Friday, November 26, 2010

People v. Rasmussen (Cal. Ct. App. - Nov. 9, 2010)

Happy post-Thanksgiving.

I don't know how many people actually work the day after Thanksgiving.  That's the problem with being in academia for so long.  You lose a sense of perspective.  I can see that there are exactly three cars in the USD law school parking lot today -- a lot that holds several hundred.  So if that's indicative, I'd say that Black Friday is going strong.  Ah, discretionary consumer spending.

No published opinions today either.  So let's check out one from a couple of weeks ago.  Here's a case from Humboldt County.  Tell me what you think the appropriate sentence should be.

"On August 7, 2008, Rasmussen entered a Bank of America branch in Arcata.  He was carrying a backpack and walked with crutches; his right leg had been amputated below the knee.  He spoke with teller Vanessa Carrasco and asked to withdraw money from his safety deposit box, but he did not have a key or a valid box number. Bank manager A.J. Gonzales attempted to assist Rasmussen, but could not locate any account belonging to him.  Rasmussen became agitated.  He motioned toward the vault and said he had money there, stated he and 'Oprah' owned the bank, and told Gonzales to take him back to the vault.  Gonzales refused.

Rasmussen became more agitated, frustrated and angry.  He swore at Gonzales and threatened to kill him and his staff, saying he had killed other bank managers before.  Gonzales, Carrasco, and another bank employee, Brittany Rogers, testified that Rasmussen raised his crutch as if he were going to use it to strike Gonzales and Carrasco.  Gonzales asked Rogers to call the police.  Gonzales also told Rasmussen he needed to leave the bank.

Gonzales continued to talk to Rasmussen until police officers entered the bank's east entrance.  When Rasmussen saw the police arrive, he picked up his backpack andwent out the northwest exit, walking quickly on his crutches.  The officers followed him out.

Arcata police sergeants Ben Whetstine and Bart Silvers arrived at the bank in response to a report of someone inside the bank threatening to kill people.  When the officers entered, they saw Rasmussen on the west side of the bank.  Rasmussen began walking away rapidly on his crutches when he saw Whetstine.  Whetstine told Rasmussen to stop.  When Rasmussen did not stop, Whetstine, followed by Silvers, ran after Rasmussen and followed him out of the bank. Whetstine caught up with Rasmussen at the corner of Eighth and G Streets and told him to stop.  Rasmussen turned around, apparently let go of one of his crutches, and grabbed the other crutch with both hands like a baseball bat.  He took a step toward Whetstine as if he were going to swing the crutch at him.  Whetstine believed Rasmussen was threatening him with the crutch and was capable of carrying out the threat.

Whetstine stepped back and took out his taser.  Whetstine told Rasmussen he would use the taser on Rasmussen if he did not put down the crutch.  Rasmussen dropped the crutch and sat down. When Silvers arrived, along with Officer Jorge Sanchez, Rasmussen was crouched down with his knee bent, leaning against a wall and almost sitting on the ground.  Whetstine told Rasmussen he would be detained in handcuffs until the police determined what had happened at the bank.  Silvers and Sanchez then took hold of Rasmussen's arms in an effort to put his hands behind his back to handcuff him.  Sanchez attached a handcuff to Rasmussen's right wrist.  However, Rasmussen resisted the officers‘ efforts to handcuff him; he said something like 'not behind my back,' lunged forward, and brought his arms and hands down to his waist in front of him.

Whetstine told Rasmussen he would use the taser on Rasmussen if he did not stop resisting.  Rasmussen did not stop resisting, so Whetstine removed the taser cartridge (containing the probes) from the taser and pressed the taser against one of Rasmussen‘s shoulders in a procedure known as a 'drive stun.'  Rasmussen reacted by struggling more violently.  Still in a crouch, Rasmussen kicked at Whetstine with his good leg, almost hitting Whetstine in the face with his foot.  Rasmussen also got his right arm free and, with the handcuffs still attached to that wrist, began swinging at the officers.  Silvers let go of Rasmussen's left arm out of concern he would be hit by Rasmussen‘' fist and the handcuffs.

The officers again warned Rasmussen to stop resisting, but he continued to thrash.  Whetstine put the cartridge back into his taser and deployed it at Rasmussen.  One of the probes hit Rasmussen in the torso.  Rather than incapacitating Rasmussen, this only further enraged him.  Rasmussen jumped up and, using his amputated leg and the wall of the bank for support, continued swinging and punching at the officers; he also swore and yelled at them. Sanchez then deployed his taser at Rasmussen; the probes struck Rasmussen's right hand or arm, but did not incapacitate Rasmussen.  Rasmussen said, 'Is that all you‘ve got?' Rasmussen, without his crutches and using his amputated leg, advanced toward Sanchez, moving rapidly, 'a lot faster than a walk.'  Sanchez backed quickly away from Rasmussen.  While retreating, Sanchez sprayed pepper spray at Rasmussen, which had no effect.  Some of the spray hit Silvers in the eye, and he turned and covered
his face out of concern Rasmussen was about to attack him.

Seeing that Silvers was incapacitated by the pepper spray and that Sanchez had both hands full with his deployed taser and his pepper spray, Whetstine ran up to Rasmussen, got him in a headlock, and threw him to the ground.  Rasmussen continued to struggle with Whetstine as they rolled around on the ground, and he continued yelling and cursing.  When Whetstine got on top of Rasmussen, Silvers and Sanchez grabbed  Rasmussen‘s arms and handcuffed Rasmussen‘s hands behind his back.  Rasmussen continued physically resisting until he was handcuffed.  At that point, Rasmussen and the officers were in the middle of Eighth Street, 10 to 20 feet from the bank.

