Wednesday, February 04, 2009

U.S. v. Al Nasser (9th Cir. - Feb. 4, 2009)

Judge Kleinfeld writes an incredibly sophisticated opinion here. Better than I would have thought possible, and certainly better than I could have written. It has much to recommend it. (Plus, I liked the forthrightness of the first footnote, which reads: "Judge Ferguson dissented in our earlier decision in this case . . . . After Judge Ferguson’s death, Judge N.R. Smith was drawn to replace him. Serious questions raised by the petition for rehearing, Judge Ferguson’s dissent, and our colleagues within the court persuaded us to withdraw our earlier opinion and replace it with this amended opinion.")

But let me bottom line the opinion for you. Which has the following result.

I'm walking down the street. Two armed police officers suddenly appear six feet in front of me, draw their weapons, point them directly at my face, and scream: "Shaun Patrick Martin: This is the police! Get the f*** on your knees!!" I'm stunned, since I've done utterly nothing. A half second later, they scream: "Do it now, Martin, or we'll blow your freaking face off!" I'm convinced I'm about to be executed, and drop to my knees in the face of this overpowering government authority.

That's not a Fourth Amendment seizure, apparently. I've not been detained at all. Because, unknown to me, there was another "Shaun Patrick Martin" three feet behind me. And that's who the police were screaming at. So I was never "seized" even though I fell to my knees in the face of what any reasonable observer in my shoes would undeniably perceive to be a governmental detention.

Thought you should know.