FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICAH JESSOP; BRITTAN 

ASHJIAN,

Plaintiffs-Appellants,

v.

CITY OF FRESNO; DERIK 

KUMAGAI; CURT CHASTAIN;

TOMAS CANTU,

Defendants-Appellees.

No. 17-16756

D.C. No.

1:15-cv-00316-DADSAB

ORDER AND 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 18, 2018

San Francisco, California

Filed September 4, 2019

Before: MILAN D. SMITH, JR., JACQUELINE H. 

NGUYEN, Circuit Judges, and JANE A. RESTANI,*

Judge.

* The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
2 JESSOP V. CITY OF FRESNO

Order;

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Milan D. Smith, Jr.

SUMMARY**

Civil Rights

The panel withdrew its prior opinion, found at Jessop v. 

City of Fresno, 918 F.3d 1031 (9th Cir. 2019), and filed a 

superseding opinion in its place.

The panel affirmed the district court’s order granting the

City of Fresno police officers’ motion for summary 

judgment in an action alleging that the officers violated the 

Fourth and Fourteenth Amendments when they stole 

Appellants’ property during the execution of a search and 

seizure pursuant to a warrant.

Following the search, the City Officers gave Appellants 

an inventory sheet stating that they seized approximately 

$50,000 from Appellants’ properties. Appellants alleged, 

however, that the officers actually seized $151,380 in cash 

and another $125,000 in rare coins. Appellants alleged that 

the City Officers stole the difference between the amount 

listed on the inventory sheet and the amount actually seized 

from the properties.

The panel held that at the time of the incident, there was 

no clearly established law holding that officers violate the 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
JESSOP V. CITY OF FRESNO 3

Fourth or Fourteenth Amendment when they steal property 

seized pursuant to a warrant. For that reason, the City 

Officers were entitled to qualified immunity. The panel 

reasoned that although the decision in Brewster v. Beck, 

859 F.3d 1194 (9th Cir. 2017) was instructive on the 

question of whether the theft of property covered by the 

terms of a search warrant, and seized pursuant to the warrant,

violates the Fourth Amendment, Brewster’s facts varied in 

legally significant ways from those in this case. Moreover, 

the panel noted that the City Officers seized Appellants’ 

property in 2013, prior to the Brewster decision in 2017. The 

panel held that although the City Officers ought to have 

recognized that the alleged theft was morally wrong, they did 

not have clear notice that it violated the Fourth Amendment. 

The panel further held that the Fourth Circuit’s unpublished 

decision in Mom’s Inc. v. Willman, 109 F. App’x 629, 636–

37 (4th Cir. 2004)—the only case law that the time of the 

incident holding that the theft of property pursuant to a 

warrant violates the Fourth Amendment—did not put the 

“constitutional question beyond debate.”

Specially concurring, Judge M. Smith wrote separately 

to share his view of why, even if Brewster were decided 

before the City Officers’ alleged theft, it was not clear that 

the City Officers violated the Fourth Amendment.

COUNSEL

Kevin G. Little, Esquire, Law Office of Kevin G. Little, 

Fresno, California; Neal K. Katyal, Colleen E. Roh Sinzdak, 

and Mitchell P. Reich, Hogan Lovells US LLP, Washington, 

D.C.; for Plaintiffs-Appellants.
4 JESSOP V. CITY OF FRESNO

Daniel P. Barer, Pollak Vida & Barer, Los Angeles, 

California; Peter J. Ferguson and Allen Christiansen, 

Ferguson Praet & Sherman APC, Santa Ana, California; 

Kevin M. Osterberg, Haight Brown & Bonesteel LLP, 

Riverside, California; for Defendants-Appellees.

Jessica Ring Amunson and Andrew C. Noll, Jenner & Block 

LLP, Washington, D.C., for Amici Curiae The DKT Liberty 

Project, Reason Foundation, Individual Rights Foundation, 

Public Justice, National Police Accountability Project, Law 

Enforcement Action Partnership, Institute for Justice, and 

Americans for Prosperity.

Clark M. Neily III and Jay R. Schweikert, Washington, D.C., 

as and for Amicus Curiae The Cato Institute.

C. Mitchell Hendy, Mayer Brown LLP, Los Angeles, 

California; Donald M. Falk, Mayer Brown LLP, Palo Alto, 

California; for Amici Curiae National Association of 

Criminal Defense Lawyers, American Civil Liberties Union 

of Northern California, and American Civil Liberties Union 

of Southern California.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, 

Minnesota, for Amici Curiae Restore the Fourth, Inc. and 

Americans for Forfeiture Reform.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, Texas; 

Mark Chenoweth, Michael P. DeGrandis, and Caleb 

Kruckenberg, New Civil Liberties Alliance; for Amicus 

Curiae New Civil Liberties Alliance.
JESSOP V. CITY OF FRESNO 5

ORDER

The prior opinion in this case, found at Jessop v. City of 

Fresno, 918 F.3d 1031 (9th Cir. 2019), is hereby withdrawn. 