All three police officers suffered minor scrapes and abrasions, and Silvers had to decontaminate his eye from the pepper spray.  Rasmussen had an abrasion above his eye, scrapes on his back, and bleeding and abrasions on his amputated leg."

What do you think?  Does three years in prison seem about right?  Which is what Rasmussen gets.

Parenthetically, the entire story doesn't make me very confident in the stopping power of tasers and/or pepper spray, at least as practically employed here.  Neither can put even a dent into a man who's on crutches and an amputated leg?  Not that impressive.

Wednesday, November 24, 2010

Lyon v. Gila River Indian Community (9th Cir. - Nov. 24, 2010)

This is as good of an opinion as I've seen from Judge Wallace in a long time.

It's crisp.  It's smart.  It's comprehensive.  And it's rendered in a very difficult case, one that's both fact-specific as well as incredibly doctrinally complicated.  It's about highways, easements, Indian tribes, and primary jurisdiction.  Difficult stuff.  None of which precludes Judge Wallace from writing a masterful opinion.  Well done.  Extremely.

This is, indeed, one of those few cases where the first three-quarters of the opinion are so persuasive and well-written that at the end -- where I started to be less confident of the correct result -- I totally found myself giving deference to the opinion.  On the theory that the author was so smart, and so clearly informed about this stuff, that the opinion was probably right even about stuff I wasn't all that sure about.  That virtually never happens for me.  It's a testament to the quality of the opinion that I found it happening here.

So an impressive piece of work.  I don't think that even Judge Canby -- who's "Mr. Indian Law" -- could have done better.


Eklund v. City of Seattle Municipal Court (9th Cir. - Nov. 24, 2010)

Twenty-five (!) single-spaced pages of facts.  Four pages of analysis.  Not exactly the way I'd write an opinion.  Particularly when sixteen of the fact pages simply type, verbatim, various letters back and forth between the parties.  Which are interesting, to be sure, and relevant.  But we can shorthand these.  Not necessary to kill lots of trees.

Which -- and maybe I'm being presumptuous here -- is perhaps why Judge Canby writes a one-sentence concurrence in which he says (in toto):  "I agree with the analysis set forth in Judge Noonan's opinion, and I concur in the judgment."  In other words, the four pages are fine, and can we please shorten the rest?

As for the result, though, I agree.  The jury got this one wrong.  You could perhaps have had a better procedure, but there's no constitutional violation here, and plaintiff definitely (in my mind) got what he deserved for fixing his own tickets.  Indeed, probably should have gotten more.

Not a good Day Before Thanksgiving for Bruce Eklund, who sees his almost half-million dollar judgment go away.  But a correct result.

Tuesday, November 23, 2010

Humane Society v. Locke (9th Cir. - Nov. 23, 2010)

For a sense of our societal values, check this one out.

The Columbia River has a number of threatened or endangered fish species, including five salmon and steelhead populations.  We want to preserve these species.  That makes sense.

Lately, the endangered fish species have taken a hit from three basic sources:

(1)  The Bonneville Dam.  It kills between 5 and 15 percent of the fish.
(2)  Commercial and recreational fishing.  That also kills between 5 and 15 percent of the fish.
(3)  Sea lions.  They've lately been eating 2 to 4 percent of the fish.

So what's the solution?  How should we save these endangered species?

Kill the sea lions, of course.

There's obviously a basic value decision at issue here.  You can decrease the number of people who can fish for fun.  Or you can kill some mammals who are eating to survive.  Society's call.

People v. Shrier (Cal. Ct. App. - Nov. 23, 2010)

Agents from the California Department of Justice intentionally eavesdrop upon privileged attorney-client communications while the attorney and client are at the DOJ.  The court below dismisses the charges against the defendant based upon this outrageous conduct.  The Court of Appeal reverses.

Justice Yegan argues that while such a dismissal "surely would have a deterrent effect upon law enforcement agents," it is "too drastic and would be 'judicial overkill.'"  The Court of Appeal holds that the exclusion of the overheard communications and any derivative evidence is instead sufficient, as such a lesser remedy would "deter over-zealous law enforcement agents as there is nothing to be gained by such unlawful activity."

This is true.  As long as the chance of being caught is exactly 100 percent.  In the real world, however, the probability of being caught is way, way less than that.  Which means that simply restoring the status quo (by excluding the evidence) only remedies the misconduct in the particular case, and does not accomplish the goal of general deterrence.  It's like saying that the proper penalty for a guy who commits burglary is simply to order him to put the stuff back.  Sure, such an order means that "there is nothing to be gained by such unlawful activity" in this particular case.  But it doesn't do what a dismissal would, which is to create a deterrent effect by making the situation worse for the perpetrator in the event they're caught.

Justice Yegan distinguishes an earlier Court of Appeal case, Morrow, in which a dismissal of criminal charges was upheld based upon similar facts by arguing (inter alia) that the misconduct in that case was worse since it was performed by a prosecutor.  Which is, again, true, but also cuts the other way as well.  With prosecutorial misconduct, there's also potential Bar remedies, which may make dismissal less necessary since alternative forms of deterrence are available.  But when the misconduct comes from the police, such external remedies are unavailable; indeed, I imagine that the offending officers here might well get "attaboys" from their colleagues for their efforts -- a far cry from the deterrent that potential Bar discipline creates.  In such situations, a dismissal would be more necessary, not less.

