We're heading into the end of an era. One that began, coincidentally enough, shortly after I was born -- and that, my friends, was a long time ago.
Yet, today, we see what may perhaps be the final straw in a process that's been routine for over a half-century now in American appellate jurisprudence. So it's a watershed moment; as a result, I think it merits both mention and reflection. It's something we've seen for a long, long time, but now, is something that we may perhaps never witness again.
I speak, of course, of the Ninth Circuit's reversal of a decision by Judge Manuel Real.
It happens today. As it has happened so, so many times since Judge Real was appointed to the bench by President Johnson. Particularly as Judge Real got older, watching the Ninth Circuit reverse his decisions became routine. Virtually a sport.
It's not that Judge Real was simply out of step with contemporary politics. He was instead reversed by appellate judges of all stripes and political persuasions.
Today's decision is perhaps emblematic. In this case, the LAPD seizes a ton of guns from someone; the owner applies to have them returned to him; written LAPD policy provides that seized guns should be returned to the owner "unless there is articulable probable cause to disbelieve a sworn declaration from the claimant/owner" that he owns them; the owner provides precisely such a sworn declaration; the LAPD then spends years allegedly "reviewing" the declaration and other proof of ownership submitted by the owner; and then, while negotiations over returning the guns are continuing, the LAPD secretly applies ex parte (without notice to the owner) for an order destroying the guns, obtains it, and melts 'em down.
The owner files a Section 1983 suit, claiming -- entirely correctly -- that the Due Process Clause doesn't allow that. Judge Real grants summary judgment to the defendants. The Ninth Circuit reverses.
We're not likely to see many more of these types of cases at this point, since Judge Real died, at the age of 93, in June of last year. So while there may perhaps still be some of his decisions working their way through the Ninth Circuit, there's probably not many.
The final words of Judge Paez's opinion, expressed in a footnote, are perhaps a fitting conclusion to the history of Judge Real's interactions with the Ninth Circuit: "In light of Judge Real’s passing, we need not address Wright’s request to reassign the case on remand."
True that.
