Entries categorized "Ninth Circuit Activism (Real and Imagined)"

House to Ninth Circuit: You're Not Activist Enough!

In Fields v. Palmdale School District (here) several parents sued a school district because they did not approve of the school's curriculum.  Yes, they sued the school under the theory that they had a constitutional right to control what and how the school taught.  The Ninth Circuit properly rejected the parents' claim that they had an unenumerated right to control a school's curriculum.

Was the Ninth Circuit praised for resisting the parents' efforts to have federal judges interject themselves into a local school matter?  Nope. 

Several of the same members of the House of Representatives that want to split the Ninth Circuit because it's too "activist," are now encouraging, in an official resolution, the full Ninth Circuit to reverse the panel's holding.  All but 5 Republicans voted in support of the resolution.  Under these Congressperson's views, parents have a constitutional right to control what subjects a school teaches.  Who's activist now?

(Lv: Bashinator.)  UPDATE: Doug Berman offers these excellent thoughts that should serve as a footnote in your next relevant federal sentencing memo.  UPDATE2: Eugene Volokh weighs in.

Ninth Circuit Reversals

[Ed's note: I just found this post in my files, so I'm publishing it, even though it might not remain timely.]

The Supreme Court reversed the Ninth Circuit twice today [12/13/04].  I'm sure that everyone will have a good chuckle.  Haha.    Now that we're finished laughing, let's see what the Court did today.

In Devenpeck v. Alford the Court held that a police officer can arrest you, even if he doesn't know you're breaking any laws.  Applying Whren (the "your lightbulb in your license plate holder is out and it just so happens that you're also a black male so I'll pull you over case"), the Court wrote that "if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed" then there is no Fourth Amendment violation if the cop arrests you.  It does not matter whether the police officer knows if you're breaking any laws.  All that matters is that, post hoc, the courts can find probable cause for the arrest.

Call me crazy, but I think that an arrest is unreasonable when the police officer does not know why he's arresting you.  I suspect that that most Americans - who themselves are required to know every law or face prison - would think that a police officer should know the law before arresting a citizen.

In Brosseau v. Haugen, the Court held that a cop may shoot you in the back even if you aren't threatening him or her.  Quoting Garner, the Court reminded us that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

A jury can't kill you unless your guilt is proved beyond a reasonable doubt.  But a police officer - whom we can't burden by requiring him to know the law, see Devenpeck, above - can kill you based on probable cause.  The Court's technical holding was that a "reasonable officer" would not have known that shooting someone in the back - instead of, say, shooting the tire out - as he's sitting in his car was excessive force. 

Granted, if the guy in Haugen was going to harm a child, I'd rather see him stopped quickly.  But I also don't sanction summary executions, which is what an on-the-street shooting is.  The Court should have required a bit more quantum of proof that the suspect was really dangerous instead of giving officers a blank check to open fire.