Admittedly, like everyone else, I wish there was an intermediate remedy.  I'd be satisfied with charging the offending DOJ agents with a misdemeanor, for example.  But the stark reality is that we all know that this is not going to happen -- indeed, in the Court of Appeal (as well as below), the Attorney General's office defended what the agents did, arguing that it was entirely permissible for law enforcement agents to secretly listen to privileged attorney-client communications uttered in hushed tones in a private conference room (in Russian, no less).

While the Court of Appeal thankfully rejects this position, it's not enough.  There's no real deterrent if the only thing that gets restored is the status quo.  Which is a reality that I think Justie Yegan's opinion needs to address more directly.  And is the best argument for the decision below.

Monday, November 22, 2010

Arnall v. Superior Court (Cal. Ct. App. - Nov. 22, 2010)

Here's why you should always include in your retainer agreement the line "The attorney's fees set forth above are not set by law, but are negotiable between attorney and client."  Because the failure to include this written statement can, by itself,  cost you millions of dollars.  Seriously.

As Los Angeles attorney Alan Liker learns, to his chagrin, this afternoon.

D.N. v. United States (9th Cir. - Nov. 22, 2010)

I don't even understand why this one is close.

Wife kills Husband.  Husband has a 401(k) account.  Wife would ordinarily get it since she's the beneficiary, but you can't benefit from killing someone.  So the 401(k) goes to Son, a minor.

Does Son have to pay tax on the money?

Of course he does.  That's the way these things work.  When you get money, you pay taxes on it.

I can barely even understand Son's claim that Wife should be taxes instead.  Wife didn't get the money.  Son did.  That Wife could have gotten the money by not killing Husband, or by potentially claiming that she didn't kill Husband (she pled guilty), is irrelevant, 'cause they didn't happen.  Which is why Son got the money, and is precisely why he's taxed.

Easy cases make good law.

Friday, November 19, 2010

Hillis v. Heineman (9th Cir. - Nov. 19, 2010)

Not too long.  Not too short.  Not overly descriptive.  Not overly normative.  Correct holding.  Concise, understandable and clear.

Just like filing a permissive counterclaim doesn't waive an otherwise-preserved objection to personal jurisdiction, ditto for venue (e.g., on the basis of a forum selection clause).  A couple of older courts have perhaps held otherwise.  But that's neither the majority, nor the correct, rule.

Wonderfully said here, Judge Gould.

U.S. v. Spangle (9th Cir. - Nov. 19, 2010)

It's not that I find anything objectionable about this opinion.  It's just pretty strange/unusual to have an appeal that's in part about whether Judge Kozinski, sitting by designation in the Central District, should have recused himself from a criminal trial against a guy accused of sending threatening communications to various criminal justice officials when the dude had lots of stuff about Judge Kozinski in his car when he was busted.  So it definitely got my attention.

Ultimately, I'm totally fine with Judge Tallman's conclusion that Judge Kozinski didn't have to recuse himself.  Judge Kozinski clearly could have done so, and perhaps (out of an abundance of caution) should have.  (To be clear:  Judge Tallman didn't say that last part; that's my personal thought, and -- perhaps -- what I would have done had it been me.)  But it's not reversible error.  Yep.

But let me address one thing that the panel doesn't even mention.  Isn't it also a little strange that the three Ninth Circuit judges here are reviewing the (somewhat) ethical propriety of one of their colleagues?  Their (technical) boss, even?  What about them potentially recusing themselves?

Yes, I know:  Judges review the actions of people they know all the time.  But to me, there's something slightly different -- perhaps even qualitatively different -- about (1) reviewing the actions of someone you've worked closely with for (in Judge Tallman's case) a full decade, in a court that contains less than 30 people; and (2) reviewing a recusal motion, which seems somewhat special:  something more akin to reviewing the ethics of a colleague rather than a mere sentencing or legal decision of theirs.

None of which is to say that the panel members here should have recused themselves.  That's a personal decision.  Nor do I have any doubt that there was any actual bias here.  I'm quite confident that any of the three would be more than willing to smack down Judge Kozinski if they thought he'd done wrong.  Some on the Ninth Circuit might even find particular joy in doing so.

But at the same time, I could have totally seen someone recusing themselves here.  Or perhaps the entire Ninth Circuit.  I might have even leaned that same way myself.  Not because we have to.  But purely as a protective measure.  Just like we don't let (I believe) district judges sitting on the Ninth Circuit by designation rule on decisions of their colleages from the same district, a similar procedure might be valuable in cases like this one.

Just a thought.

Thursday, November 18, 2010

Lewis v. Verizon Communications, Inc. (9th Cir. - Nov. 18, 2010)

The Class Action Fairness Act (CAFA) requires the Court of Appeals to decide a case within 60 days after permission to appeal has been granted.  That's pretty fast.  Doable, to be sure, but fast.

Sometimes a rush to judgment may have substantively deleterious consequences.  Other times, only relatively minor errors may be engendered.

Like the one at the top of page 10 of this opinion.  Which reads:  "To support removal, Verizon submitted an affidavit that it’s total billings for all ESBI services in California exceeded $5 million."

Oops.  Should be "its," of course.  Even though it's possessive.

Small price to pay, though, for speedy justice.

