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A few hours after the initial searches, Jessop and Ashjian told the court, Kumagai returned alone to Jessops house while his wife was home alone and said he needed to search it a second time. From there, they allege that Kumagai went into the bedroom, where the officers had previously observed that Jessop kept a collection of rare coins, purportedly valued at $125,000. Kumagai spent several minutes alone in the bedroom, making this second sweep, and then left after saying his investigation was finished. According to their petition, the officers seized more than $275,000 from their searches, including the the coin collection, creating a discrepancy with the police inventory sheet the officers filed later that night, which stated that the officers had only seized $50,000 in cash. No charges were filed against Jessop and Ashjian, though the city and officers say they avoided charges by agreeing to become informants and forfeiting the $50,000.

In their reply brief for the court, the officers and the city categorically deny that any theft took place. The brief strongly implies without stating outright that Jessop may be exaggerating the coin collections existence and value. They also note that the plaintiffs didnt bring a lawsuit until two years later, after Kumagai was arrested in 2015 for what the city describes as an unrelated incident. In that incident, federal prosecutors said that Kumagai told a suspected drug dealer in 2013 that he could shield him from a federal investigation and get him registered as a confidential informant in exchange for a $40,000 bribe. Kumagai eventually pleaded guilty to accepting $20,000 and received a two-year prison sentence.

Whether the thefts really happened, however, doesnt actually matter at this point in the litigation. When public officials ask a court to dismiss a lawsuit against them on qualified-immunity grounds, courts always assume that the plaintiffs allegations are factual when considering the request. Its unsurprising that the officers and the city want to strenuously insist that they didnt do what the plaintiffs claim they did. But its also irrelevant as a factor for judges to consider in qualified-immunity cases. If theres a factual disputeand there often isthats what the trial, which the officers are trying to avoid, is supposed to untangle.

The Supreme Courts test for qualified immunity hinges on whether the officers alleged actions were not just unconstitutional, but clearly established as unconstitutional at the time. Courts typically rely on federal court opinions to determine this. In the Jessop case, both the district court and the Ninth Circuit found no clear precedent to establish that the Fourth Amendment barred officers from stealing during a search. The Ninth Circuits survey of cases found only an unpublished Fourth Circuit case from 2004 that found it would be unconstitutional to not return seized property and a Ninth Circuit case from 2017 on impounding vehicles without a warrant. Thats not enough for a consensus, the panel found.

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To Protect and Serve, or Pilfer and Steal? - The New Republic