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Preview of coming attractions?

If the 4th Circuit’s current configuration leaves it in equipoise and publishing even fewer opinions than usual, it is at least going on the record with some of its disputes.

In recent days, the court has published two orders in cases in which it has denied rehearing en banc, with judges at each end of the spectrum publishing concurrences and dissents from those denials.

True, the judges don’t always fall into predictable patterns. But their airing of views on classic issues such as the degree of deference to agency decisions and the “sanctity of the home” may be a preview of coming attractions, after some of the court’s five vacant slots are filled.

In Hunsberger v. Wood, the court refused to rehear a panel’s grant of qualified immunity to a Botetourt County police officer who startled a sleeping family when he made a warrantless entry into a darkened house to investigate suspicious circumstances, and took along a “civilian” who was looking for his minor stepdaughter.

A dissent from Judge Diana Motz said that prior to the panel decision, no court had ever held that exigent circumstances authorized a police officer to enter a private home trailed by “an untrained civilian.” “It seemed settled that police officers would never let a civilian into a home,” Motz wrote.

Judge J. Harvie Wilkinson III concurred in the denial of rehearing, stressing the need to locate the missing girl and saying there is no “flat rule against the presence of civilians in a home during an officer’s search.” The vote on rehearing was five to deny, four to rehear, with Judge Steven Agee not participating.

And yesterday, the court released Gomis v. Holder, in which it split five-to-five to deny rehearing en banc of a Board of Immigration Appeals’ rejection of a 28-year-old Senegalese woman’s quest for asylum, based on her parents’ stated intention to subject her to female genital mutilation and force her to marry an older man.

A concurring opinion by Judge Paul Niemeyer emphasized that FGM is “an abhorrent practice,” but said the court should defer to the BIA decision that State Department reports indicated the practice is on the wane in Senegal.

Judge Roger Gregory, who dissented from the panel decision and from the denial of en banc rehearing, said the panel decision is “blatantly contrary to well-settled, unquestioned circuit precedent.”
By Deborah Elkins

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