Wednesday, November 17, 2010

Christian Legal Society v. Wu (9th Cir. - Nov. 17, 2010)

Here's a per curiam opinion in a high profile case -- indeed, one on remand from the Supreme Court -- that's ruthlessly accurate and correct. 

Plaintiffs sued Hastings Law School arguing that its refusal to fund the Christian Legal Society violated the First Amendment.  The Ninth Circuit and Supreme Court rejected that argument. 

CLS also made an alternative argument in the Supreme Court that Hastings had applied its policies in an unconstitutional manner (the "pretext" argument).  The Supreme Court noted that none of the lower courts had expressed an opinion on this argument, so remanded the case for consideration of this argument "if, and to the extent, it is preserved."

The Ninth Circuit holds today that this argument wasn't preserved -- indeed, wasn't even made at all in the Ninth Circuit.  And is totally, completely, a thousand percent right.  Plaintiffs have extremely good advocates representing them.  They made a deliberate choice to raise only particular arguments.  They lost.  Their later claim that they raised additional arguments is simply untrue.  The Ninth Circuit gets this one exactly right.  It is a such a crush in this regard that plaintiff's counsel might even be a little embarrassed that they feel forced to argue otherwise.  Unless, of course, they've convinced themselves of the truth of their (totally erroneous) claims to the contrary.  Which, as we all know, happens all too often.

By the way, it's a per curiam -- and hence unsigned -- opinion, but it might as well be signed.  I'll eat my shorts if Judge Kozsinki isn't the author of this one.  Seriously.

Tuesday, November 16, 2010

U.S. v. Anderson (9th Cir. - Nov. 16, 2010)

You know it's an easy case when the Ninth Circuit only needs five paragraphs -- and no oral argument -- to reverse the district court.

Some opinions ain't that tough to write.

Martinez v. Regents of Univ. of Cal. (Cal. Supreme Ct. - Nov. 15, 2010)

Did you ever think that the California Supreme Court could decide an illegal immigration case unanimously?  Apparently it can.

The question is whether California's provision of resident tuition to illegal aliens is preempted by federal law; particularly, 8 U.S.C. sect. 1623, which was designed to prohibit such discounts.  The California Supreme Court unanimously holds that, no, the provision at issue isn't preempted, since it doesn't give in-state tuition to illegal aliens "on the basis of" their residency, but rather grants this discount on "other" grounds -- namely, the fact that they've spent three years in a California high school, etc.

It's a fascinating opinion, and at 25 double-spaced pages, a fairly easy read.  So I encourage everyone to peruse it.  Among other things, it explains -- fairly persuasively -- how a state can circumvent a clear federal mandate, at least when that mandate is expressed in somewhat imprecise words.  As is perhaps the inherent nature of language.

Two parenthetical points before I discuss doctrine.  First, Justice Chin's opinion carefully uses the term "unlawful alien" (rather than "illegal alien" or "undocumented person") and expressly explains why, arguing that this is a neutral "middle ground" between the two terms.  Personally, I'm not sure that "unlawful alien" is much different than "illegal alien" in terms of import and its alleged inherent prejudice, since "unlawful" and "illegal" are basically synonyms.  But so be it.  It's an least an effort.

Second, check out how much everyone on the California Supreme Court is willing to sign on to Justice Chin's relentless critique of legislative history.  Justice Chin's arguments here come straight out of the mouth of Justice Scalia, and are the subject of much dissention in the U.S. Supreme Court, and yet here, everyone is willing to sign onto them.  That speaks volumes about how much Justice Scalia's critique of legislative history -- which, thirty years ago, was heavily relied upon -- has pervaded and found acceptance in the lower courts.  Pretty fascinating.  I would have expected at least a concurrence by one or two justices saying that while Justice Chin might be right in the present case, legislative history shouldn't be relegated to the dustbin of history.  But no one does.

As for the merits, well, I'll mostly leave that for others.  Justice Chin does a good job of saying that the wisdom of illegal immigration isn't for the courts, that the judiciary has a limited job, etc. etc.  And, again, his opinion is fairly persuasive.

But nonetheless let me critique it a tiny bit.

The way that California gets around the federal law is by using proxies.  The federal law says that aliens not lawfully present in the United States can't get in-state tuition on the basis of residence within a state.   So California says, fine, we won't give them reduced tuition on that basis.  Rather, we'll give everyone in-state tuition who attended high school in California for three years and graduated.  Mind you, the vast majority of those people are in fact California residents, for the simple reason that you generally attend high school in the state in which you reside.  But not everyone does.  Some students go to California boarding schools but technically reside elsewhere.  A select few students in border districts go to schools across state lines.  So while the vast majority of people who qualify under the "in-state tuition for three years in a California high school" are already residents, and hence for whom the law doesn't matter, there are some people for whom it matters a lot.  The vast majority of whom are unlawful aliens, but some others are U.S. citizens.

Hence, the California Supreme Court holds, there's no conflict with the federal statute.  We're not giving unlawful aliens in-state tuition because of their residence within the state.  Rather, we're giving them in-state tuition because of their status as high school students in the state.  So what the federal statute precludes is not what we do.  Thus no preemption, either express or implied.

This is a neat trick, and it's one that the Legislature deliberately thought about when it passed the California statute.  The goal was to enact a statute that got around the federal statute.  The California Supreme Court holds that they succeeded.  Unanimously.

But I wish that Justice Chin had explored this issue in a tiny bit more detail.

