Micah Jessop v. City of Fresno, 918 F.3d 1031

Fresno police executed a warrant at three properties searching for proceeds of illegal gambling; the warrant authorized seizure and retention of monies and things of value.
Officers provided an inventory stating they seized about $50,000; plaintiffs (Jessop and Ashjian) allege officers actually seized $151,380 cash plus $125,000 in rare coins and stole the difference.
Plaintiffs sued under 42 U.S.C. § 1983 for Fourth Amendment (unreasonable seizure) and Fourteenth Amendment (substantive due process) violations; defendants moved for summary judgment based on qualified immunity.
The district court granted summary judgment for the officers; plaintiffs appealed to the Ninth Circuit.
The Ninth Circuit assumed it need not decide whether a constitutional violation occurred and instead evaluated whether the right was clearly established at the time.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether theft of property seized under a warrant violates the Fourth Amendment	Theft or failure to return seized property is an unreasonable seizure under the Fourth Amendment	Seizure pursuant to a valid warrant precludes a Fourth Amendment violation; at minimum law was not clearly established	Court declined to decide the merits; held right was not clearly established, so officers entitled to qualified immunity
Whether theft of property seized under a warrant violates substantive due process (Fourteenth Amendment)	Officers’ alleged theft deprives property without due process, violating substantive due process	No clearly established Fourteenth Amendment right; defendants entitled to qualified immunity	Held the right was not clearly established; officers entitled to qualified immunity

Pearson v. Callahan, 555 U.S. 223 (establishes qualified immunity framework and discretion to decide prongs)
Harlow v. Fitzgerald, 457 U.S. 800 (formulation of qualified immunity standard)
Saucier v. Katz, 533 U.S. 194 (previous rule requiring constitutional ruling first)
Ashcroft v. al-Kidd, 563 U.S. 731 (guidance on avoiding novel constitutional questions when unnecessary)
Tolan v. Cotton, 572 U.S. 650 ("fair warning" standard for clearly established law)
Hope v. Pelzer, 536 U.S. 730 (clarifies when officials have notice of constitutional violation)
Anderson v. Creighton, 483 U.S. 635 (contours of clearly established rights)
Wilson v. Layne, 526 U.S. 603 (absence of controlling authority or consensus affects clearly established analysis)
United States v. Place, 462 U.S. 696 (discusses possessory interests relevant to seizure analysis)
Case v. Eslinger, 555 F.3d 1317 (Eleventh Circuit: retention/non-return of seized property not a Fourth Amendment violation)
Lee v. City of Chicago, 330 F.3d 456 (Seventh Circuit: Fourth and Fourteenth Amendment not implicated by failure to return seized property)
Fox v. Van Oosterum, 176 F.3d 342 (Sixth Circuit: Fourth Amendment protects initial taking, not regaining possession)
United States v. Jakobetz, 955 F.2d 786 (Second Circuit: refusal to return seized property does not implicate Fourth Amendment)
Prison Legal News v. Lehman, 397 F.3d 692 (Ninth Circuit: may consider unpublished and other-circuit decisions in clearly established analysis)