and Submitted December 18, 2018 San Francisco, California
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
G. Little, Esquire (argued), Law Office of Kevin G. Little,
Fresno, California, for Plaintiffs-Appellants.
P. Barer (argued), Pollak, Vida & Barer, Los Angeles,
California, for Defendants-Appellees City of Fresno, Curt
Chastain, Tomas Cantu, and Derik Kumangai.
J. Ferguson and Allen Christiansen, Ferguson, Praet &
Sherman, APC, Santa Ana, California, for Defendants-Appellees
the City of Fresno, Curt Chastain and Tomas Cantu.
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.
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.
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.
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
SMITH, CIRCUIT JUDGE
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