I agree with him (and the Court) on express preemption.  When a statute says that you can't give X benefit due to Y, that doesn't preclude you from giving X benefit due to Z.  Y is not Z.  Moreover, as Justice Chin carefully (and admirably) establishes, Y is not even coterminus with Z.  If the federal statute wanted to stop X from being provided based on Y or Z, it could have said so.  But it didn't.  Hence no express preemption.

But implied and/or conflict preemption is a different, and more difficult, story.  Here, the purpose of the federal statute was clearly to prevent unlawful aliens from being entitled to in-state tuition when legal citizens (albeit out-of-state ones) were not.  Classically, the way that state universities had granted such a benefit was to grant in-state tuition based upon the residence status of unlawful aliens.  So the federal statute targeted that prevailing practice by prohibiting it.

The scope of that prohibition, however, may well be broader than the mere text of the statute.  For example, suppose that a statute says that you can't give X based on Y, the permissible purpose of which was to stop A's from getting X.  A state that had previously granted X based on Y then amends its laws to give the same X based not on the now-illegal Y, but rather on Z -- with the deliberate knowledge that all (or nearly) all Z's are Y and that all or nearly all Y's are Z.  Is there really no conflict preemption in such a setting?

Assume, for example, that California grants a $500 tax subsidy to everyone in the NBA, and the federal government -- which disagreed with the wisdom of such a policy -- passes a statute that says "No state shall provide a tax subsidy to an individual based upon his status as an NBA player."  The California Legislature then amends the statute so that it provides the exact same subsidy to anyone who meets all of the following criteria:  (1) is over six foot two inches tall, (2) is required to wear shorts and a tank-top uniform to work, (3) travels to over 20 different cities every year as a part of his work, (4) makes over $500,000 a year, and (5) dribbles a basketball at least fifty times a day.  Notice that Y is not equivalent to Z in this example:  there are some people in the NBA who aren't over 6'2" (or who make less than $500,000/year), and there may also be a few non-NBA players who qualify under the new statute (perhaps sports mascots or well-paid WNBA players).  Would we really say:  "No conflict preemption" in such a setting?  When the clear purpose of the California law is to circumvent the federal law, and when the clear purpose of the federal law is to prevent the benefit payout to nearly the precise individuals who qualify for it under the amended statute?

This, I think, is the hardest part about the case.  Especially when, as here, the trial court dismissed the lawsuit at the pleading stage.  Discovery might well have revealed that while Justice Chin is entirely correct that the population ofY and Z are not totally coextensive, it's nonetheless the case that 99% (or perhaps even 99.9%) of the people who in fact receive in-state tuition under the revised statute are unlawful aliens.  Presumably, at some meaure of overlap, even Justice Chin must concede that there's conflict preemption.  What point is that, and why doesn't the statute here satisfy that quantum?

Presumably, for example, Justice Chin would find a conflict between a federal statute that says "No state shall give a former President a house based on that person's status as a former President" and a state statute that says "We hereby give everyone a house if their first name is William Jefferson, they're married to the current Secretary of State of the United States, and their last name rhymes with 'Minton'."  When Y and Z perfectly (and deliberately) overlap, surely there's conflict preemption, right?  Seems to me that the same may be true at a 99.999% level, or lower.  Doctrinally, that's the hard part of the conflict here.  And one that the majority opinion -- while unanimous -- doesn't really address.

Of course, as with every difficult question, it's surely easier to simply punt.  But I expect a little more from our best and brightest.  Particularly when addressing the tough stuff may well be relevant to the proper resolution of the particular case before the Court.  That's the price, I think, of intellectual honesty.

So there are some lingering questions here.  Even though it's a 7-0.  Which, if nothing else, again make the opinion well-worth a careful read.

Monday, November 15, 2010

People v. Russell (Cal. Supreme Ct. - Nov. 15, 2010)

While intoxicated, during a fight with his to-be-ex-wife, Tim Russell assaults his wife, rips the telephone wire out of the wall, tells his wife not to call the cops, and leaves the premises.  His wife (smartly) goes next door and calls the police, and Russell returns to the home shortly thereafter with a gun.  Finding only his children and his sister-in-law still at the house, he orders them to leave, and they do so.  The police then arrive.  At which point Russell shoots the first two officers who arrive, who never know what's coming -- they still have their pistols in their holster.

Russell has no prior criminal record.  His first penalty phase ends in a mistrial.  His second results in a death sentence.  The California Supreme Court unanimously affirms.

Tough to say that this case is any worse than your typical murder-of-police-officers case.  So you've got the traditional problem of rationally deciding which cases are truly death-deserving.

But the reality is that if you deliberately shoot a police officer, you're exceptionally likely to be sentenced to death.  De jure possible.  De facto virtually certain.

U.S. v. Todd (9th Cir. - Nov. 15, 2010)

Westlaw gets some free advertising in both the majority and concurring opinions here.  With both Judge Noonan and Judge Milan Smith using their law clerks' anticipated use of Westlaw as examples of when you can "know" that a future event will transpire.  On the theory that when you give something valuable to someone for free, they will indeed use it.  Like crack.

Epistemologically, I think there might be some more work here that could be done by both judges, since there's still a lingering question about whether you truly know that a future event will transpire based upon past events -- and the examples that both judges use only really show (in my mind, anyway) that you have a legitimate reason to believe that Future Event X will transpire.  Sure, maybe all ten of your previous clerks have used Westlaw, so when your eleventh clerk enters the room, the odds are she'll use it too.  But do you really "know" that she'll use it?  Beyond a reasonable doubt?  Some people like books.  Others like Lexis.  Others are incredibly lazy.  The quantum level of information necessary for knowledge about a future event seems a little more up for debate, I think, than one might get from reading either opinion in this case.

