Lang Van, Inc. v. VNG Corp. (9th Cir. - July 21, 2022)

One of the things you have to deal with sometimes when you're on a Ninth Circuit panel is an opinion written by a different judge that reaches what you believe is the right result but in a manner that's quite a bit different than how you'd go about things were your chambers to have written the opinion. Sometimes, if the differences are substantive, you write a concurrence, and explain your different approach.

But on occasion, the differences aren't substantive. It's simply that the opinion written by the other judge is written in a way that seems . . . clunky. It doesn't really flow. It's not written in the manner that you're used to seeing. It just seems . . . off. (You recognize that others might well use harsher language to describe the opinion, but your reaction is simply that it's not an opinion the type of which you're used to seeing.)

So what do you do?

You could try to totally rewrite the opinion, of course. But that's neither your job nor likely to result in a great reaction from your colleague, who (presumably) thinks that the opinion he's drafted is totally fine. You could write a separate concurrence, but that seems a ton of work, particularly when you don't have a substantive doctrinal problem with how the opinion comes out. You could try to lightly tinker with the thing, but you might well accurately perceive that that won't nearly solve the problem. You could write a one-sentence concurrence that concurs in the result, but that seems overly harsh.

Or you could simply join the thing. It's his opinion. Under his name. It is what it is. Just leave it be.

These thoughts came to mind when reading this morning's opinion. The opinion is written by Judge Bataillon. He's a senior judge sitting by designation from the District of Nebraska. It's about personal jurisdiction, and by background, Judge Bataillon is much more of a criminal-type guy. The other two judges on the panel are Judges Bybee and Bennett.

To me, Judge Bataillon's opinion just reads . . . differently. I see a similar type of style and analytical process on occasion in first-semester civil procedure midterm exam answers when presented with very similar personal jurisdiction issues. It's not that the analysis is necessarily substantively wrong. It's just that there's definitely room for improvement with respect to both style and substance.

As a professor, no problem. You give the answer the grade it deserves and write comments (or talk with the student) to help make things better. As a judge, by contrast, it's a bit tougher. You've only got the choices described above. Plus, it's a visiting judge, so it's not someone you're likely ever going to work with again. So you do whatever you do and move on.

Others might have a different reaction to this particular opinion. But the dynamic definitely exists, and I'm confident that most every judge who's served for any length on the Ninth Circuit has experienced it in some form or another.

No biggie. Just another part of the job.

But an aspect of which I was definitely reminded earlier today.

U.S. v. Dominguez-Caicedo (9th Cir. - July 18, 2022)

I know that the law in this area is very pro-prosecution. But it still always strikes me as unusual when, as here, we're prosecuting drug mules (and sentence them to 20 years in prison) who possess cocaine on tiny little "panga" boats floating off the coast of . . . the Galapogos Islands.

Yeah, yeah, yeah, I know: the extraterritoriality doctrine in this area is super broad. But still. We're talking about islands that are three thousand miles from San Diego. Talk about the "long reach of the law," eh?

But, again, I know the relevant precedents here. That's just fine with the Supreme Court. So much so that it's not even challenged here.

What I hadn't fully realized until today, however, is that after you seize these people so far away, you've got to eventually get them back to the United States. What I had always assumed was that they put 'em on a plane (or helicopter, or whatever) and sent 'em here expeditiously.

Apparently not.

Instead, it's a long and arduous process. Not for the actual workers on the ships, who get their usual meals and bunks and the like. The experience for the detainees, by contrast, is apparently fairly dire:

"Three officers from the Coast Guard then boarded the panga. Dominguez-Caicedo told the officers who boarded the panga that they had been out fishing. . . .  The Coast Guard then detained the three defendants and transferred them to the Stratton. Several days later, on January 2, 2018, they were transferred to the Northland, another Coast Guard vessel, where they were detained until January 3. . . .

