Changing of the Guard at the Ninth Circuit

Last week, very close watchers of the Ninth Circuit may have witnessed the aftermath of a battle between two extremes of the court’s political spectrum and perhaps a changing of the guard.

Last October, Judge Reinhardt wrote an opinion joined by Judge Paez that reversed the conviction of an Arizona man arrested for illegal possession of a firearm following a traffic violation.  (USA v. Mendez, No. 05-10205.)  The majority reasoned that police officers conducting the traffic stop unreasonably strayed from the initial purpose of the stop when they began asking the defendant questions about his gang affiliation—questions that eventually resulted in discovery of the firearm. “[The defendant’s] Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceed the scope of the traffic stop,” Judge Reinhardt explained.

Judge Tallman issued a 15-page dissent. “Here we go again,” he began.  Judge Tallman chastised Judges Reinhardt and Paez for ignoring arresting officers' legitimate interest in protecting their own safety during a stop.

Fast-forward to last Friday, when a new unanimous opinion authored by Judge Reinhardt was unexpectedly issued in the same case, vacating the original panel opinion, and affirming the conviction below.  This time, Judge Reinhardt says the defendant “understandably” relied on Ninth Circuit law that arresting officers may only ask detained suspects questions “reasonably related in scope” to the original justification for the police intervention, i.e. the very Ninth Circuit precedent the panel majority relied on last October.  But Judge Reinhardt then held that this precedent was overruled two years ago by the Supreme Court in Muehler v. Mena, 544 U.S. 93 (2005).  Under Muehler, Judge Reinhardt explained, “mere police questioning” does not constitute a seizure for Fourth Amendment purposes and therefore no reasonable suspicion is required for any police question that does not prolong an otherwise legitimate stop.

Judge Reinhardt offers no explanation for his change of heart.  But the writing on the wall is obvious:  His original opinion was about to be recalled by an ever more conservative majority of his colleagues and reheard en banc, only to be rewritten by someone of the likes of Judge Tallman.  Rather than stick to his guns and risk an en banc vote, or even giving Judge Tallman the satisfaction of rewriting the three-judge panel opinion, Judge Reinhardt exercised his seniority and did it himself.  Perhaps, in his mind, he could then limit the damage to the Ninth Circuit’s Fourth Amendment precedent that he helped craft in the first place.