Friday, January 24, 2020

U.S. v. Cooley (9th Cir. - Jan. 24, 2020)

Two different perspectives on this panel opinion from last year present themselves today.

The first comes from Judge Collins (joined by Judges Bea, Bennett and Bress), dissenting from the denial of rehearing en banc:

"The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. I respectfully dissent from our failure to rehear this case en banc."

The other comes from Judge Berzon (joined by Judge Hurwitz):

"Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion."

The Ninth Circuit is increasingly fractured.  I suspect you'll see more of this sort of thing in the years ahead.