Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

The sworn representatives of a government of the people must be held to a higher legal standard than the rest of us, not a lower one.

The Ninth Circuit isn’t known for sound constitutional jurisprudence. But a unanimous opinion issued by a three-judge panel last month might just be a new low for the country’s largest — and most controversial — appeals court.

The case in question, Jessop v. City of Fresno, concerns the alleged theft of $276,000 by City of Fresno police officers while carrying out a raid in search of illegal gambling machines. Pursuant to a warrant authorizing the officers to seize any such machines, as well as any money connected to the sale or control of them, the officers officially seized approximately $50,000.


In reality, according to appellants Micah Jessop and Brittan Ashjian, the officers stole an additional $276,000 in cash and rare coins for themselves. Jessop and Ashjian sued the officers for violating their right not to face unreasonable searches and seizures under the Fourth Amendment and their right to due process of the law under the Fourteenth Amendment. They hoped to find justice, but they were in for a rude awakening.

Both the trial court and the three-judge panel of the Ninth Circuit ruled that, 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.”

Yes, you read that correctly. Apparently, according to the Ninth Circuit, you don’t have a “clearly established” right to not have police steal your property while executing a search warrant (though you may be able to pursue a claim against the offending officers under state tort law, and the state is presumably still free to prosecute them).



Unfortunately, the injustice suffered by Micah Jessop and Brittan Ashjian in this case is a symptom of a larger disease: the reflexive, blind deference most courts show to government officials even when they are clearly in the wrong.

Under the Supreme Court’s doctrine of qualified immunity, courts will hold government officials liable for violating the rights of their fellow citizens only if a prior court, adjudicating another case with virtually identical facts, has already held that such conduct was unconstitutional, effectively ensuring that nearly zero government officials ever face federal trial for their crimes.

In essence, police officers and other government officials, theoretically those members of society best equipped to know the current state of the law, are held to a significantly lower standard of legal conduct than ordinary citizens, for whom ignorance of the law is not a defense.


This toxic deference to government authority also extends far beyond the context of police misconduct. Courts regularly allow federal agencies to define the scope of their own authority and redefine what their own regulations mean on the fly, with little to no oversight. State and local governments are routinely permitted to pass laws protecting the business enterprises of well-established and politically connected individuals from upstart competitors under the barest and most transparent of pretenses, often with the courts themselves proffering potential justifications to help the government’s case.

The Ninth Circuit’s decision in Jessop may be a particularly egregious example of the toxic deference that has infected this nation’s court system, but it’s far from an isolated one. It is imperative that the Supreme Court re-embrace the judicial branch’s duty to act as a check on abuse of government power.

Luckily, the Court will soon have a chance to do just that. Late last month, the justices heard oral arguments in Kisor v. Wilkie, a case in which they could very well overturn a 1997 opinion granting administrative agencies deference to interpret their own regulations in any way they please. Justices Roberts, Alito, Kavanaugh, Thomas, and Gorsuch have been increasingly critical of such deference. Here’s hoping 2019 is the year that the courts finally begin the hard work of reining in unaccountable, out-of-control government officials.