On board the Stratton, according to Officer Welzant of the Coast Guard, the standard protocol dictates that [] detainee[s] . . . . are not told where they are headed, they do not get an opportunity to contact their families, and they do not know how long they will be on board. Detainees are chained to a cable that runs the length of the deck inside the helicopter hangar (emptied of helicopters). Each detainee is chained to the cable using an eighteen-inch ankle shackle. The detainees remain chained at all times of the day and night, except for trips to the bathroom and approximately one hour per day of exercise time, during which the detainees are permitted to walk freely on the deck. . . . Welzant testified that detainees are escorted to use the restroom upon request, unless the crew is launching a helicopter or a small boat, which would take approximately ten minutes. However, the Stratton’s detainee logbook showed that the three defendants were rarely taken to the restroom between 6:30 p.m. and 7:00 a.m. the next morning. When the three defendants in this case were detained, there were thirty-seven total detainees on board the Stratton.

Welzant testified that Defendants were provided with mats approximately half an inch thick on which to sleep. The Coast Guard confiscated the clothes that the defendants were wearing and gave them disposable Tyvek painters’ coveralls to wear instead. These coveralls often ripped and exposed detainees. Each person also routinely receives a blanket. Detainees are fed three meals per day, primarily consisting of rice and beans, supplemented with fruit approximately every other day. . . .

On January 3, 2018, the defendants were transferred to another Coast Guard cutter, the Mohawk. . . . On the Mohawk, the detainees were kept on the top deck, exposed to the elements. According to Coast Guard officer Kristopher Meyer, the crew erects a tent on that deck while detainees are on-board to provide some shelter from the elements. The Mohawk crew does not provide any sleeping mats, though they do give each detainee a blanket and a towel.

While the defendants were on the Mohawk, there were numerous rain squalls, which caused the deck to become wet. When it rained during the night, the detainees would either have to stand up or try to sleep while laying on the wet deck. On the Mohawk, detainees were served rice and beans for every meal. The defendants testified that the rice and beans were very undercooked, and that these meals resulted in them suffering gastrointestinal distress. The Mohawk’s detainee log shows that Gaspar Chichande refused five meals in a row, and that Cortez-Quinonez and DominguezCaicedo refused three meals in a row. Cortez-Quinonez testified that he was denied medical care on board the Mohawk, despite complaining of pain. . . .

On January 16, 2018, the defendants were transferred from the Stratton to their final cutter, the Active. The conditions of confinement on the Active were similar to those on the Stratton, except that the area where the defendants were shackled was protected from the elements only by a canvas tarp, and the sleeping mats provided were an inch-and-a-half thick. In addition, the temperature dropped as low as 50 degrees during the time the defendants were onboard the Active."

These are the conditions that prevailed for the nearly full month that it took to move these detainees by slow boat to the United States. As a reminder, all of these individuals were presumed innocent at this point.

The Ninth Circuit concludes that this is just fine. Sure, it's no fun, but oh well. No relief.

(Why can't we treat these people any better, you might ask? "One officer testified that feeding rice and beans [to the detainees] was the only affordable way for the Coast Guard to accomplish its mission. Another testified that the excessive restraint of defendants resulted from too few watchmen and too many detainees. Coast Guard testified that it couldn’t get detainees to shore because its helicopters were old and didn’t have long range. They claimed they couldn’t wait for diplomatic clearance to get people off the cutters because it would upset the ability to patrol the ocean.")

Obviously, life is a series of tradeoffs. After reading this opinion, I'm more fully aware of the various consequences that are engendered by the manner in which we conduct drug interdiction efforts on the high seas thousands of miles away from the United States.

And knowledge is almost always a good thing.

M&L Financial v. Sotheby's (Cal. Ct. App. - July 14, 2022)

Justice Wiley accepts (as he must) the plaintiff's version of the facts on the Court of Appeal's review of the demurrer. But reading those facts -- which involve the "disappearance" from Sotheby's of $4 million worth of diamonds -- you gotta wonder what the true facts are. Because plaintiff's version seems a bit . . . iffy.

