers involved in the seizure, but all of the officers of the City of Fresno, had to swear or affirm they would support the Constitution before they could take office. How can there be a question if a right is violated if that right is clearly established? The answer comes from the “law” the court is referring to.
We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.
Jessop v. City of Fresno
In other words, the Constitution that these judges swore or affirmed to support is not sufficient law for them. When they refer to “the state of the law”, they mean the state of judicial opinion about the law (what in legal circles is called “case law”). So the idea that a reasonable person would find theft of property an unreasonable seizure doesn’t matter to these judges. The idea that a government official stealing a person’s property is not a violation of their due process protections doesn’t even get examined. All because they don’t have the opinion of another judge to tell them to do what they swore to do: To support the Constitution of the United States of America. Because some priests in black robes declared the failure to return seized property is reasonable while others do not, these men are denied justice. Because one court opinion said the failure to return seized property is not depriving them of it, this court denies the appellants even their day in court. Is your head exploding yet?
Conclusion
This is a perfect example of the denial of justice due to the courts’ obsession with legislating via case law. If another court hasn’t blessed what the law says, i.e., if there isn’t a precedent, it doesn’t matter. You can read more about case law in my article The Myth of Case Law.
If you want to know why I say, “We don’t have a Justice System, we have Just a System”, it’s because of cases like this. As William Penn said “to delay justice is injustice”. Or, as you might have heard it paraphrased, “Justice delayed is justice denied.” These men have been denied justice in their case, and we have all been denied justice by a judicial branch that has subverted the legislative system. They have perverted their judicial power into the power to overturn the laws of the people (the Constitution) and the peoples’ agents in Congress. They have elevated themselves to the position of legislature by defining laws not by what Congress has passed, but by what their fellow judges have opined from the bench. This is the very definition of bad behavior, yet none of us are pushing our agents in Congress to do their jobs and protect the rights being trashed by an out of control judicial branch. And everyone seems to forget that 10 of the 27 grievances given for us declaring independence involved an overreaching and unaccountable judiciary.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,
Declaration of Independence
It is time We the People order our agents in Congress to hold the judiciary accountable for their bad behavior. These judges swore or affirmed an oath to support the Constitution. If they will no abide by their oath, if they insist on behaving badly, they must be removed. And the responsibility of making sure that happens falls in our laps. Will we do out jobs, or let justice die in the shadow of judicial opinion?
