Ninth Circuit Grants En Banc Rehearing in Posse Comitatus / Unlawful Surveillance Case

Back in September, I wrote about the Ninth Circuit’s fascinating decision in United States v. Dreyer, which applied the exclusionary rule to suppress evidence obtained pursuant to surveillance conducted by NCIS agents in violation of the Posse Comitatus Act of 1878. With a hat tip to Howard Bashman, the Ninth Circuit today granted the U.S. government’s petition for rehearing en banc, which, among other things, wipes the earlier opinion off the books. Because the Ninth Circuit sits “en banc” in what are really super panels of 11 judges, the grant of rehearing doesn’t necessarily mean that the Court of Appeals will end up ruling for the government, even though a majority of the Court’s 29 judges voted to revisit the original panel decision, but it certainly raises the stakes (and profile) of this important case.

Stay tuned… 

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Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).