                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 MICAH JESSOP; BRITTAN                          No. 17-16756
 ASHJIAN,
          Plaintiffs-Appellants,                 D.C. No.
                                           1:15-cv-00316-DAD-
                  v.                               SAB

 CITY OF FRESNO; DERIK
 KUMAGAI; CURT CHASTAIN;                       ORDER AND
 TOMAS CANTU,                                   OPINION
         Defendants-Appellees.

        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 September 4, 2019

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




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

                          Order;
           Opinion by Judge Milan D. Smith, Jr.;
          Concurrence by Judge Milan D. Smith, Jr.


                          SUMMARY **


                           Civil Rights

    The panel withdrew its prior opinion, found at Jessop v.
City of Fresno, 918 F.3d 1031 (9th Cir. 2019), and filed a
superseding opinion in its place.

    The panel affirmed the district court’s order granting the
City of Fresno police officers’ motion for summary
judgment in an action alleging that the officers violated the
Fourth and Fourteenth Amendments when they stole
Appellants’ property during the execution of 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 actually seized
from the properties.

   The panel held that at the time of the incident, there was
no clearly established law holding that officers violate the

    **
       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

Fourth or Fourteenth Amendment when they steal property
seized pursuant to a warrant. For that reason, the City
Officers were entitled to qualified immunity. The panel
reasoned that although the decision in Brewster v. Beck,
859 F.3d 1194 (9th Cir. 2017) was instructive on the
question of whether the theft of property covered by the
terms of a search warrant, and seized pursuant to the warrant,
violates the Fourth Amendment, Brewster’s facts varied in
legally significant ways from those in this case. Moreover,
the panel noted that the City Officers seized Appellants’
property in 2013, prior to the Brewster decision in 2017. The
panel held that although the City Officers ought to have
recognized that the alleged theft was morally wrong, they did
not have clear notice that it violated the Fourth Amendment.
The panel further held that the Fourth Circuit’s unpublished
decision in Mom’s Inc. v. Willman, 109 F. App’x 629, 636–
37 (4th Cir. 2004)—the only case law that the time of the
incident holding that the theft of property pursuant to a
warrant violates the Fourth Amendment—did not put the
“constitutional question beyond debate.”

    Specially concurring, Judge M. Smith wrote separately
to share his view of why, even if Brewster were decided
before the City Officers’ alleged theft, it was not clear that
the City Officers violated the Fourth Amendment.



                        COUNSEL

Kevin G. Little, Esquire, Law Office of Kevin G. Little,
Fresno, California; Neal K. Katyal, Colleen E. Roh Sinzdak,
and Mitchell P. Reich, Hogan Lovells US LLP, Washington,
D.C.; for Plaintiffs-Appellants.
4               JESSOP V. CITY OF FRESNO

Daniel P. Barer, Pollak Vida & Barer, Los Angeles,
California; Peter J. Ferguson and Allen Christiansen,
Ferguson Praet & Sherman APC, Santa Ana, California;
Kevin M. Osterberg, Haight Brown & Bonesteel LLP,
Riverside, California; for Defendants-Appellees.

Jessica Ring Amunson and Andrew C. Noll, Jenner & Block
LLP, Washington, D.C., for Amici Curiae The DKT Liberty
Project, Reason Foundation, Individual Rights Foundation,
Public Justice, National Police Accountability Project, Law
Enforcement Action Partnership, Institute for Justice, and
Americans for Prosperity.

Clark M. Neily III and Jay R. Schweikert, Washington, D.C.,
as and for Amicus Curiae The Cato Institute.

