                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

MICAH JESSOP; BRITTAN ASHJIAN,                     No. 17-16756
               Plaintiffs-Appellants,
                                                     D.C. No.
                     v.                           1:15-cv-00316-
                                                    DAD-SAB
CITY OF FRESNO; DERIK KUMAGAI;
CURT CHASTAIN; TOMAS CANTU,
             Defendants-Appellees.                   OPINION



        Appeal from the United States District Court
           for the Eastern District of California
         Dale A. Drozd, District Judge, Presiding

          Argued and Submitted December 18, 2018
                  San Francisco, California

                      Filed March 20, 2019

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

             Opinion by Judge Milan D. Smith, Jr.




     *
       The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2                  JESSOP V. CITY OF FRESNO

                          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

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 JESSOP V. CITY OF FRESNO                  3

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.


                        COUNSEL

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.


                        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
4                 JESSOP V. CITY OF FRESNO

alleging that the City Officers violated the Fourth and
Fourteenth Amendments when they stole Appellants’
property after conducting a search and seizure pursuant to a
warrant.

    We need not—and do not—decide whether the City
Officers violated the Constitution. 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. For
that reason, the City Officers are entitled to qualified
immunity.

    FACTUAL AND PROCEDURAL BACKGROUND

    As part of an investigation into illegal gambling
machines in the Fresno, California area, the City Officers
executed a search warrant at three of Appellants’ properties
in Fresno. The warrant, signed by Fresno County Superior
Court Judge Dale Ikeda, authorized the

        seiz[ure] [of] all monies, negotiable
        instruments, securities, or things of value
        furnished or intended to be furnished by any
        person in connection to illegal gambling or
        money laundering that may be found on the
        premises . . . [and] [m]onies and records of
        said monies derived from the sale and or
        control of said machines.

If the City Officers found the property listed, they were “to
retain it in [their] custody, subject to the order of the court as
provided by law.”

   Following the search, the City Officers gave Appellants
an inventory sheet stating that they seized approximately
                  JESSOP V. CITY OF FRESNO                     5

$50,000 from the properties. Appellants allege, however,
that the officers actually seized $151,380 in cash and another
$125,000 in rare coins. Appellants claim 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.

    Appellants brought suit in the Eastern District of
California alleging, among other things, claims against the
City Officers pursuant to 42 U.S.C. § 1983 for Fourth and
Fourteenth Amendment violations. The City Officers
moved for summary judgment on the basis of qualified
immunity. The district court granted the motion and
dismissed all of Appellants’ claims.

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review summary judgment determinations, and officers’
entitlement to qualified immunity, de novo. Glenn v.
Washington County, 673 F.3d 864, 870 (9th Cir. 2011).

                         ANALYSIS

    “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “In determining whether an officer is entitled to
qualified immunity, we consider (1) whether there has been
a violation of a constitutional right; and (2) whether that right
was clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th
Cir. 2014).
6                JESSOP V. CITY OF FRESNO

I. Fourth Amendment

    The parties dispute whether the City Officers’ actions
violated the Fourth Amendment. The City Officers insist
that because they seized Appellants’ assets pursuant to a
valid warrant, there was no Fourth Amendment violation.
Appellants, on the other hand, argue that the City Officers’
alleged theft was an unreasonable seizure that violated the
Fourth Amendment.

    We need not address the merits of the Fourth
Amendment claim. Although courts were formerly required
to determine whether plaintiffs had been deprived of a
constitutional right before proceeding to consider whether
that right was clearly established when the alleged violation
occurred, see Saucier v. Katz, 533 U.S. 194, 201 (2001), that
requirement has been eliminated. The Supreme Court has
instructed that courts have the discretion to determine which
prong of qualified immunity should be analyzed first.
Pearson, 555 U.S. at 236. Indeed, the Court has urged us to
“think carefully before expending ‘scarce judicial resources’
to resolve difficult and novel questions of constitutional or
statutory interpretation that will ‘have no effect on the
outcome of the case.’” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) (quoting Pearson, 555 U.S. at 236–37).
Addressing the second prong before the first is especially
appropriate, therefore, where “a court will rather quickly and
easily decide that there was no violation of clearly
established law.” Pearson, 555 U.S. at 239. This is one of
those cases.

    To determine whether a defendant violated an
individual’s clearly established rights, we must determine
“‘whether the state of the law’ at the time of an incident
provided ‘fair warning’” to the defendant that his or her
conduct was unconstitutional. Tolan v. Cotton, 572 U.S.
                 JESSOP V. CITY OF FRESNO                    7

650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741
(2002)). “We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 563 U.S.
at 741. Thus, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). “[W]e may look at unpublished
decisions and the law of other circuits, in addition to Ninth
Circuit precedent.” Prison Legal News v. Lehman, 397 F.3d
692, 702 (9th Cir. 2005).

