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D..C. Circuit to Take Terry Stop Decision En Banc:
I blogged about the panel decision here; Howard has the news about the court's decision to go en banc here. It seems like a strange case to take en banc given how fact-specific it is, but I guess it adds some variety to the docket.
George Weiss (mail):
1. you and the panel majority may view the case as fact specific (despite the fact that your not sure whether you agree with the panel's decision)...but the en banc court may not view the cae as narrowly fact specific as the panel majority.

the majority seems to take the idea that the investigative procedures involved in a terry stop that are allowed include limited non-protective searches of the person...in this fact specific case. (necessary for the ID procedure)

you add that even if the panel is right about that....the jacket may already have been visible (an extremely fact specific issue)..and hence the search is unreasonable.

but the en banc court may decide that categorically-limited non protective searches based only on a reasonable suspicion (and not a reasonable suspicion for drugs or PC).is categorically prohibited..no matter how limited and even if necessary to help a show up.

agree or not with such a prospective ruling...the fact is...
it would be far from fact specific.

2. its funny that you lament the taking to en banc court of a (you say) fact specific case given that when it comes to email and electronic type 4th amendment cases you frequently lament that there arn't enough facts for the court to take the case.

so which is it? too many facts bad for appeal or not enough facts bad for appeal?
7.12.2007 10:12pm
OrinKerr:
George,

I think you misunderstand. My criticism of the Warshak three-judge panel is that the court ignored binding law and invented new law with no facts in the record when the Supreme Court said they weren't supposed to do that. I thought that was bad.

In contrast, I am not "lamenting" the decision to take Askew en banc; I have no criticism of it at all. I called the case a "strange" one to take en banc because it wasn't clear to me that the case was important to take en banc (especially because D.C. Circuit crim pro cases only regulate one office, so it's not like the stakes are that high on a national scale).

And of course it's possible that the en banc court might have agreed to take the case to make a broad pronouncement about the law. They might have seen the panel decision as opening up a slippery slope that I absolutely agree should not be opened. But a lot of panel decisions do that; in my experience, the risk of of a slippery slope down the road usually isn't enough to get a court to go en banc. Thus I found the decision surprising.

Of course, if I am mistaken about en banc standards I would very much appreciate a correction; that's my vague impression, but I haven't studied the matter closely.
7.12.2007 10:45pm
vinnie (mail):
Ok, from a layman's reading of the law and circumstances its pretty cut and dried. Terry stop and frisk for readily accessible weapons. Inside the zipped jacket(or shoe) is not readily accessible. So far no harm no fowl. When the officer unzipped his jacket he was however, over the line. The police don't get to take my clothes off without AT LEAST reasonable suspicion. If the defendant had unzipped his own jacket he would have never been caught. If the en banc court takes its time deciding and parker turns out right the city may even have to give him his gun back.
7.12.2007 10:47pm
George Weiss (mail):
oren,

it was not clear to me that you had no problem with taking the case here in Askew. thank you for the clarification.

also,
im sorry if i made the impression that in #2 that I was talking about Warshak-in fact as your comments about Warshak were made progressively clear-i began to agree with your comments in Warshak, thouh I had reservations at first...(as i believe I posted somewhere in the past)

in my post here i was actually referring to United States v. Forrester (a decision i agree with but you were on the fence for-demanding more facts despite the fact that i doubt the court would see a difference between getting email header info from a isp as opposed to from some computer tracking device on the D's computer-and furthermore- its really unlikely that the latter was the case (given the logistical realities)
7.12.2007 11:01pm
OrinKerr:
Ah, got it. In Forrester, I was just confused about what the courts were deciding; the opinion didn't give the reader enough detail about what happened to understand the opinion.
7.12.2007 11:06pm
George Weiss (mail):
out of curiosity-would you agree that really boht would be allowed-the court wouldnt care-and that some magical tracking device is unlikely
7.12.2007 11:08pm
Anderson (mail) (www):
Do courts ever take panel decisions en banc because the panel decision is wrong?