C. Mitchell Hendy, Mayer Brown LLP, Los Angeles,
California; Donald M. Falk, Mayer Brown LLP, Palo Alto,
California; for Amici Curiae National Association of
Criminal Defense Lawyers, American Civil Liberties Union
of Northern California, and American Civil Liberties Union
of Southern California.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis,
Minnesota, for Amici Curiae Restore the Fourth, Inc. and
Americans for Forfeiture Reform.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, Texas;
Mark Chenoweth, Michael P. DeGrandis, and Caleb
Kruckenberg, New Civil Liberties Alliance; for Amicus
Curiae New Civil Liberties Alliance.
                 JESSOP V. CITY OF FRESNO                    5

                          ORDER

   The prior opinion in this case, found at Jessop v. City of
Fresno, 918 F.3d 1031 (9th Cir. 2019), is hereby withdrawn.
A superseding opinion will be filed concurrently with this
order. Plaintiffs-Appellants’ petition for rehearing en banc
remains pending.


                         OPINION

M. SMITH, Circuit Judge:

    Micah Jessop and Brittan Ashjian (Appellants) appeal an
order granting a motion for summary judgment on a defense
of qualified immunity. City of Fresno and Fresno police
officers Derik Kumagai, Curt Chastain, and Tomas Cantu
(the City Officers) filed the motion in an action alleging that
the City Officers violated the Fourth and Fourteenth
Amendments when they stole Appellants’ property during
the execution of a search and seizure pursuant to a warrant.

    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 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.
The warrant, signed by Fresno County Superior Court Judge
Dale Ikeda, authorized the
6                 JESSOP V. CITY OF FRESNO

        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
$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 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 based on 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).
                  JESSOP V. CITY OF FRESNO                     7

                         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).

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, they did not violate the Fourth Amendment.
Appellants, by contrast, argue that the City Officers’ alleged
theft was an unreasonable seizure under the Fourth
Amendment.

     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), the Supreme Court has
since instructed that courts may determine which prong of
qualified immunity they should analyze first. Pearson,
555 U.S. at 236. Addressing the second prong before the
first is especially appropriate where “a court will rather
quickly and easily decide that there was no violation of
8                   JESSOP V. CITY OF FRESNO

clearly established law.” Id. at 239. This is one of those
cases.

    A defendant violates an individual’s clearly established
rights only when “‘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.
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.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). 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 addressed whether the theft of property
covered by the terms of a search warrant, and seized
pursuant to that warrant, violates the Fourth Amendment.1
The only circuit that has addressed that question—the Fourth
Circuit—concluded in an unpublished decision that it does.
See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th
Cir. 2004). Mom’s involved federal agents who failed to
return the plaintiff’s watch after the execution of a search
warrant. Id. at 633. Relying on the Supreme Court’s

    1
       Importantly, we observe that the technical legal question of
whether the theft of property covered by the terms of a search warrant,
and seized pursuant to that warrant, violates the Fourth Amendment is a
different question from whether theft is morally wrong. We recognize
that theft is morally wrong, and acknowledge that virtually every human
society teaches that theft generally is morally wrong. That principle does
not, however, answer the legal question presented in this case.
                  JESSOP V. CITY OF FRESNO                      9

decision in United States v. Place, 462 U.S. 696 (1983), the
court reasoned that the Fourth Amendment “regulates all []
interference” with an individual’s possessory interests in
property, “not merely the initial acquisition of possession.”
Mom’s, 109 F. App’x at 637. Thus, because the agents’ theft
of the watch interfered with the plaintiff’s interest in it, “such
theft violates the Fourth Amendment.” Id.

      Although we have not addressed this precise question,
our decision in Brewster v. Beck is instructive. 859 F.3d
1194 (9th Cir. 2017). There, officers impounded the
plaintiff’s vehicle pursuant to a statute that authorized the
seizure of vehicles when the driver had a suspended license.
Id. at 1195. When the plaintiff later “appeared at a hearing
. . . with proof that she was the registered owner of the
vehicle and her valid California driver’s license,” however,
the government refused to release the vehicle to her. Id. We
reasoned that the Fourth Amendment was implicated by the
government’s actions because “[t]he Fourth Amendment
doesn’t become irrelevant once an initial seizure has run its
course.” Id. at 1197. Because “[t]he exigency that justified
the seizure [of the plaintiff’s vehicle] vanished once the
vehicle arrived in impound and [the plaintiff] showed up
with proof of ownership and a valid driver’s license,” we
held that the government’s impoundment of the vehicle
“constituted a seizure that required compliance with the
Fourth Amendment.” Id. at 1196–97.

