Thursday, January 26, 2006
Gilmore v Gonzales: good guys lose. pdf.
Short version - no right to travel in United States. I found the logic unconvincing. Next step - en banc review?
Part of the opinion follows the error in Davis, a case from the 70s. In Davis, as in Gilmore, a person was given the choice between a seizure (not being able to get on the plane) or a search. There was no warrant for either the search or the seizure. Davis first makes the mistake of calling this 'consent', and then compounds the error by finding the search reasonable. If it was by consent, it's not a search and need not be reasonable. Since it's not by consent, consent annot be the basis for a finding of reasonableness. This panel of the 9th circuit is boubnd by the erroneous Davis holding of another panel of the 9th. En banc review is required to correct the error. I anticipate Gilmore will move for en banc review, it will be denied over a few dissents, then the Supreme Court will deny cert. Today's decision is further problematic because there is almost no discussion of the reasonabless of a secret order.
Short version - no right to travel in United States. I found the logic unconvincing. Next step - en banc review?
Part of the opinion follows the error in Davis, a case from the 70s. In Davis, as in Gilmore, a person was given the choice between a seizure (not being able to get on the plane) or a search. There was no warrant for either the search or the seizure. Davis first makes the mistake of calling this 'consent', and then compounds the error by finding the search reasonable. If it was by consent, it's not a search and need not be reasonable. Since it's not by consent, consent annot be the basis for a finding of reasonableness. This panel of the 9th circuit is boubnd by the erroneous Davis holding of another panel of the 9th. En banc review is required to correct the error. I anticipate Gilmore will move for en banc review, it will be denied over a few dissents, then the Supreme Court will deny cert. Today's decision is further problematic because there is almost no discussion of the reasonabless of a secret order.
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