Mena

ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

ORDER

The panel has voted to deny the petition for rehearing and the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and the suggestion for rehearing en banc are denied.

dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying rehearing en banc.

*1016 This is a qualified immunity case, arising out of the detention of a person in a home that was searched pursuant to a search warrant. The panel held that the police violated clearly established law, as any reasonable officer would have known, when they (1) detained a woman for two or three hours in a garage apartment while a search warrant in a shooting case was being executed in her house; and (2) asked her during the detention whether she was a U.S. citizen. The panel’s first holding is contrary to Supreme Court authority. The second conflicts with a Seventh Circuit decision. Both holdings unreasonably interfere with sensible law enforcement and are unsupported by precedent. A reasonable police officer would not have known that either holding was the law, so the defendants were entitled to qualified immunity.

Iris Mena lived at her father’s home. It was a single-family dwelling turned into a multi-family dwelling by taking in tenants who put individual locks on their doors. The Simi Valley police, with the help of the SWAT team, entered Mena’s home to execute a…

dissenting from denial of rehearing en banc:

I would have reheard this case en banc.

First, I disagree with the panel’s suggestion that the Constitution is offended by police officers asking Ms. Mena a ques *1020 tion about her citizenship. I would follow Martinez Camargo v. INS, 282 F.3d 487 (7th Cir.2002), holding that a question is not a seizure. Id. at 493 . Further, even if the Fourth Amendment can be invoked by a query, here the officers had a reasonable basis upon which to inquire, for Ms. Mena was found in a den of thieves, with a gang known by the law to be comprised largely of illegal immigrants. In law, as in life, a person to a degree may be judged by the company they keep, see, e.g., Maryland v. Pringle, — U.S. -, 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), and nothing in the Fourth Amendment contravenes this common observation of humankind.

Second, the issue of excessive force may be close because of the duration of time that the officers left handcuffs on Ms. Mena. But on this issue we cannot say that a reasonable officer should not have done so. We should instead be more alert to the officers’ legitimate concerns for safety. Given the arms anticipated at the locale…