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Ninth Circuit Reversal


Ninth Circuit Judges Reinhardt and Paez have been reversed again. This time by ... [drum roll] ... Judges Reinhardt and Paez. Hat tip: Decision of the Day.

Lionel Mendez was pulled over by two Phoenix officers for not having a valid license plate. They talked to him during the stop, and he said he had been a gang member and done prison time. They asked if he had weapons in the car, and he admitted he did. The original opinion concluded, "Mendez’s Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceeded the scope of the traffic stop." Judge Tallman's dissent began, "Here we go again."

Today the panel withdrew the original opinion and replaced it with a new one, which concludes,

We hold that the officers’ questioning of Mendez did not extend the duration of a lawful stop. For this reason, we also hold that the expanded questioning need not have been supported by separate reasonable suspicion.

The original opinion failed to take into account the Supreme Court decision in Muehler v. Mena, which reversed a Ninth Circuit decision on similar reasoning. Mena, BTW, was written by Judge Pregerson, joined by a visiting senior judge and ... bonus points for guessing.

Some Ninth Circuit judges consider being reversed by the Supreme Court to be a "badge of honor," but even a badge of honor can cease to be memorable when it is bestowed too often.


I had no idea that opinions could be pulled liked this. How often does this happen?

It happens occasionally, although it is usually in response to a petition for rehearing. In this case, the docket shows the parties filing briefs regarding rehearing en banc with no mention of panel rehearing. Then the panel issues this completely different opinion. That is unusual.

The Ninth does seem to correct its opinions a lot. Someone ought to tell them that they can read the WestLaw electronic copies or the soft-cover versions, proof them, and then submit changes directly to West--then, when the hardbound books come out, the opinion is fixed, without the visibility of a amended opinion, of course, that's really only supposed to be for typos, but it was a nice option.

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