Saturday, December 14, 2013
"Third Circuit Votes to Rehear Katzin En Banc on the Scope of the Davis Good Faith Exception [UPDATE: Second Circuit Weighs In, Too]"
Orin Kerr has this post at The Volokh Conspiracy. In part:
I hope the Third Circuit will take a clear position on the three issues addressed by the panel opinion: 1) Is Davislimited to good-faith reliance on binding appellate precedent, or does it apply more broadly in the absence of clear caselaw one way or the other, 2) How clearly does a precedent need to speak to the facts of the current case for it to be considered under the Davis rule, and 3) Is there a case-by-case culpability requirement for exclusion beyond the rule of Davis, and, if so, what is the precise nature of the culpability requirement? All of these issues are reasonably likely to be headed to the Supreme Court eventually, and it would be helpful to get clear answers from the en banc Third Circuit on all three issues.