A superseding opinion will be filed concurrently with this 

order. Plaintiffs-Appellants’ petition for rehearing en banc 

remains pending.

OPINION

M. SMITH, Circuit Judge:

Micah Jessop and Brittan Ashjian (Appellants) appeal an 

order granting a motion for summary judgment on a defense 

of qualified immunity. City of Fresno and Fresno police 

officers Derik Kumagai, Curt Chastain, and Tomas Cantu 

(the City Officers) filed the motion in an action alleging that 

the City Officers violated the Fourth and Fourteenth 

Amendments when they stole Appellants’ property during 

the execution of a search and seizure pursuant to a warrant.

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 seized 

pursuant to a warrant. For that reason, the City Officers are 

entitled to qualified immunity.

FACTUAL AND PROCEDURAL BACKGROUND

As part of an investigation into illegal gambling 

machines in the Fresno, California area, the City Officers 

executed a search warrant at three of Appellants’ properties. 

The warrant, signed by Fresno County Superior Court Judge 

Dale Ikeda, authorized the
6 JESSOP V. CITY OF FRESNO

seiz[ure] [of] all monies, negotiable 

instruments, securities, or things of value 

furnished or intended to be furnished by any 

person in connection to illegal gambling or 

money laundering that may be found on the 

premises . . . [and] [m]onies and records of 

said monies derived from the sale and or 

control of said machines.

If the City Officers found the property listed, they were “to 

retain it in [their] custody, subject to the order of the court as 

provided by law.”

Following the search, the City Officers gave Appellants 

an inventory sheet stating that they seized approximately 

$50,000 from the properties. 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.

Appellants brought suit in the Eastern District of 

California alleging, among other things, claims against the 

City Officers pursuant to 42 U.S.C. § 1983 for Fourth and 

Fourteenth Amendment violations. The City Officers 

moved for summary judgment based on qualified immunity. 

The district court granted the motion and dismissed all of 

Appellants’ claims.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review summary judgment determinations, and officers’ 

entitlement to qualified immunity, de novo. Glenn v. 

Washington County, 673 F.3d 864, 870 (9th Cir. 2011).
JESSOP V. CITY OF FRESNO 7

ANALYSIS

“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)). “In determining whether an officer is entitled to 

qualified immunity, we consider (1) whether there has been 

a violation of a constitutional right; and (2) whether that right 

was clearly established at the time of the officer’s alleged 

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th 

Cir. 2014).

I. Fourth Amendment

The parties dispute whether the City Officers’ actions 

violated the Fourth Amendment. 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.

Although courts were formerly required to determine 

whether plaintiffs had been deprived of a constitutional right

before proceeding to consider whether that right was clearly 

established when the alleged violation occurred, see Saucier 

v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court has 

since instructed that courts may determine which prong of 

qualified immunity they should analyze first. Pearson, 

555 U.S. at 236. Addressing the second prong before the 

first is especially appropriate where “a court will rather 

quickly and easily decide that there was no violation of 
8 JESSOP V. CITY OF FRESNO

clearly established law.” Id. at 239. This is one of those 

cases.

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. Tolan v. Cotton, 572 U.S. 

650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 

(2002)). “We do not require a case directly on point, but 

existing precedent must have placed the statutory or 

constitutional question beyond debate.” Ashcroft v. al-Kidd, 

563 U.S. 731, 741 (2011). Thus, “[t]he contours of the right 

must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.” 

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[W]e 

may look at unpublished decisions and the law of other 

circuits, in addition to Ninth Circuit precedent.” Prison 

Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005).

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.1 

The only circuit that has addressed that question—the Fourth 

Circuit—concluded in an unpublished decision that it does. 

See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th 

Cir. 2004). Mom’s involved federal agents who failed to 

return the plaintiff’s watch after the execution of a search 

warrant. Id. at 633. Relying on the Supreme Court’s 

1 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. 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.
JESSOP V. CITY OF FRESNO 9

decision in United States v. Place, 462 U.S. 696 (1983), the 

court reasoned that the Fourth Amendment “regulates all [] 

interference” with an individual’s possessory interests in 

property, “not merely the initial acquisition of possession.” 

Mom’s, 109 F. App’x at 637. Thus, because the agents’ theft 

of the watch interfered with the plaintiff’s interest in it, “such 

theft violates the Fourth Amendment.” Id.

Although we have not addressed this precise question, 

our decision in Brewster v. Beck is instructive. 859 F.3d 

1194 (9th Cir. 2017). There, officers impounded the 

plaintiff’s vehicle pursuant to a statute that authorized the 

seizure of vehicles when the driver had a suspended license. 

