I don't know that anyone's entirely in the right on this case. The opinion in which probably ain't long for this world in any event. Which in turn is probably a good thing.
The underlying dispute surrounds whether individuals on probation or parole with a search condition can be stopped and searched without reasonable suspicion. Judges Tashima and Pregerson hold that they can't be, and on that basis they uphold the denial of qualified immunity in a Section 1983 suit by a parolee who was searched without reasonable suspicion. Judge Clifton dissents.
Judge Clifton gets a couple things right, at least in my mind. First, the majority does seem to somewhat reach out to resolve this issue, in a case in which it's arguably unnecessary to do so. Which -- given the history here -- is not really all that surprising, even if it's a bit sleazy. Judge Tashima (who authored the present opinion) was on a panel (in Crawford) in 2003 that held precisely the same thing that Judge Tashima holds here (that parolees can't be searched without reasonable suspicion), over the dissent of Judge Trott. The Ninth Circuit then took the case en banc and did something different, to which both Judges Tashima and Pregerson -- the majority here -- dissented. So you've basically got a panel that dissented in an en banc decision doing what they wanted to do in the en banc. Which doesn't sound so good. Plus, since this is a qualified immunity case, they've got to do so by saying that this right was "clearly established" at the time. So not only that their dissent was the right rule, but also that it was clear. Doesn't sound very credible, does it? It's not.
Which is why I don't think this panel opinion is long for this world. Mind you, although I agree with most of what Judge Clifton says in his concurrence, he's a bit sleazy as well. He concludes his concurrence with a paragraph that argues that future panels shouldn't follow the majority opinion because it's dicta. Which it ain't. Take the opinion en banc if you don't like it. But don't feel free to ignore it just because you don't like it and can (laughably) claim it's dicta.
So the sleaze brush tars pretty much the entire panel here. Which is why I won't cry once it gets taken en banc and the case resolved on a narrow ground. Which is what's going to happen. Just watch.