Two other tangential points.  First, I like that Judge Smith changes his mind after reading the government's petition for rehearing.  People should be open to new ideas.  Ditto for judges.  Whether he's right or wrong, I believe that his demonstrated flexibility is a great attribute.  So kudos.

Second, I found it interesting that Judge Noonan begins his opinion with:  "The statute focuses on those (usually men) who make money out of selling the sexual services of human beings (usually women) they control and treat as their profit-producing property."  Which is fairly moralistic -- not that unusual for Judge Noonan -- and in the context of this case, perhaps rightfully so.

But just take the word "sexual" out of that quote.  It's still totally accurate, right?  (Except maybe change "usually women" to "often women").  Except now no one finds much of a problem at all with this state of affairs.  Unless you're a total Marxist.  Indeed, this state of affairs is now affirmatively valuable.  What Judge Noonan describes is the essence of capitalism.  Something we're totally excited about.

So changing a single word dramatically changes our normative reaction.  Which says something.

Friday, November 12, 2010

Bright v. 99 Cent Only Stores (Cal. Ct. App. - Nov. 12, 2010)

I had no idea that in California, you have a right to sit on your butt, and can file a class action if your employer denies that right.  But you do.

At least if the nature of your job allows it, you're allowed to sit.  Hence the seats that cashiers often have behind them.

You learn something new every day.

Thursday, November 11, 2010

Wong v. Jing (Cal. Ct. App. - Nov. 9, 2010)

Here's a SLAPP suit involving Yelp.

It's a familiar refrain.  Commenter posts a negative review on a web site (here,, the relevant business sues the commenter and the web site for defamation and related torts, and -- at least here in California -- the commenter and the site file an anti-SLAPP motion.

Everyone agrees in this one that the first stage of the anti-SLAPP inquiry is satisfied, and it's pretty clear that the comments at issue here (which were about a dental practice and that in part involved a complaint about mercury in fillings) are matters of public interest.  So the only real question is whether the plaintiff has established a prima facie case of liability.  And here, it has -- at least for defamation, albeit not for the other (tangential) torts such as negligent infliction of emotional distress.

So even though the actual resolution of the case is somewhat fact-specific, I mention it for two reasons.  First, it's another example of SLAPP motions and online critiques.  Important stuff.

Second, there was also a line in the opinion that struck me as somewhat interesting, particularly because I've started to use Yelp a little bit myself over the past couple of years.  A line of page five of the opinion that reads:  "Wong said that she asked Yelp to delete the review because it was libelous.  Yelp advised her to buy a business account so she could manage the content of her listing."

Which made me think:  "Really?!  That's how Yelp makes its money?  By shaking down businesses and by distorting its reviews depending on who's paying them?  If so, I have no intention of using the thing, since it manifestly reduces the site's credibility."

Which bothered me enough to go ahead and research whether that was, in fact, the case.  The true answer to which, I learned, is far from clear.  There's apparently a huge controversy -- previously unknown to me -- on this precise topic.  Here, for example, is but a small piece of that dispute.  But there's so, so much more there:  I probably skimmed fifty or so different intelligent pieces on the subject (and many other not-so-intelligent pieces).

Ultimately, my tentative view -- for what it's worth -- is this.  I think it's probably true that Yelp does, in fact, try to sign up businesses by telling them that if they sign up, their reviews will be better.  But whether that's an accurate statement or not -- well, I simply have no idea, since we can't tell without looking at the algorithms  used to rate the businesses and to place (or delete) comments, which Yelp clearly has absolutely no intention of revealing.

So in the end, I'm not sure whether Yelp's business side is simply ripping off businesses -- but has a credible product for consumers -- or, alternately, is extorting businesses in a manner that leaves its site unworthy of reference.

Regardless, the dispute is pretty unseemly.  And, I concede, makes me at least slightly more hesitant to rely on Yelp reviews.  Which otherwise seem an incredibly useful piece of consumer data.

So that's my nonlegal take on this legal case.

Wednesday, November 10, 2010

People v. Cortez (Cal. Ct. App. - Nov. 10, 2010)

The first sentence of this opinion reads:

"Octavio Reyes Cortez pleaded guilty to six counts of committing lewd acts upon a child (Pen. Code, § 288, subd. (a)), but appeals from the portion of his sentence which imposes a $30 'court facilities' fee on each of his six convictions."

Dude.  You've been convicted of six counts of child molestation.  The $180 fee -- which I'm sure you can't pay anyway -- is the least of your problems.

And yeah, yeah, I know.  It's an appointed appellate lawyer, and I'm sure it's better than filing a Wende brief that says "There's nothing here."  But still.  Part of me wonders whether we're really accomplishing much by spending $5000 on an appointed lawyer and a similar sum on the government side to fight over an $180 fee.

Which gets affirmed anyway.

U.S. v. Grob (9th Cir. - Nov. 10, 2010)

A girlfriend breaks up with her boyfriend, and the jilted boyfriend sends her twenty-two mean e-mail and text messages.  No big deal?

