U.S. v. Perkins, 850 F.3d 1109 (9th Cir.)

The Ninth Circuit consists of a variety of judges, the majority of whom are classified as “liberals.” The meaning of the word varies contingent on the subject matter, and in reading enough of their decisions you will note the high degree of reversals of state court cases in federal habeas decisions. In most cases the conviction penalty is murder. In one case a judge dissents and explains that the failure of the death penalty is attributable to philosophic differences of Ninth Circuit judges reversing state court judges in habeas corpus decisions.

In Perkins, however, the charge is child molestation, and the split among the three judge Ninth Circuit panel illustrates the distinction of philosophy although the case is more an academic disagreement in a search warrant case. The dissenting judge particularly notes the opinion of the trial judge who sensed credibility of the officer who testified in lieu of a dry record read by an appellate court.

Canadian officials detained the defendant while he crossed the Canadian border, and his car search revealed a photograph of a young women whom Canadian officials concluded was not pornographic under Canadian law. American border officials disagreed, arrested Perkins, and obtained a search warrant for his house, The search revealed another questionable photo. A search of Perkins’ records unearthed a conviction of child molestation twenty years ago.

In an American federal trial court, Perkins moved to suppress the photographic evidence and objected to the search warrant. Perkins argued the American official misled the court for failing to include the Canadian opinion in the warrant, and failed showing the photos to the judge in applying for the warrant. The Ninth Circuit panel majority held these two errors invalidated the warrant.

American courts near the border had accepted the expertise of border officers in pornography, and the court or jury would see the photos to decide the case. The absence of including the photos of Canadian officer’s opinion is irrelevant. The dissenting judge expressed the objection more fully.

Congress originally attempted to reduce the constant interference of the Ninth Circuit in state court convictions, (AEDPA), and the U.S. Supreme Court criticized the Ninth Circuit for applying legal error to these cases when the object of federal habeas corpus is to determine state court injustice. The Ninth Circuit has never used this problem. Congress must intervene.

Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016

A well written case on the Fourth Amendment. Although the Fourth Amendment is in the Bill of Rights, the Supreme Court has held it is not a constitutional right nor a personal right. The purpose of the exclusionary rule is to protect the right by excluding evidence in criminal cases lacking probable cause to arrest or search and only to avoid extreme police misconduct.  Evidence of exclusion in a criminal case is not excluded in civil cases; U.S.C. 1983.

Note: the Supreme Court has finally realized the cost of the exclusionary rule.  The only person who is protected is the criminal who possesses contraband, stolen property, weapons or drugs. When the judge rules the officers violated the Fourth Amendment.  the only person whose rights are violated is the criminal. Exclusion of evidence causes the loss of the prosecution case.

Stanton v. Sims, 134 S.Ct. 3 (2013) Affirmed on remand: 739 F.3d 450 (9th Cir. 2014)

In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity.

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case.

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.










Wrongful expansion of the Fourth Amendment is further illustrated in Lavan v City of Los Angeles, a case similar to the Ninth Circuit decision in Stone v. Powell disallowing enforcement of a city vagrancy ordinance. In Lavan, the Ninth Circuit again invalidated an ordinance prohibiting unattended personal property located on public walks. The City, in an effort to retain a semblance of order in a “skid row “neighborhood, posted orders informing everyone in the neighborhood of the ordinance and the days and time for its enforcement.

The tonnage of the property previously removed from sidewalks had been formidable, including human waste, vermin and used syringes in conjunction with clothes and other personal property. Under the ordinance, for any personal property subject to disposal, the owner could claim the contents in a designated facility at no cost. The carefully drafted ordinance attempted to provide pedestrians, motorists, and businesses from congestion, filth, disease and injury. No one was arrested; none was searched. Yet the Ninth Circuit 2-1 majority disallowed enforcement of the ordnance on ground it was a “seizure” of property. The court also worried about the loss of privacy.

This decision is a complete departure from the language and rationale of the Fourth Amendment and serves no deterrent on police officers. The ordinance attempts to balance the interests of unfortunate people, presumably homeless, with the interests of the public in safety and prevention of disease. No one denies the desolate conditions of skid row, and we deplore the of the conditions of its inhabitants, but this social problem is not criminal case, certainly not a search or seizure in the sense of the Fourth Amendment and its rationale.

