I agree with every single word Judge Milan Smith utters in this opinion. Every. Single. Word.
It's the battle of the Michelles. Arrestee Michelle Cameron wins some things in the Ninth Circuit. Officer Michelle Craig wins others.
The Ninth Circuit's partial reversal of the district court's grant of qualified immunity may make my taxes go up a tiny bit. Because the case is down here in San Diego, and it means that the case will either have to be settled or will go to trial. And, in my view, the defendant's exposure here is nontrivial. Particularly because I did my state and federal tax returns yesterday, I'm keenly aware of the resulting consequence.
But it's a small price to pay. Judge Smith gets it right: A reasonable jury could well find that the search here was deliberately excessive and part of a conspiracy between Officer Craig and another San Diego Sheriff's Deputy, who had broken up with Cameron and was allegedly manufacturing his baby mama's (rough) arrest in order to humiliate her and gain advantage in a custody dispute. If true, it's despicable.
Judge Smith's right that there was probable cause. He's also right that that's not the end of the matter, and that disputed issues of material fact remain for trial.
Defendant should settle. Because the same ugly facts that colored (in part) the Ninth Circuit's reaction may well have the same effect at trial.