    We have never before addressed whether the theft of
property covered by the terms of a search warrant and seized
pursuant to that warrant violates the Fourth Amendment. At
the time of the incident, the five circuits that had addressed
that question, or the similar question of whether the
government’s refusal to return lawfully seized property
violates the Fourth Amendment, had reached different
results. Compare Case v. Eslinger, 555 F.3d 1317, 1330
(11th Cir. 2009), Lee v. City of Chicago, 330 F.3d 456, 460–
66 (7th Cir. 2003), Fox v. Van Oosterum, 176 F.3d 342, 349–
51 (6th Cir. 1999), and United States v. Jakobetz, 955 F.2d
786, 802 (2d Cir. 1992), with Mom’s Inc. v. Willman, 109 F.
App’x 629, 636–37 (4th Cir. 2004).

    The Second, Sixth, Seventh, and Eleventh Circuits have
held that the government’s failure to return property seized
pursuant to a warrant does not violate the Fourth
Amendment. Some of these courts have reasoned that
because “the word ‘seizure’ [has been] defined as a
temporally limited act,” the Fourth Amendment provides
protection only against the initial taking of property, not its
continued retention. Lee, 330 F.3d at 462; accord Fox, 176
F.3d at 351 (“[T]he Fourth Amendment protects an
8                 JESSOP V. CITY OF FRESNO

individual’s interest in retaining possession of property but
not the interest in regaining possession of property.”).
Others have said that the failure to return seized property to
its owner does not implicate the underlying rationales of the
Fourth Amendment. Jakobetz, 955 F.2d at 802.

     The Fourth Circuit, on the other hand, has held that
federal agents violate the Fourth Amendment when they
steal property that is seized during the execution of a search
warrant. Mom’s Inc., 109 F. App’x at 637. The court relied
on the Supreme Court’s decision in United States v. Place,
462 U.S. 696, 706 (1983), and reasoned that the Fourth
Amendment “regulates all [] interference” with an
individual’s possessory interests in property, “not merely the
initial acquisition of possession.” Id. Thus, because the
agents’ theft of the plaintiff’s watch interfered with the
plaintiff’s interest in it, “such theft violates the Fourth
Amendment.” Id.

    The absence of “any cases of controlling authority” or a
“consensus of cases of persuasive authority” on the
constitutional question compels the conclusion that the law
was not clearly established at the time of the incident.
Wilson v. Layne, 526 U.S. 603, 617 (1999). Although the
City Officers ought to have recognized that the alleged theft
of Appellants’ money and rare coins would be improper,
they did not have clear notice that it violated the Fourth
Amendment.

     Nor is this “one of those rare cases in which the
constitutional right at issue is defined by a standard that is so
‘obvious’ that we must conclude . . . that qualified immunity
is inapplicable, even without a case directly on point.” A.D.
v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013).
The allegation of any theft by police officers—most
certainly the theft of over $225,000—is undoubtedly deeply
                 JESSOP V. CITY OF FRESNO                  9

disturbing. Whether that conduct violates the Fourth
Amendment’s prohibition on unreasonable searches and
seizures, however, is not obvious. The split in authority on
the issue leads us to conclude so. See Wilson, 526 U.S. at
618 (where “judges [] disagree on a constitutional question,
it is unfair to subject police to money damages for picking
the losing side of the controversy”).

    In the absence of binding authority or a consensus of
persuasive authority on the issue, Appellants have failed to
demonstrate that it was clearly established that the City
Officers’ alleged conduct violated the Fourth Amendment.
Accordingly, we hold that the City Officers are protected by
qualified immunity against Appellants’ Fourth Amendment
claim.

II. Fourteenth Amendment

    Appellants’ Fourteenth Amendment claim suffers the
same fate. Appellants argue that the City Officers’ theft of
their property violated their substantive due process rights
under the Fourteenth Amendment. Assuming that to be true,
however, the City Officers are entitled to qualified immunity
because that right was not clearly established. We have not
held that officers violate the substantive due process clause
of the Fourteenth Amendment when they steal property that
is seized pursuant to a warrant. The Seventh Circuit is the
only circuit that has addressed the related question of
whether the government’s refusal to return lawfully seized
property to its owner violates the Fourteenth Amendment; it
held that the substantive due process clause does not provide
relief against such conduct. See Lee, 330 F.3d at 466–68.
Because the City Officers could not have known that their
actions violated the Fourteenth Amendment’s substantive
due process clause, they are entitled to qualified immunity
against Appellants’ Fourteenth Amendment claim.
10                 JESSOP V. CITY OF FRESNO

                         CONCLUSION

    We sympathize with Appellants. They allege the theft of
their personal property by police officers sworn to uphold
the law. Appellants may very well have other means through
which they may seek relief. 1 But not all conduct that is
improper or morally wrong violates the Constitution.
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.

     AFFIRMED.




     1
     Indeed, the district court noted in its Order Granting Defendants’
Motion for Summary Judgment that Appellants “had access to an
adequate post-deprivation remedy under California tort law.”