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)

Nothing parallels the decision in Fourth Amendment jurisprudence comparable to Melendres v. Arpaio, 2012 WL 4358727 (9th C.A.) Plaintiffs filed a class action and sought an injunction prohibiting officers from detaining or arresting Latinos without commission of a crime or probable cause to arrest and solely on the basis of race. In other words, every Latino could challenge his detention or arrest on grounds of his ethnicity. Because most detentions and arrests occur in cities and counties of a state, the federal court will now determine in every case of an arrested or detained Latino whether reasonable suspicion or commission of a crime or probable cause exists, or that race was the only factor.

Because of the heavy Latino population in Arizona, the case load of the district will be swamped with cases alleging a violation of the injunction, and the district court forced to determine whether every detention or arrest of a Latino was based on race. In every case the issue of detention or probable cause becomes secondary to resolution of the race issue and presumably res judicata to a state case filed in state court. This court decision will not only intrude on state sovereignty, but subject to appeal in the Ninth Circuit. The underlying state case will be stayed during the appeal. The Fourth Amendment was never intended to apply its language to this type of case. And the decision includes stopping motorists for traffic violations.

The Ninth Circuit only approved the “limited injunction” issued by the district court. It concluded the plaintiffs, who may never be detained or arrested, could experience a future arrest or detention subject to the injunction.. Using the injunctive power of a federal court to determine whether one of the plaintiffs will be detained or arrested in the future is not the basis for enjoining a future speculative injury. The facts alleged of potential injury violates the jurisdictional requirement for standing.

U.S. v. King, 687 F.3d 1189 (9th Cir. 2012)

King was on probation at the time of his arrest and had waived his Fourth Amendment rights as a condition of probation. The Supreme Court had previously ruled warrantless searches and seizures of probationers did not violate the Fourth Amendment; Knights v. U.S., 534 U.S.112 (2001).  King’s motion to suppress evidence seized at his home at the time of his arrest was denied in district court. Affirmed on appeal. U.S. v. King, 672 F.3d 1133 (9th Cir. 2012 ).

In a curious per curiam en banc opinion joined by the entire panel, the 9th Circuit vacated its decision in King and simultaneously overruled numerous of its previous opinions on the issue of searches and seizures of parolees and probationers. According to the per curiam panel in King, the Supreme Court in Samson v. California, 547 U.S. 843 (2006), decided 6 years ago, requires overruling 9th Circuit precedent on probation searches.     

Here is the rationale: “[T]hese [overruled] cases conflict with the Supreme Court’s holding [in Samson] that  ‘parolees have fewer expectations of privacy than probationers’.”  According to the per curiam panel, their previous cases drew no constitutional distinction between probationers and parolees for purposes of Fourth Amendment analysis. But now, on rehearing King en banc,  Samson translates into giving probationers more privacy than parolees.  After 6 years of purported mistakes, the 9th Circuit in warrantless probation searches will now entertain motions to suppress evidence in Fourth Amendment cases under the rubric of “reasonable suspicion,” a requirement ostensibly attributable to Samson and inapplicable to parolees.

This sophstry is unprecedented.  The Supreme Court initially reversed the 9th Circuit Samson decision which had invalidated California law mandating parolees to surrender Fourth Amendment rights as a condition of parole. The Supreme Court case has been the law for 6 years. Now, in 2012, the 9th Circuit in King translates this parsed sentence in Samson to permit challenges to searches of probationers who have also waived Fourth Amendment rules as a condition of probation.

 Who uncovered this sophistic interpretation?  And why does the entire panel support this change?  The court (2-1) in King extensively summarized the facts and concluded the information given to police did not warrant either a finding of probable cause or “reasonable suspicion” to arrest King but held that finding is irrelevant under its interpretation because King had waived his Fourth Amendment rights.  

Why did the majority of the panel in King endlessly summarize the evidence in such detail, and find no “reasonable suspicion” to arrest King when the probation condition could have resolved the case in one sentence under formerly held 9th Circuit interpretation  (the original King did not cite Samson).  In fact, the dissenting judge agreed with the result that King had waived his rights but extensively disagreed with the finding of no “reasonable suspicion.”  

The answer lies in the Knights language of the Supreme Court in reversing a 9th Circuit panel who in its decision had required searches of probationers only with a warrant or probable cause. Said the Supreme Court in Knights: “The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Ninth Circuit Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former.” The Supreme Court required only “reasonable suspicion” to arrest and search a suspect on probation who had waived his Fourth Amendment rights. 

The King decision is highly questionable. The per curiam decision appears sua sponte, unsubmitted by counsel, and, in a footnote, “suitable for decision without oral argument.” Now the case is remanded under the “new test” of privacy for probationers. Since the majority panelists found no “reasonable suspicion” for King’s arrest, they will now determine some lesser test for probationers.  Or grant a motion to dismiss. Give me Cert.  

