Wednesday, July 15, 2009

U.S. v. Noster (9th Cir. - July 15, 2009)

Rarely do I quote an opinion or disssent at substantial length. But sometimes the actual words are too good to leave to a mere link.

For this reason, I give you the following dissent by Judge Shadur, who's sitting by designation from the Northern District of Illinois:

"Vigilantism—whether manifested by group action such as that of a lynch mob or by individual rogue activity—is the enemy of orderly law enforcement. It is infinitely worse when practiced by a law enforcement officer such as Detective Beene, for such officers are cloaked with authority that can too readily turn the wheels of justice into wheels of constitutional injustice.

Yet Beene, no doubt prompted by defendant Noster’s unsavory past, seized on his delinquency in payments on the 2001 GMC Sierra truck to distort that delinquency into a nonexistent “theft” of the truck. Never mind that Noster had not only made the initial down payment but had regularly made the first seven monthly payments on the vehicle before he went delinquent. Never mind that GMAC Financial Services, which had financed the transaction and was thus the creditor directly interested in getting repaid for the credit that it had extended (and having ample resources at its command), had taken no steps to label Noster a thief. Instead its efforts had been devoted exclusively to seeking an orderly repossession of the truck, just as it would with any other buyer in default on his payments. Noster was a delinquent purchaser, yes—but a thief? Decidedly not.

To be sure, the majority is correct in observing that Beene —like the officer in the Wallace case—“was not taking the bar exam” when he then performed his sleight of hand, somehow converting Noster’s assertedly “unlawful” (the majority’s word) retention of the vehicle when he went delinquent after having made the first seven payments into a purported “theft” of that vehicle. But having said that, the majority has itself had to strain in an effort to place Noster’s post-delinquencyretention of the vehicle under a “theft by false pretenses” rubric (what “false pretenses” were made by Noster, pray tell, when he bought the vehicle and thereafter proceeded to make a substantial series of the required installment payments?).

Essentially the majority seeks to transmute base metal into gold by transforming Detective Beene’s unequivocal statement that the vehicle was stolen into some notion of “criminal fraud” or the like. With all due respect, I believe that such revisionist history regrettably whitewashes Beene’s own unlawful conduct, effectively creating a kind of asserted “probable cause” when in fact Beene was totally lacking in probable cause to label the vehicle as “stolen”. . . .

[T]he majority in this case—fully aware (as I am too) that Noster is a very bad man indeed [SPM - Among other things, Noster is potentially planning terrorist acts]--has opted to ignore Beene’s obvious belief that when it comes to dealing with someone he views as among the dregs of society, the ends somehow justify illegal means. We are entitled to expect—and to get—better than that from the personnel to whom we entrust the powers of law enforcement, not of law breaking. Accordingly I respectfully dissent."

Pretty powerful. Needless to say, Judges Callahan and Ikuta do not agree. See what you think.