    Brewster’s reasoning suggests that the City Officers’
alleged theft of Appellants’ property could also implicate the
Fourth Amendment. Although the City Officers seized
Appellants’ money and coins pursuant to a lawful warrant,
their continued retention—and alleged theft—of the
property might have been a Fourth Amendment seizure
because “[t]he Fourth Amendment doesn’t become
10               JESSOP V. CITY OF FRESNO

irrelevant once an initial seizure has run its course.” Id.
at 1197.

    Brewster’s facts, however, vary in legally significant
ways from those in this case. Whereas Brewster concerned
the government’s impoundment of a vehicle, id. at 1195,
Appellants argue that the City Officers stole their property.
And while Brewster involved the seizure of property
pursuant to an exception to the warrant requirement, id.
at 1196, the City Officers seized Appellants’ property
pursuant to a warrant that authorized the seizure of the items
allegedly stolen.

    Even if the facts and reasoning of Brewster would dictate
the outcome of this case, however, it was not clearly
established law when the City Officers executed the search
warrant. The City Officers seized Appellants’ property in
2013, but Brewster was not decided until 2017. For that
reason, we need not decide whether the City Officers
violated the Fourth Amendment. The lack 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
was morally wrong, they did not have clear notice that it
violated the Fourth Amendment—which, as noted, is a
different question. The Fourth Circuit’s unpublished
decision in Mom’s—the only case law at the time of the
incident holding that the theft of property seized pursuant to
a warrant violates the Fourth Amendment—did not put the
“constitutional question beyond debate.” al-Kidd, 563 U.S.
at 741.
                   JESSOP V. CITY OF FRESNO                         11

     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).
We recognize that the allegation of any theft by police
officers—most certainly the theft of over $225,000—is
deeply disturbing. Whether that conduct violates the Fourth
Amendment’s prohibition on unreasonable searches and
seizures, however, would not “be ‘clear to a reasonable
officer.’” Id. at 454 (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004) (per curiam)). 2

    Appellants have failed to show 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
seized pursuant to a warrant. The Seventh Circuit is the only

    2
      As the district court recognized, such conduct might instead be
punishable under California tort law. Cf. United States v. Jakobetz,
955 F.2d 786, 802 (2d Cir. 1992) (“Jakobetz may be able to argue that a
New York court violated a statutory right under New York law.”).
12                JESSOP V. CITY OF FRESNO

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 that conduct. See Lee v. City of Chicago, 330 F.3d
456, 466–68 (7th Cir. 2003). 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.

                       CONCLUSION

    We sympathize with Appellants. They allege the theft of
their personal property by police officers sworn to uphold
the law. If the City Officers committed the acts alleged, their
actions were morally reprehensible. Not all conduct that is
improper or morally wrong, however, 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.



M. SMITH, Circuit Judge, specially concurring:

     As the panel opinion recognizes, there is no question that
the City Officers’ alleged conduct, if true, was morally
reprehensible. Whether something violates the Fourth
Amendment, however, is a different question from whether
it is outrageous and morally wrong. I write separately to
share my view why, even if Brewster v. Beck were decided
before the City Officers’ alleged theft, it is not clear that the
                 JESSOP V. CITY OF FRESNO                   13

officers violated the Fourth Amendment. 859 F.3d 1194 (9th
Cir. 2017).