That would've been my first guess as to the en banc majority's motive, but perhaps I'm being simple-minded.
7.12.2007 11:22pm
George Weiss (mail):
anderson-

i think his point is that being wrong isnt enough here because

were talking about the dc circuit court criminal pro issue here which only has presidential effect on law enforcement in DC...so they should reserve cases for important "wrong" cases-the specific defendant has already been turned down by a trail court and a panel.

of course-the court could think the particular wrongness is so important despite that that it wants to correct it...never know
7.12.2007 11:28pm
Realist Liberal:
Anderson~
I'm sure some courts do take cases en banc because other judges simply think it is wrong but they aren't supposed to do that. Like granting cert, en banc review is supposed to be for cases that are of important precidential value.
7.12.2007 11:43pm
Anderson (mail) (www):
I would be very concerned about any system of justice where an appellate court did not have the *option* of accepting a decision for review because that decision was incorrect.

However, I note that FRAP 35 sets no such restriction.
7.13.2007 12:06am
anonVCfan:
Anderson writes: Do courts ever take panel decisions en banc because the panel decision is wrong?


Federal Rule of Appellate Procedure 35
states that en bancs are ordinarily appropriate either (1) when necessary to secure or maintain uniformity of the court's precedents or (2) to decide questions of exceptional importance.

So yes, if the decision is wrong about something especially important.

If the rest of the court thought that the majority in this case got something fundamentally wrong, they'd probably urge the panel to reconsider and grant panel rehearing...
7.13.2007 1:27am
Anderson (mail) (www):
Anon, the key word in Rule 35 is "ordinarily," for purposes of this discussion. Means "we can review whatever the hell we want." Who is going to stop them?

Whether the rest of the court would "urge the panel to reconsider" depends a lot on the personalities of the court and the panel.
7.13.2007 10:59am
Bill Sommerfeld (www):
Unlike vinnie above, I'd think that a gun inside a zipped-up jacket could very well be "readily accessible" in a few seconds to a person with both hands free.

The opinion doesn't include a photo or diagram showing where the gun pouch was or how it was oriented; all we know is that the gun was in a position where it could interfere with the movement of the zipper, and where part of the gun could be seen when the jacket was unzipped, which implies to me that it is plausible that it would be close at hand once the jacket was unzipped.
7.13.2007 11:18am
EMC (mail):
It may be a specific fact pattern, but it's not an uncommon one by any means, at least in regard to the second unzipping. And I think that upholding that search does represent a significant broadening of what a Terry patdown is supposed to be -- if an officer feels a hard object in a pocket, for instance, he can't reach into the pocket under Terry unless he has reasonable suspicion based on articulable facts to think that object is a weapon. Unzipping a jacket seems like a bigger intrusion to me than reaching into a pocket, but I've seen that fact pattern (unzipping or unbuttoning a shirt or coat) a number of times.

And in regard to the first unzipping, isn't the standard for an in-field identification something distinct from the Terry analysis?
7.13.2007 12:34pm
vinnie (mail):
He did not unzip the jacket as part of the frisk. The officer should not have unzipped the jacket. He should have asked the defendant to unzip it. He was fishing.
7.13.2007 2:54pm
Anderson (mail) (www):
Going back to the naked-in-bed case earlier this year, what if the cops unzip a woman's jacket and she turns out to be naked underneath?

Perfectly reasonable, I'm sure. Just another day in the police state.
7.13.2007 4:02pm
markm (mail):
Bill Sommerfeld: So what if the gun was readily accessible? By Orin's summary of the case in his previous post, this was not a protective frisk. The eyewitness had already left, and Askew was not the armed robber they were looking for, so the stop should have been over. However, the cops searched him some more. As a layman, I cannot see any reason for the court to allow this - aside from the tendency of judges to bend over backwards to justify anything the authorities do...
7.16.2007 4:15pm