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Ashjian v. City of Fresno

United States Court of Appeals, Ninth Circuit

March 20, 2019

Micah Jessop; Brittan Ashjian, Plaintiffs-Appellants,
v.
City Of Fresno; Derik Kumagai; Curt Chastain; Tomas Cantu, Defendants-Appellees.

          Argued and Submitted December 18, 2018 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding D.C. No. 1:15-cv-00316-DAD-SAB

          Kevin G. Little, Esquire (argued), Law Office of Kevin G. Little, Fresno, California, for Plaintiffs-Appellants.

          Daniel P. Barer (argued), Pollak, Vida & Barer, Los Angeles, California, for Defendants-Appellees City of Fresno, Curt Chastain, Tomas Cantu, and Derik Kumangai.

          Peter J. Ferguson and Allen Christiansen, Ferguson, Praet & Sherman, APC, Santa Ana, California, for Defendants-Appellees the City of Fresno, Curt Chastain and Tomas Cantu.

          Kevin M. Osterberg, Haight, Brown & Bonesteel, LLP, Riverside, California, for Defendant-Appellee Derik Kumangai.

          Before: MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, [*] Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed the district court's order granting the City Officers' motion for summary judgment in an action alleging that City of Fresno police officers violated the Fourth and Fourteenth Amendments when they stole Appellants' property after conducting 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 that was actually seized from the properties.

         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. The panel noted that the five other circuits that had addressed that question, or the similar question of whether the government's refusal to return lawfully seized property violated the Fourth Amendment, had reached different results. The panel held that in the absence of binding authority or a consensus of persuasive authority on the issue, Appellants failed to demonstrate that it was clearly established that the City Officers' alleged conduct violated the Fourth Amendment. Accordingly, the panel held that the City Officers were entitled to qualified immunity.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         Micah Jessop and Brittan Ashjian (Appellants) appeal an order granting a motion for summary judgment on the defense of qualified immunity filed by the City of Fresno and City of Fresno police officers Derik Kumagai, Curt Chastain, and Tomas Cantu (City Officers) in an action alleging that the City Officers violated the Fourth and Fourteenth Amendments ...


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