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Only in the Ninth

Yesterday, the Ninth Circuit pseudo en banc* decided the case of Fisher v. City of San Jose.

We address the Fourth Amendment's exigent circumstances doctrine in the context of armed standoffs. Steven Fisher triggered a standoff with San Jose police after he pointed a rifle at a private security guard who was investigating loud noises in Fisher's apartment complex. When the police arrived at his apartment, a noticeably intoxicated Fisher pointed one of his eighteen rifles at the officers and threatened to shoot them. The ensuing standoff lasted more than twelve hours and ended peacefully when Fisher finally emerged and allowed himself to be taken into custody. We hold that Fisher's civil rights were not violated when police arrested him without a warrant.

Nothing remarkable there. Here is the weird part. Believe it or not, there is actually a dissent to that, and the final vote is only 6-5 in a clear, easy case that should be unanimous.
* Most cases in the federal courts of appeals are decided by a three-judge panel. However, in the case of conflicting decisions or especially important cases, the court can rehear them "en banc." In all circuits except the Ninth, "en banc" means all the "active" judges of the court, excluding the semiretired "senior" judges.

However, the Ninth is so large that a hearing by all the judges would require renting Pac Bell SBC AT&T Park, so "en banc" here on the Left Coast means a larger panel of 11 judges, which is probably (though not necessarily) more representative of the full court than a random selection of 3.


I didnt really get the "constructive seizure" thing. Hodari D. seems to foreclose that idea, doesn't it?

That Kozinksi joined the Reinhardt dissent is both distressing and telling.

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