Id. at 1195. When the plaintiff later “appeared at a hearing 

. . . with proof that she was the registered owner of the 

vehicle and her valid California driver’s license,” however, 

the government refused to release the vehicle to her. Id. We 

reasoned that the Fourth Amendment was implicated by the 

government’s actions because “[t]he Fourth Amendment 

doesn’t become irrelevant once an initial seizure has run its 

course.” Id. at 1197. Because “[t]he exigency that justified 

the seizure [of the plaintiff’s vehicle] vanished once the 

vehicle arrived in impound and [the plaintiff] showed up 

with proof of ownership and a valid driver’s license,” we 

held that the government’s impoundment of the vehicle 

“constituted a seizure that required compliance with the 

Fourth Amendment.” Id. at 1196–97.

Brewster’s reasoning suggests that the City Officers’ 

alleged theft of Appellants’ property could also implicate the 

Fourth Amendment. Although the City Officers seized 

Appellants’ money and coins pursuant to a lawful warrant, 

their continued retention—and alleged theft—of the 

property might have been a Fourth Amendment seizure 

because “[t]he Fourth Amendment doesn’t become 
10 JESSOP V. CITY OF FRESNO

irrelevant once an initial seizure has run its course.” Id.

at 1197.

Brewster’s facts, however, vary in legally significant 

ways from those in this case. Whereas Brewster concerned 

the government’s impoundment of a vehicle, id. at 1195, 

Appellants argue that the City Officers stole their property. 

And while Brewster involved the seizure of property 

pursuant to an exception to the warrant requirement, id.

at 1196, the City Officers seized Appellants’ property 

pursuant to a warrant that authorized the seizure of the items 

allegedly stolen.

Even if the facts and reasoning of Brewster would dictate 

the outcome of this case, however, it was not clearly 

established law when the City Officers executed the search 

warrant. The City Officers seized Appellants’ property in 

2013, but Brewster was not decided until 2017. For that 

reason, we 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. Wilson v. Layne, 526 U.S. 603, 617 

(1999). 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. The Fourth Circuit’s unpublished 

decision in Mom’s—the only case law at the time of the 

incident holding that the theft of property seized pursuant to 

a warrant violates the Fourth Amendment—did not put the 

“constitutional question beyond debate.” al-Kidd, 563 U.S. 

at 741.
JESSOP V. CITY OF FRESNO 11

Nor is this “one of those rare cases in which the 

constitutional right at issue is defined by a standard that is so 

‘obvious’ that we must conclude . . . that qualified immunity 

is inapplicable, even without a case directly on point.” A.D. 

v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013). 

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.’” Id. at 454 (quoting Brosseau v. Haugen, 543 U.S. 

194, 199 (2004) (per curiam)).2

Appellants have failed to show that it was clearly 

established that the City Officers’ alleged conduct violated 

the Fourth Amendment. Accordingly, we hold that the City 

Officers are protected by qualified immunity against 

Appellants’ Fourth Amendment claim.

II. Fourteenth Amendment

Appellants’ Fourteenth Amendment claim suffers the 

same fate. Appellants argue that the City Officers’ theft of 

their property violated their substantive due process rights 

under the Fourteenth Amendment. Assuming that to be true, 

however, the City Officers are entitled to qualified immunity 

because that right was not clearly established. We have not 

held that officers violate the substantive due process clause 

of the Fourteenth Amendment when they steal property 

seized pursuant to a warrant. The Seventh Circuit is the only 

2 As the district court recognized, such conduct might instead be 

punishable under California tort law. Cf. United States v. Jakobetz, 

955 F.2d 786, 802 (2d Cir. 1992) (“Jakobetz may be able to argue that a 

New York court violated a statutory right under New York law.”).
12 JESSOP V. CITY OF FRESNO

circuit that has addressed the related question of whether the 

government’s refusal to return lawfully seized property to its 

owner violates the Fourteenth Amendment; it held that the 

substantive due process clause does not provide relief 

against that conduct. See Lee v. City of Chicago, 330 F.3d 

456, 466–68 (7th Cir. 2003). Because the City Officers 

could not have known that their actions violated the 

Fourteenth Amendment’s substantive due process clause, 

they are entitled to qualified immunity against Appellants’ 

Fourteenth Amendment claim.

CONCLUSION

We sympathize with Appellants. 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.

AFFIRMED.