If the 9th Circuit wants to review all its other cases wrongfully decided, start with the death penalty.  This circuit has reversed all death penalty cases except 3 since 2001. And the Supreme Court has reversed every one of those cases on grounds the 9th Circuit court misinterpreted AEDPA-just like the 9th Circuit misinterpreted King.




Maryland v. King, 133 S.Ct. 1 (2012)

A Maryland law requires law enforcement agencies to collect DNA samples upon the arrest of anyone for certain crimes, including burglary and murder.  Based on collection of a DNA sample from King, the prosecutor charged and convicted him of rape committed in 2003. King, represented by the ACLU, sought a stay of the statute on the ground it violated KIng’ s right of privacy. The Maryland Court agreed, and the State sought cert. from the Supreme Court.

Citing a reversal of the 9th Circuit as precedent for granting cert. (New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 145,(1977),  Chief Justice Roberts, writing as the Circuit Judge,  summarized  both sides of the argument.  He granted a stay of the Maryland court decision, citing relevant grounds for the Court’s jurisdiction and the likelihood of a reversal of the state court.

The 9th Circuit had previously upheld a California statute similar to the Maryland law. Unsurprisingly, the court granted a rehearing; Haskell v. Harris, 2012 WL 3038593 (C.A.9).  Based on the Supreme Court order, the potential of a 9th Circuit reversal will probably be stayed pending disposition of the Maryland case.  If not for this Order by the Chief Justice, the 9th Circuit decision would probably have been reversed by the usual judges.

Although this is allegedly a Fourth Amendment case, collecting a DNA sample is no more intrusive than taking a routine blood sample.  The uncontradicted evidence establishes the value of DNA matches and far outweighs the argument of mistaken identity.  What possible right of privacy is involved in this simple test so valuable to identifying persons who have committed crimes.


Messerschmidt v. Millender, 132 S.Ct.1288 ( 2012)

Another reversal of the 9th Circuit puts it on track for breaking all previous records.
Shelly Kelly decided to revoke her relationship with one Jerry Brown.  As she was leaving their apartment, he screamed at her, grabbed by the hair, and bit her. She escaped and ran to her car only to find Brown standing in front of the vehicle holding a shotgun. She ducked down, accelerated and escaped again, but only after Brown fired five shots at her.  She reported the assault to law enforcement.
A deputy sheriff did an exhaustive search of records; found Brown to have been convicted of violent felonies; had used firearms; was a gang member.  The deputy filled out a comprehensive affidavit and search warrant of the house where he believed Brown was hiding and requested a search warrant for the gun and other weapons; showed the warrant to his supervisor who approved; approved by a deputy DA, and a magistrate issued the warrant.   Although other occupants were inside the house, the search did reveal either Brown or the shotgun.  He was arrested two days later.
Plaintiff (esate householder) filed a 1983 motion alleging Fourth Amendment violations on grounds the warrant was too broad.  The district court agreed denied qualified immunity to the officers; reversed by the 9th Circuit panel; reversed en banc on grounds the deputy should have known the warrant was too broad in seeking firearms in general, not just the one used by Brown in his assault.
Reversed by the Supreme Court.  The officer submitted a warrant consistent with his information that Brown was a gang member and a user of firearms. Ms. Kelly told him the address where he resided. The officer’s supervisor approved the warrant, as did  a deputy DA. A magistrate issued the  warrant.

The lawsuit is frivolous to begin with.  No one was injured prior to, during, or after the search.  No damage occurred inside the property.The officers had the correct address and were authorized by a magistrate to search the apartment. The Fourth Amendment does not require officers to have a law degree.  The affidavit contained abundant information and warranted probable cause to search the apartment. And, said the Supreme Court, a magistrate issued the warrant.  Nothing to show any illegal or negligent conduct during the search.

Apparently the 9th Circuit thinks it should deny qualified immunity to the officers despite the approval of superior officers, a deputy DA and a magistrate.  The officers did nothing unreasonable from the drafting of the affidavit and warrant to the entry and search.  Fortunately the Supreme Court understood this.  

Ryburn v. Huff, 132 S.Ct. 987 (U.S.)

In a case so uncomplicated the Supreme Court issued a per curiam opinion reversing the 9th Circuit. Again.