    Brewster’s reasoning appears to conflict with the
Supreme Court’s jurisprudence on Fourth Amendment
seizures. The Court has defined a seizure as “a single act,
and not a continuous fact.” Thompson v. Whitman, 85 U.S.
(18 Wall.) 457, 471 (1873). “From the time of the founding
to the present, the word ‘seizure’ has meant a ‘taking
possession.’” California v. Hodari D., 499 U.S. 621, 624
(1991) (quoting 2 N. Webster, An American Dictionary of
the English Language 67 (1828); 2 J. Bouvier, A Law
Dictionary 510 (6th ed. 1856); Webster’s Third New
International Dictionary 2057 (1981)). Whereas Brewster
held that the Fourth Amendment continues to apply after the
government’s initial seizure of property, these Supreme
Court cases suggest that, once the government has taken
possession of property, a seizure is complete. It is
“[p]ossession, which follows seizure, [that] is continuous.”
Thompson, 85 U.S. (18 Wall.) at 471.

    Perhaps because of the Court’s case law, Brewster’s
reasoning also conflicts with that of several other circuits,
which have concluded that the Fourth Amendment provides
protection only against the initial taking of property, not its
continued retention. See 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); see also Case v. Eslinger,
555 F.3d 1317, 1330 (11th Cir. 2009) (government’s
continued retention of seized property did not violate the
Fourth Amendment because the officer “had probable cause
to seize [the plaintiff’s] property”); United States v.
Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992) (government’s
continued retention of seized property implicates “a
14               JESSOP V. CITY OF FRESNO

statutory right under New York law,” not the Fourth
Amendment).

    Here, the City Officers obtained a warrant that
authorized them “[t]o seize all monies . . . 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.” Accordingly, the warrant
permitted the City Officers to seize the money and rare coins
that Appellants argue the City Officers stole from them.
Under the reasoning of the Supreme Court and several
circuits cited above, therefore, Appellants’ Fourth
Amendment claim appears to fail. Because the City
Officers’ initial seizure of Appellants’ property was lawful,
and because a Fourth Amendment seizure is complete after
the government has taken possession of the property,
Appellants would not be able to state a Fourth Amendment
claim against the City Officers for their theft of the property
after its lawful seizure.

    As the opinion notes, Mom’s Inc. v. Willman is the only
decision to have held that the theft of property seized
pursuant to a warrant violates the Fourth Amendment.
109 F. App’x 629 (4th Cir. 2004). There, the Fourth Circuit
relied on United States v. Place, 462 U.S. 696, 706 (1983)
for the proposition that “[t]he Fourth Amendment regulates
all [] interference” with a person’s property interests, “not
merely the initial acquisition of possession.” Id. at 637.

    In Place, the Court held that an officer’s reasonable
suspicion that property may be involved in a crime permits
the officer “to detain the luggage briefly . . . provided that
the investigative detention is properly limited in scope.”
Place, 462 U.S. at 706. After that brief amount of time has
passed, however, probable cause is required to justify an
officer’s continued seizure of the property. Id. at 709–10.
                 JESSOP V. CITY OF FRESNO                   15

Place thus addresses when an investigatory seizure of
property might be reasonable when based on a level of
suspicion less than probable cause. The case is instructive
for how far officers can go in searching or seizing property
without probable cause. But Place is inapposite in a case
such as this in which officers have established probable
cause and obtained a warrant for the property that is seized.
Place, therefore, does not support the weight that Mom’s put
on it.

    Although the question appears to have an obvious
answer at first blush, it is not clear whether the theft of
property seized pursuant to the warrant violates the Fourth
Amendment. The Supreme Court was mindful of cases such
as this when it admonished courts not to resolve “difficult
and novel questions of constitutional . . . interpretation that
will ‘have no effect on the outcome of the case.’” Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Pearson v.
Callahan, 555 U.S. 223, 236–37 (2009)). We need not
attempt to reconcile the conflicting case law. As the panel
opinion acknowledges, the lack of clearly established law at
the time of the incident compels the conclusion that the City
Officers are entitled to qualified immunity.
