Federal Judiciary

Two Significant En Banc Rehearings

By Robert Loblaw

Moore v. Quarterman, 05-70038 (5^th Cir., March 14, 2008)

Fisher v. City of San Jose, 04-16095 (9^th Cir., March 14, 2008)

The circuits don?t seem to be doing anything interesting today. That?s probably just as well, since all eyes are fixed on Washington for oral argument in the Supreme Court?s groundbreaking Second Amendment case.

But this pause in circuit activity gives me a chance to report on two en banc rehearing orders issued late last week.

In July of 2006, I blogged about this Fifth Circuit decision, in which a divided panel affirmed a denial of habeas relief to a death row inmate who is likely mentally retarded. The panel?s decision was based on a tricky procedural issue involving exhaustion, but the practical effect was to clear the way for Texas to execute a retarded person in violation of the Supreme Court?s decision in Atkins v. Virginia. The panel granted rehearing a year later, but the end result was the same.  To its credit, the Fifth Circuit has agreed to revisit this result en banc.

And in January of 2007, I blogged about this Ninth Circuit decision in which a divided panel concluded that a plaintiff who had lost his § 1983 jury trial was entitled to judgment as a matter of law. From my earlier coverage:

Plaintiff Steven Fisher?s story began with two twelve-packs, the 1999 World Series, and some rifles that needed cleaning. It ended with police leading Fisher away in handcuffs after a twelve-hour standoff. A jury deadlocked on the felony charges against Fisher, and he then pleaded no contest to a misdemeanor charge of brandishing a firearm in the presence of a security officer.

Fisher proceeded to file a § 1983 law suit alleging various constitutional claims against the City of San Jose and its officers, but an unsympathetic jury rendered a defense verdict. The trial judge proved a bit more sympathetic, granting Fisher?s motion for judgment as a matter of law against the City on the warrantless arrest claim.

Judges Berzon and Thompson voted to affirm, agreeing with the district court’s remarkable conclusion that no reasonable jury could find that the plaintiff?s Fourth Amendment rights had not been violated. Judge Callahan dissented, arguing that this was certainly a jury issue, and the jury had already spoken.

The Ninth Circuit has agreed to rehear this decision en banc, also to its credit.

Full post as published by Decision of the Day on March 18, 2008 (boomark / email).