The Ninth Got One Right

When the US Supreme Court and the Ninth Circuit are discussed in the same sentence, the usual result is a rant on the liberalism of the Ninth Circuit requiring yet another reversal by the Supreme Court.  And, certainly some discussion is warranted, as the Court of Appeals for the Ninth Circuit is the most reversed circuit in absolute numbers.  (It should also be noted that the Ninth has the most cases docketed; has the largest docket in the nation; and by statistics is not reversed as much as other circuits in terms of percentages.  See


Today, the Court denied a petition for certiorari from the Ninth Circuit.  The case involved the constitutional rights of two women who were tased (shocked with a taser gun). The first was tased during a traffic stop where she would not get out of the car; the second was tased during a domestic dispute intervention gone terribly wrong.  In both cases the Ninth Circuit determined that the Fourth Amendment rights of the women were violated by the tasing.  Quoting the Supreme Court from Scott v. Harris (550 US 372), Judge Paez noted that there is no test or doctrine to assist judges in determining if the force used to execute an arrest is excessive.  According to Scott, judges “must still slosh [their] way through the factbound morass of ‘reasonableness’.”  Here the judges of the Ninth used two well-worn standards—safety of the officer and the totality of the circumstances to determine if there was a violation.  While the courts are cognizant of dangers to safety officers and the community by speeding and domestic disputes, in neither situation was the safety of the officer at risk according to the facts of the cases.  In one situation, the officers were at a traffic stop and the driver was uncooperative; the driver’s keys were not in the ignition; she had no weapon; and the officers tased her three times within minutes of each stun.  The woman was also two months from her due date and heavy with pregnancy and she has permanent burn marks from the stuns.  The second scenario was a bit more difficult.  Officers were called to a domestic dispute; two officers arrived first and were working with the couple.  It is clear that the husband was agitated, but the wife was willing to talk to the officers outside.  A third officer arrived, entered the home and was arresting the husband.  Since he was standing behind his wife, the officer moved into her and she put out an arm to keep him off her.  The officer reacted to this touch and tased her.


Clearly, political scientists would code this outcome as ‘liberal.’  The court decided in favor of the individual against the interests of the state.  The Roberts Court might be policing the Ninth Circuit closely—more closely than some other circuits, but not all liberal decisions are bound for the chopping block.

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