Fresno cops accused of stealing didn't violate Constitution even if they did it, court says

FRESNO, Calif. (KFSN) -- Fresno police are accused of stealing hundreds of thousands of dollars, but judges say they can't be sued for it because the Constitution doesn't protect us from officers who steal.

"Of course it should be unconstitutional for officers to come into your house and have a warrant and then steal your property," said Kevin Little, who tried to sue on behalf of two businessmen who say the 2013 theft involved a now-disgraced police officer.

But if they're going to win, they might have to take the case to the Supreme Court.

Fresno police raids at their homes and business turned up some evidence of a possible illegal gambling operation involving coin pusher machines.

And according to the police, it turned up about $50,000 in cash.

But Brittan Ashjian and Micah Jessop say the officers took much more from their legal ATM business.

"This was the perfect case to prove what, in my opinion, happens all too often: That officers go beyond the scope of the search warrant and steal property when they go into people's homes," Little said.

He filed a civil rights lawsuit for Ashjian and Jessop claiming the officers took more than $150,000 in cash and $125,000 in rare coins.

The suit targets the city of Fresno and Officer Derik Kumagai, who they blame for stealing the coins and maybe more.

He later went to prison for accepting a bribe from a suspected drug dealer.

But in this case, the Ninth Circuit Court of Appeals in San Francisco ruled in favor of the city and the officers.

The opinion says there's no clear law holding that police violate the 4th Amendment protection against illegal search and seizure or the 14th Amendment right to due process when they steal property while serving a search warrant.

"That's preposterous and I think that's a travesty of justice," said legal analyst Tony Capozzi. "If police officers come into your house or into your business and follow up with a search warrant, that's fine. They can do that, but they have to follow the rules and regulations. They can't steal money."

Capozzi says the judges are ruling the officers have qualified immunity, which protects police when they're doing their jobs.

But this case could end up in the Supreme Court, which could refine the rules for qualified immunity.

"Even with the Supreme Court of the United States, which is conservative at this point in time, they will reverse this case because I think the common feeling now is you can't allow this type of activity to happen," Capozzi said.

Justices Sonia Sotomayor and Clarence Thomas have both expressed concerns about qualified immunity, but it could be months before they decide whether to hear this case.

Little said he's gotten a lot of offers to help take the case to the highest court.

"The reason why this opinion has caught so much attention is because I think it's contrary to what our gut as citizens tells us," Little said.

The city attorney's office told Action News it could not comment on the case.

Prosecutors never charged Ashjian or Jessop with a crime in connection with the raids.