What if the messages are things like a text message with the subject heading "I'm Going to Slit Your Throat" that says:  "If you ever come back to Montana again I am going to slit your throat. I am not even kidding. It would make be fill [sic] so good to see you bleed as you gasp for air. I hope your are [sic] ready for retribution, because it is coming. You are going down bitch."  That clearly ups the ante, right?  Particularly when photos of dead and dismembered women accompany some of the messages.

To give even more color, the girlfriend broke up with him after suffering a miscarriage, and one of the e-mails was entitled "OMG Our Baby" and attached a photo of a dead infant.  Classy.

Thankfully, the girlfriend contacts the police, who arrest the boyfriend and charge him with the federal crime of cyberstalking.  The boyfriend gets released on bail, but what does he promptly do?  Gets arrested for public intoxication and carrying a concealed weapon.  That's going to land you back in jail real quick.  Thankfully.

Oh, and it doesn't help things that, after he's put back in federal custody, he's caught in possession of a homemade knife made out of a razor blade.

The district court sentences the boyfriend to a little over three years in prison.  Seems about right to me.

He appeals, claiming that his criminal history score was miscalculated, since it included a "criminal mischief" charge when he was 19 for trashing an apartment to retaliate against his landlord.   That offense resulted in a fine of $130 and a restitution order of $750, but it also means that his guideline range goes up four to six months.

In the end, I think that the Ninth Circuit gets it right, and finds that this offense should probably not be included.  And since the district court sentenced the boyfriend to the low end of the range, remands for resentencing.

Nonetheless, I'm happy that Jeff Grob will still spend a fair piece of time in prison.  He doesn't sound like the most in-control person in the universe.  At all.

Tuesday, November 09, 2010

U.S. v. Schaefer (9th Cir. - Nov. 8, 2010)

You're living in Cool, California.  Which is cool on every possible level.  You're a local attorney.  Life's good, but making ends meet on the law front isn't especially easy.  Particularly after your wife gets breast cancer and you have to help out a bit.  Not a crushing amount of business in Cool.

So you start growing a little marijuana for your wife.  Now here's a business that makes sense in NoCal.  So it takes off.  You start selling a lot.

But all good things must come to an end.  For Dale Schaefer, that end is the statutory minimum sentence of five years in prison.  And watching his doctor wife get the same sentence as well.  Convictions and sentences that are then affirmed by the Ninth Circuit.

Circle of life.

Monday, November 08, 2010

In Re Hare (Cal. Ct. App. - Nov. 8, 2010)

When you're a 27-year old cokehead, murder your dealer, and get your girlfriend and 15-year old brother to help clean up the crime scene and bury the body in the desert, you're obviously in a world of trouble.  Especially after you're arrested.

Things may seem okay, though, once you skip bail and flee the state.  Particularly if you take your girlfriend with you, and then marry her under a different name.  Life is good, right?

But here's the thing.  At this point, you're basically "all-in" on keeping her happy.  Because if, three years later, she gets tired of being a fugitive, guess what?  She can turn you in, at which point she'll probably get immunity and you'll get 15 to life.

Bummer, huh?

Oh, yeah.  One more thing.  Twenty-seven years later, when you've got yet another parole eligibility hearing, and the Board of Parole Hearings finally grants you parole, don't be surprised if The Terminator reverse the decision.  Which he does as a matter of course.

And even though the trial court will reverse, the Court of Appeal will reinstate the Governor's decision.

The bummers just keep coming.

People v. Nordberg (Cal. Ct. App. - Nov. 8, 2010)

It doesn't pay to get juiced after work.  As Stephanie Nordberg, a 21-year old North Hollywood woman, learns after she drives drunk, kills a man on a motorcycle, and gets a sentence of nine years in prison.

Glen Hill Farm v. California Horse Racing Board (Cal. Ct. App. - Nov. 8, 2010)

It pays to juice your horse.

Thursday, November 04, 2010

People v. Greenwood (Cal. Ct. App. - Oct. 28, 2010)

Let me make sure I get this right.

A police officer can permissibly stop any car with valid temporary tags.  So long as the computer says that the "regular" registration has expired -- and neither confirms nor denies the existence of a temporary tag (perhaps because temporary tags aren't entered into the computer when you run the plate) -- the driver of the car can't complain.  That's what you get for driving with temporary tags.

If my reading of the opinion is accurate, then this seems to me a far-reaching opinion, and I'd have liked to see the Court of Appeal describe its import more clearly.  If my reading is wrong, I'd have liked the Court of Appeal to say where my reading goes astray.

'Cause that's indeed how I read it.

Now, maybe the Court of Appeal is saying:  "Since temporary tags are usually entered into the computer database, when the database doesn't show them, an officer may permissibly stop the car."  But that's not what the Court of Appeal actually says, and even after reading the entire opinion, and exploring my own preexisting knowlegdge, I'm not at all sure that this is in fact the case.  Accordingly, the opinion seems to stand for the validity of a stop even if temporary tags aren't usually entered into the system.  And if that's indeed the case, it's definitely a pretty expansive holding.

Wednesday, November 03, 2010

Ahanchian v. Xenon Pictures (9th Cir. - Nov. 3, 2010)

The Ninth Circuit decides a case this morning that I bet most civil litigators will cite -- either in court or in correspondence -- at least once in their careers.  Even the most diligent litigators.  Or at least should cite.  Hence my reference to it herein.