A school superintendent called police and informed them a student had issued a death threat by firearm. Officers went to the student’s home and received no response after knocking on the door. They called on the phone and received no answer.  Moments later, a woman (the student’s mother) opened the door and the officers informed her they had received information about a threat and asked to talk to the student.  They asked her if any firearms were in the house and the woman ran inside.  Officers, unaware of her conduct, ran inside to assure their safety. No searches were conducted and no person mistreated.

As it turned out, the threat was only a rumor.  So the parents of the student sued for violation of Fourth Amendment rights.  Although the district court judge found the conduct of the officers reasonable, the 9th Circuit reversed. According to a 2-1 majority, the police conduct was unreasonable.  The dissenting judge criticised the majority for “sanitizing the facts.”

Apparently the 9th Circuit assumed the officers should just stand in the doorway and wait until the woman  either returned with a firearm or shot at them from a concealed location.  That, in  essence, is what the Supreme Court wrote.  Given all the threats and killing on school premises, the officers were concerned for the safety of the students.  Their conduct was perfectly reasonable under the circumstances.

Another case of 9th Circuit naivete. Only that court would allow this silly lawsuit to go forward.  The police responded to a complaint from a legitimate source.  Attempts to contact the inhabitants peacefully  by knocking on the door and using the telephone were unsuccessful.  A woman perfectly capable of answering the door or phone comes to the door, the officers explain their presence, ask for assurance that no firearms are on the premises, and the woman  runs inside the house without any explanation.  And this is what the Fourth Amendment prohibits? Ryburn is a perfect example of a court second guessing police responsibly during their job.

The 9th Circuit is destined to receive another record of reversals in the Supreme Court.















Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 892 (2008); City of Ontario, Cal. v. Quon, 130 S.Ct. 2619) (2009)

In a personal attack upon a dissenting judge, the Ninth Circuit panel in Quon v. Arch Wireless Operating Co., Inc. wrote this: “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. The dissent’s lofty views of how the City of Ontario Police Department (OPD) should have guided the use of its employees’ pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). That our opinion follows Supreme Court precedent and accords with our sister circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc.” “The dissent selectively recites facts to support its disagreement with the outcome of our panel’s Fourth Amendment analysis (citation omitted). Set forth below are the key factual findings that the dissent either mis characterizes or over-looks entirely.” Apparently this injudicious and tactless arrogance did not persuade the Supreme Court. The Justices granted cert.; City of Ontario, Cal. v. Quon, 2009 WL 1146443 (C.A. 9). The Supreme Court reversed, City of Ontario, 130 S.Ct. 2619 (2010). Apparently the sarcastic and insulting personal attack, including its own careful consideration of the law was wrong.  Just wrong.  

Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009)

