Friday, December 18, 2009

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 892 (2008); City of Ontario, Cal. v. Quon, 130 S.Ct. 2619) (2009)

In a personal attack upon a dissenting judge, the Ninth Circuit panel in Quon v. Arch Wireless Operating Co., Inc. wrote this: "No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. The dissent's lofty views of how the City of Ontario Police Department (OPD) should have guided the use of its employees' pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). That our opinion follows Supreme Court precedent and accords with our sister circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc." "The dissent selectively recites facts to support its disagreement with the outcome of our panel's Fourth Amendment analysis (citation omitted). Set forth below are the key factual findings that the dissent either mis characterizes or over-looks entirely." Apparently this injudicious and tactless arrogance did not persuade the Supreme Court. The Justices granted cert.; City of Ontario, Cal. v. Quon, 2009 WL 1146443 (C.A. 9). The Supreme Court reversed, City of Ontario, 130 S.Ct. 2619 (2010). Apparently the sarcastic and insulting personal attack, including its own careful consideration of the law was wrong.  Just wrong.  

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