It's an unusual case, and begins with Judge Wardlaw quoting a 1925 law review article to say:  "Procedure 'is a means to an end, not an end in itself—the "handmaid rather than the mistress" of justice.'"  Which uses language that's a bit outdated, but that nonetheless expresses a concept that continues to be true.  Moreover, for people interested in civil procedure such as myself, it's an intriguing introduction.

She then goes on to reverse the district court's refusal to grant a request for a one-week extension of time to file an opposition to a summary judgment motion.  You don't see that every day either.  Holding that because the non-moving party's attorney (1) had only eight days to file his opposition, three of which were over the Labor Day holiday; (2) had a pre-planned trip out of town over the holiday; and (3) was facing a somewhat large (though not unusually so) motion, the district court abused its discretion in rejecting the requested extension.

You can see how someone could easily find it useful to cite that case.  Situations like this come up all the time.

There's also additional useful stuff in the opinion as well.  For example, Judge Wardlaw appears to be pretty skeptical of the justice of the Central District's local rule, which often requires oppositions to be filed within seven days of the filing of the underlying motion, arguing that this "peculiar" rule creates an "exceptionally constrained deadline" for the filing of oppositions and departs from the more common 14-days-for-filing-an-opposition rule that exists in most of the other districts in the Ninth Circuit.  That's a pretty useful quote the next time you want an extension to oppose a motion in the Central District, eh?

Plus, see if you won't use this quote (from footnote seven) as well the next time you want an extension to go fishing with your friend -- or simply enjoy the holidays -- rather than filing an opposition:  "[Counsel's] lack of availability due to a previously planned trip is a reasonable basis for seeking an extension of time. . . . [A]ttorneys, like everyone else, have critical personal and familial obligations that are particularly acute during holidays. It is important to the health of the legal profession that attorneys strike a balance between these competing demands on their time."  I hear ya.  That's something I'm definitely going to keep in the back of my mind.  And use when it's appropriate.

Not just in filings, either.  I'm going to tell it to opposing counsel too when I initially request the extension.  In addition to at least some of this choice quote:  "We feel compelled to address defense counsel’s unrelenting opposition to Ahanchian’s counsel’s reasonable requests. Our adversarial system depends on the principle that all sides to a dispute must be given the opportunity to fully advocate their views of the issues presented in a case. . . . Here, defense counsel took knowing advantage of the constrained time to respond created by the local rules, the three-day federal holiday, and Ahanchian’s lead counsel’s prescheduled out-of-state obligation. Defense counsel steadfastly refused to stipulate to an extension of time, and when Ahanchian’s counsel sought relief from the court, defense counsel filed fierce oppositions, even accusing Ahanchian’s counsel of unethical conduct. Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system. . . . Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect. [Citation]  Where, as here, there is no indication of bad faith, prejudice, or undue delay, attorneys should not oppose reasonable requests for extensions of time brought by their adversaries."

So for both the slacker and the non-slacker, there's some good stuff in this opinion that's at least worth keeping in the back of your mind as you go through the day-to-day grind.  If only because it may well be useful the next time your back's up against the wall.  Or simply if you want to have fun over Christmas rather than pound out that 25-page opposition.

Tuesday, November 02, 2010

U.S. v. Leal-Felix (9th Cir. - Nov. 1, 2010)

As my father -- whose family was from Iowa -- used to say:  "They grow 'em big in Iowa."

Judge Goodwin writes an eight-paragraph opinion in a sentencing guidelines case.  To which Judge Bennett, sitting by designation from the District of Iowa, responds by authoring a twenty-page, single-spaced dissent.  Complete with table of contents.

Nor am I the only one to recognize this contrast.  Judge Bennett begins his dissent with the following:

"With all due respect, because whether a “citation” is an “arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2) is an issue of second impression across the breadth of the federal courts, it deserves more serious analysis than the judicial sleight of hand performed by the United States Court of Appeals for the Seventh Circuit in Morgan and adopted by this court today. Like the classic street shell game, Thimblerig, which used three thimbles or walnut shells and a pea—the so-called “short con,” because it was quick and easy to pull off—Morgan palmed the pea, so that plain meaning, a common sense and legally correct view of the word “arrest,” and fundamental fairness are no longer under the shells. Surprisingly, Morgan managed to pull off this trick with a single paragraph. I respectfully dissent from falling for the con."

I'm not sure the Seventh Circuit's opinion -- or the Ninth's -- really qualifies as a "con".  But I agree that the analysis here is relatively skimpy.  There's more than initially meets the eye.  Ditto for the shell game.

Mepco Svcs. v. Saddleback Valley USD (Cal. Ct. App. - Nov. 2, 2010)

Here's what I like about this opinion:

(1)  Its breadth.  It's comprehensive.  It takes the issues seriously.  It engages them.  I like it.  Sure, that makes the opinion long.  But it also makes clear to the parties and the public how and why the Court decided as it did.  I like that.

(2)  Its result.  The Court of Appeal holds that the trial court abused its discretion in allowing some prejudicial testimony (that the president of the company mortgaged his home to pay subcontractors), but that the error was harmless since this emotional appeal likely didn't affect the verdict.  I agree on both counts.  And both are worth saying.

(3)  Its description of certain testimony.  For whatever reason, it brought a smile to my face when I saw the opinion's discussion of how one of the witnesses -- in typical construction-person lingo -- answered the question "What did you think about quality of the construction plans?"  The response:  "They suck."  When the attorney then followed up with "What do you mean by that?", the witness then explains:  "That means I don't like them."  Sometimes witnesses on the stand talk like they talk in the real world, and I love it.