M. SMITH, Circuit Judge, specially concurring:

As the panel opinion recognizes, there is no question that 

the City Officers’ alleged conduct, if true, was morally 

reprehensible. Whether something violates the Fourth 

Amendment, however, is a different question from whether 

it is outrageous and morally wrong. I write separately to 

share my view why, even if Brewster v. Beck were decided 

before the City Officers’ alleged theft, it is not clear that the 
JESSOP V. CITY OF FRESNO 13

officers violated the Fourth Amendment. 859 F.3d 1194 (9th 

Cir. 2017).

Brewster’s reasoning appears to conflict with the 

Supreme Court’s jurisprudence on Fourth Amendment 

seizures. The Court has defined a seizure as “a single act, 

and not a continuous fact.” Thompson v. Whitman, 85 U.S. 

(18 Wall.) 457, 471 (1873). “From the time of the founding 

to the present, the word ‘seizure’ has meant a ‘taking 

possession.’” California v. Hodari D., 499 U.S. 621, 624 

(1991) (quoting 2 N. Webster, An American Dictionary of 

the English Language 67 (1828); 2 J. Bouvier, A Law 

Dictionary 510 (6th ed. 1856); Webster’s Third New 

International Dictionary 2057 (1981)). Whereas Brewster

held that the Fourth Amendment continues to apply after the 

government’s initial seizure of property, these Supreme 

Court cases suggest that, once the government has taken 

possession of property, a seizure is complete. It is 

“[p]ossession, which follows seizure, [that] is continuous.” 

Thompson, 85 U.S. (18 Wall.) at 471.

Perhaps because of the Court’s case law, Brewster’s 

reasoning also conflicts with that of several other circuits, 

which have concluded that the Fourth Amendment provides 

protection only against the initial taking of property, not its 

continued retention. See Lee v. City of Chicago, 330 F.3d 

456, 460–66 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 

342, 349–51 (6th Cir. 1999); see also Case v. Eslinger, 

555 F.3d 1317, 1330 (11th Cir. 2009) (government’s 

continued retention of seized property did not violate the 

Fourth Amendment because the officer “had probable cause 

to seize [the plaintiff’s] property”); United States v. 

Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992) (government’s 

continued retention of seized property implicates “a 
14 JESSOP V. CITY OF FRESNO

statutory right under New York law,” not the Fourth 

Amendment).

Here, the City Officers obtained a warrant that 

authorized them “[t]o seize all monies . . . or things of value 

furnished or intended to be furnished by any person in 

connection to illegal gambling or money laundering that may 

be found on the premises.” Accordingly, the warrant 

permitted the City Officers to seize the money and rare coins 

that Appellants argue the City Officers stole from them. 

Under the reasoning of the Supreme Court and several 

circuits cited above, therefore, Appellants’ Fourth 

Amendment claim appears to fail. Because the City 

Officers’ initial seizure of Appellants’ property was lawful, 

and because a Fourth Amendment seizure is complete after 

the government has taken possession of the property, 

Appellants would not be able to state a Fourth Amendment 

claim against the City Officers for their theft of the property 

after its lawful seizure.

As the opinion notes, Mom’s Inc. v. Willman is the only 

decision to have held that the theft of property seized 

pursuant to a warrant violates the Fourth Amendment. 

109 F. App’x 629 (4th Cir. 2004). There, the Fourth Circuit 

relied on United States v. Place, 462 U.S. 696, 706 (1983)

for the proposition that “[t]he Fourth Amendment regulates 

all [] interference” with a person’s property interests, “not 

merely the initial acquisition of possession.” Id. at 637.

In Place, the Court held that an officer’s reasonable 

suspicion that property may be involved in a crime permits 

the officer “to detain the luggage briefly . . . provided that 

the investigative detention is properly limited in scope.” 

Place, 462 U.S. at 706. After that brief amount of time has 

passed, however, probable cause is required to justify an 

officer’s continued seizure of the property. Id. at 709–10. 
JESSOP V. CITY OF FRESNO 15

Place thus addresses when an investigatory seizure of 

property might be reasonable when based on a level of 

suspicion less than probable cause. The case is instructive 

for how far officers can go in searching or seizing property 

without probable cause. But Place is inapposite in a case 

such as this in which officers have established probable 

cause and obtained a warrant for the property that is seized. 

Place, therefore, does not support the weight that Mom’s put 

on it.

Although the question appears to have an obvious 

answer at first blush, it is not clear whether the theft of 

property seized pursuant to the warrant violates the Fourth 

Amendment. The Supreme Court was mindful of cases such 

as this when it admonished courts not to resolve “difficult 

and novel questions of constitutional . . . interpretation that 

will ‘have no effect on the outcome of the case.’” Ashcroft 

v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Pearson v. 

Callahan, 555 U.S. 223, 236–37 (2009)). We need not 

attempt to reconcile the conflicting case law. As the panel 

opinion acknowledges, the lack of clearly established law at 

the time of the incident compels the conclusion that the City 

Officers are entitled to qualified immunity.