Sunday, January 26, 2020

Case o' The Week: Red Flags for the SCOTUS Bull - Cooley and En Banc Order Opinions

 Much Ado about Nothing, or a Comedy of Errors?
United States v. Cooley, 2020 WL 399390 (9th Cir. Jan. 24, 2020) (Ord. denying reh’g en banc), order available here.

 Players: Judges Berzon and Hurwitz, concurring in the denial of rehearing en banc. Judges Collins, Bea, Bennett, and Bress dissent.  

Hon. Judge Marsha Berzon
Hon. Judge Daniel Collins
Facts: In an opinion filed in 2019, a three-judge panel considered a district court’s grant of a motion to suppress. United States v. Cooley, 919 F.3d 1135 (9th Cir. 2019). The Court unanimously held that an officer who made an arrest in Indian Country acted “outside of his jurisdiction as a tribal officer when he detained . . . Cooley, a non-Indian, and searched his vehicle without first making any attempt to determine whether Cooley was in fact an Indian.” Id. at 1141. In June of 2019, the government sought rehearing en banc.  

Issue(s): Should the Ninth Circuit rehear this case en banc?

Held: No. United States. Cooley, 2020 WL 399390 (9th Cir. Jan. 2020) (Ord.), at *1.

Of Note: Cooley is a defense win, and welcome Fourth Amendment (ish) protection. With all respect, however, it isn’t the case of the century. It certainly is not a decision with broad application: it is primarily an opinion of interest to Ninth Defenders with non-Indian clients who are searched in Indian Country by tribal officers who are not cross-designated by federal magistrates. The Cooley e.b. order is notable not for the outcome of the case, but for the heated opinions around the order denying rehearing en banc.
  First, Judges Berzon and Hurwitz concurred in the denial of rehearing en banc. They characterize the dissent from the order denying rehearing en banc as “an outlier:” “Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing . . . is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion.” Id. at *1 (Berzon, J. concurring in the denial of rehearing en banc).
   Judge Collins, by contrast, has a different view, in his dissent from the denial of rehearing en banc: “The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. I respectfully dissent from our failure to rehear this case en banc.” Id. at *5 (Collins, J., dissenting from denial of rehearing en banc). Judge Collins characterizes the concurrence of Judges Berzon and Hurwitz as a “belated” attempt to defend a “stealth overruling” of Ninth Circuit authority. Id. at *6. The majority decision, contends Judge Collins, is “plagued” by a “critical legal error,” is “deeply flawed,” and he quips about one legal issue that “only thing that is astonishing is that the concurrence finds this astonishing.” Id. at *19 & n.10.
  Quite the fight, ‘twixt left and right.

How to Use: An interesting article summarizes the impact thus far of President Trump’s appointees on the Circuit courts. See Law360 article here
   The piece ends with good advice: “There’s a lesson there for lawyers as well: Know your audience. Trump’s appointees will only grow in numbers, and influence, as his presidency progresses. And as recent cases have demonstrated, it pays to be in tune with how they think. ‘Insofar as there is fervent debate on the academic right about a particular question that’s relevant to your case, you probably want to be aware of it because there’s a good chance these judges are going to be aware of it,’ Adler said.” Id.
  Consider Cooley and these ten new Ninth jurists – maybe some Second Amendment authority, or administrative law regs, or EPA rulings with criminal ramifications, deserve another look?
For Further Reading: All 29 Ninth Circuit judicial spots are filled –while 26 await in the Ninth’s district courts. For a tally of where appointments stand, see the Ninth Circuit overview, here

Image of Judge Collins from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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