Today's opinion, in my opinion, gives you a fairly good insight into what's in store for the Ninth Circuit during the next decade or so.
Let's begin with a hypothetical. Which one of these individuals do you believe is more likely to have more than one handgun in his home. (The question is not which one has one handgun. Which one is likely to have multiple weapons.)
Person A: Officers see him holding a handgun outside his home, and when he sees the police, he runs inside. He has two prior convictions for possessing a loaded firearm and two prior convictions for being a felon in possession of a firearm. (He also admits to being in a gang and having methamphetamine as well as heroin in his house, but let's ignore that for now.)
Person B: Officers don't see him holding a handgun, but the victim of a domestic violence crime tells police that (pursuant to a request from the person who assaulted her) she gave the gun with which she was threatened to Person B. He has a prior conviction for domestic violence and transporting cocaine for sale.
To reiterate: Both people are probably likely to have a gun inside the home; for Person A, it's the gun the police saw him holding, whereas for Person B, it's the gun that the victim said she gave him. (In truth, we don't actually know Person B took it into his house, but let's assume we think he probably did because that's where most people generally keep retained weapons).
The relevant question is: Who's more likely to have multiple guns in their residence?
Whatcha think?
Today's opinion says that the person most likely to have multiple weapons is . . . Person B.
Why does the panel come to that conclusion? Well, because it has to in order to come out the way it wants.
Because we've already got a case about Person A. That case, from 2014, was written by Judge Watford, and joined by Judges (Willie) Fletcher and (Milan) Smith. The panel there unanimously held that the facts about Person A described above were insufficient to establish for purposes of a warrant that this person had multiple weapons. Could they search the house for the one gun? Yes. But did they have sufficient probable cause to get a warrant to search for other guns? No. Just because you have one gun doesn't mean it's likely you have others. Even if you've got repeated weapons convictions; e.g., twice for possessing a loaded firearm and twice for for being a felon in possession of a firearm. There wasn't enough probable cause for Person A.
But today's panel consists of Judges Callahan, Bumatay and a district judge sitting by designation from Florida. They want to -- and do -- hold that there was probable cause for Person B. But the panel is not allowed to overrule circuit precedent. So the way around it is to argue that Person B is more likely to have multiple weapons than Person A. So that's precisely what they insist. Thereby "distinguishing" the prior opinion written by Judge Watford. A guy that a woman says she gave a gun to pursuant to a request from a domestic violence suspect is more likely to have multiple weapons than a guy the police actually see with a gun who then runs into house and has numerous prior weapons convictions.
If that's true, then, yes, the cases are indeed distinguishable.
But my infinitely firm belief is that, in truth, today's panel (1) doesn't like the prior circuit precedent, (2) definitely wouldn't have decided the prior case that way, (3) doesn't want to follow the reasoning of the prior opinion they hate, so (4) comes up with the purportedly distinguishing characteristics they isolate. With the hope and expectation that Judge Watford and those of his ilk won't have enough votes to take the case en banc for conflicting with prior circuit precedent.
Maybe I'm wrong. Maybe people actually believe that Person B -- the "she said she gave him a gun for safekeeping" individual -- is more likely to have multiple weapons than Person A (the guy with a slew of gun convictions who the police actually see fleeing with a weapon).
Do you?
Sometimes you follow circuit precedent with which you disagree. Sometimes you concur to your own opinion and say it's a bad decision and try to take it en banc. Sometimes you actually believe that the marginal differences at issue make the cases materially distinguishable. And sometimes you just argue that differences that aren't actually material are purportedly material, simply in order to arrive at a result you prefer.
One of those things definitely happens here.