The following is taken from the original Ninth Circuit opinion: Fisher v. City of San Jose, 475 F.3d 1049 (2007). On rehearing en banc, the court reversed; Fisher, 558 F.3d 1069 (9th Cir. 2009). As judges, we should not armchair quarterback a crisis from the safety of our chambers. Such post game analysis is disconnected from reality. . . What facts induced this Ninth Circuit judge, dissenting from a court decision written by two other judges, to write this scathing remark? Herewith an abbreviated version of the evidence in a civil case filed against a city and several of its police officers alleging violation of civil rights. A security guard responding to a complaint of excessive noise in an apartment complex contacted Steven Fisher, an intoxicated tenant in the process of cleaning a rifle, and invited him outside to talk about the source of the noise. Fisher exited his apartment carrying the rifle. During their conversation, the guard, frightened by Fishers menacing demeanor and fearing for his safety, contacted the San Jose Police Department. Police officers arrived shortly before 2:00 a.m. to investigate but Fisher, having returned inside his apartment, refused to open the door, responded incoherently to the officers, and cited the Second Amendment right to bear arms. He invited one of the officers into his apartment but threatened to shoot her-a felony-if she entered. The patrol officers called for support from an experienced team of officers. Several hours later and throughout the morning, officers observed Fisher walking around inside the apartment carrying a rifle. One officer testified at a subsequent trial that Fisher pointed his rifle at the officers and at another time apparently loaded the weapon in their sight. For a period of six hours the officers could not see whether Fisher was armed or had weapons accessible to him. Attempts to contact him by telephone were unsuccessful. Other uncontradicted testimony at trial established Fisher had eighteen rifles in his apartment. Police evacuated the entire apartment complex, extinguished the power in Fishers apartment, broke the glass door to his apartment and tossed in a throw phone to talk to him because the regular telephone line emitted a busy signal. Officers threw a flash bang device into the apartment in an attempt to disorient Fisher and subsequently hurled gas canisters through the broken glass door, all tactics unavailing. Ultimately police established contact with Fisher using the throw phone and he agreed to leave the apartment unarmed. Upon his exit, officers placed Fisher in custody but at no time requested an arrest warrant from a court. Fisher sued the City and several police officers for Constitutional violations (43 U.S.C. 1983) alleging the warrantless arrest entitled him to money damages. At the trial, the jury unanimously found in favor of the defendant City and its police officers-including a verdict rejecting Fishers claim that officers arrested him unlawfully without a warrant. Despite the jury verdict, the U.S. District Court judge invoked a federal rule* granting Fishers motion for judgment in his favor as a matter of law, and ruled the arrest conducted without a warrant violated his rights. In an exercise of judicial hubris, the court awarded Fisher one dollar in damages and ordered the police department to conduct training on the law of arrest and search. The two judge majority of the Ninth Circuit panel affirmed the trial court ruling on appeal. The Ninth Circuit panel majority ruled that officers can only enter a house to effect an arrest if they have obtained an arrest warrant from a magistrate unless precluded by exigent circumstances constituting an emergency. According to the panel majority, the truncated version of the facts recited above does not constitute an emergency dispensing with the warrant requirement. In their opinion, evidence that an incoherent and intoxicated individual in possession of multiple firearms who threatened to shoot an officer, pointed guns at other officers and avoided every attempt inducing him to exit the apartment does not constitute an emergency dispensing with the need to obtain an arrest warrant. Here is the panel majority rationale: the arrest warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. . . Rather, officers must obtain a warrant before any additional incursions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant. The dissenting judge replies: What we have here is very dangerous situation that was resolved safely for all concerned, Fisher, the public, and the police because of good police work. Nevertheless, the majority decision penalizes the police by announcing a new warrant requirement imposing liability upon them for failing to obtain a telephonic arrest warrant in the midst of a police standoff that could have turned deadly at any moment . . . Armed standoffs are fluid and dangerous situations that are stressful, tense, and require difficult decisions to resolve peacefully . . . Armed standoffs always require [complex] tactical decisions that attempt to balance the safety of all involved. Commentary: The Fisher case is not an arrest conducted by officers in a criminal case who mistakenly concluded they had probable cause to arrest, or lacked an arrest warrant. Fisher filed a civil case against the City of San Jose and its officers exposing them to liability for alleged violation of Constitutional rights. The jury verdict in favor of the City and its officers validated the propriety of the arrest, including a jury decision that police did not need an arrest warrant. The trial judge overruled the jury verdict and imposed his own version of the legal consequences of the arrest. Neither the majority nor minority panelists disagree the officers had probable cause to arrest Fisher. They disagree as to what point in time the arrest triggered the necessity for a warrant, whether at the time of the initial confrontation when Fisher refused to emerge from his apartment, or when the officers physically took him into custody. From the initial nighttime contact at 2:00 a.m. until 2:30 p.m. in the afternoon the standoff took place. The majority decision notes that for six hours during the standoff the police never saw Fisher armed, allowing ample time for officers to obtain a warrant, although he ignored repeated attempts to flush him out. The court failed to recognize that Fisher could have quickly concealed himself, ambush anyone who entered, and had the ability to stave off police with multiple firearms. Fisher caused the six hour period of time to elapse, not the officers, but according to the court majority, this period of time dissipated the emergency and permitted officers time to seek a warrant. The Fisher case stands for the proposition that when the initial emergency event is dissipated the justification for a warrantless arrest no longer exists. To avoid civil liability, the officers must seek judicial authorization for an arrest warrant, contact a judge, identify an officer to prepare papers or recite the facts telephonically to the judge in support of the affidavit, wait until the administrative process necessary to obtain the warrant concludes, review the accuracy of the warrant and affidavit, and notify relevant department personnel the arrest warrant has been issued. The panel majority decision is riven with legal discussions of the Fourth Amendment prohibiting unlawful searches and arrests potentially imposing civil penalties on police officers. But in the Fisher case, academic hairsplitting confirms the dissenting judges opinion of the panel majority decision: disconnected from reality. As the panelist minority notes, officers will now have to determine when dissipationoccurs. At their own risk. This case was originally reported in January, 2007; Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. 2007). The panel majority unilaterally withdrew the opinion, superseded it on denial of rehearing, and rewrote it; Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). The case was reheard en banc, reversed and the court reinstated the jury verdict; Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir.2009). That three judges dissented is evidence that judicial naivete is alive and well;. Federal Rule of Criminal Procedure 50 (b).