There's an alleged oral explanation of who "really" owns the diamonds at issue that allegedly "enlightens" what's actually written on the piece of paper (i.e., contract) with Sotheby's. The Court of Appeal holds that this alleged oral explanation means that the case can go forward, since the contract is ambiguous.

Okay. I see the argument.

But there are still two owners listed on the document, Sotheby's (allegedly) released the diamonds to one of the two listed owners, and Section 1828 of the Civil Code says you're allowed to do that without any liability attaching. So unless there really was an oral modification that "explains" the "true" ownership, Sotheby's is off the hook.

But that's for summary judgment, or (more likely) trial.

Then we get to figure out the details of what really happened.

In re Ernesto J. (Cal. Ct. App. - July 12, 2022)

My sentence-by-sentence reaction to the underlying facts of this opinion:

"After several gang-related shootings in and around Union City, officers from various jurisdictions formed a plan to arrest suspects they believed were using a stolen car."

Great. Let's stop those shootings.

"The night of June 18, 2018, officers located the car and followed it in unmarked cars as it traveled throughout the area."

Sounds good. Like what you see in the movies.

"The car began circling a Union City neighborhood associated with the suspects’ rival gang, and the officers decided to execute a “Vehicle Containment Technique,” in which one police vehicle “stops in front of the suspect vehicle and reverses into the suspect vehicle’s front bumper” while a second police vehicle “simultaneously closes in on the suspect vehicle from behind until the bumpers are locked and the suspect vehicle is securely contained between both officer vehicles.”"

Seems like that's a great plan, and would work well.

"Two Fremont police officers initiated the technique when the suspects’ car was stopped at a stop sign."

Seems like the perfect location. What could go wrong?

"Occupants of the suspects’ car immediately started shooting at the officers."

Oh, yeah. That.

In retrospect, I guess it's not surprising that gang members suspected of various shootings might react negatively to being deliberately boxed in by unknown occupants of other vehicles.

People v. Gerson (Cal. Ct. App. - July 8, 2022)

This seems to me to be a good test case for whether or not you believe in retribution as a justification for criminal punishment.

Hayden Gerson is seemingly an ordinary fellow, with no apparent criminal history, but in 2016 becomes fascinated with -- and starts heavily using -- DMT and psilocybin ("mushrooms"). His ex-business partner said that he "noticed changes in Gerson after Gerson started using drugs, including 'constantly' talking about various conspiracy theories, claiming he was God and that he had special powers," and had "witnessed Gerson 'high' from marijuana hundreds of times but described Gerson on other drugs as 'something totally, totally different.'” 

Gerson's ex-girlfriend, Alisha, said basically the same thing. "During the summer and fall, Gerson began studying Hinduism, started chanting and meditating, used different psychedelic drugs, and started inhaling nitrous oxide. In November, Gerson called Alisha and told her “crazy stuff” such as bringing her deceased sister back. Alisha suspected that Gerson’s drug use caused him to become delusional and not in touch with reality. Gerson later told Alisha that he had been using drugs when he made that telephone call. During this time, Gerson’s social media postings referred to his use of DMT as “life changing” and that mushrooms changed his perspective about death and “now I don’t fear death.”"

All this comes to a head on December 12, when Gerson calls Alisha to his house. When she arrives, "she knew Gerson was intoxicated based on his large eyes, rapid movements, and the tone of his voice. She had never seen Gerson this intoxicated before. Gerson told Alisha that “he was eating mushrooms for breakfast, lunch, and dinner.” Gerson admitted at trial that he was under the influence of psilocybin and nitrous oxide at the time and had also used cannabis that day. Alisha surreptitiously recorded Gerson with her cell phone. Gerson made delusional statements such as causing it to snow in Hawaii and having control because he was Lord Shiva. Gerson then inhaled about 14 canisters of nitrous oxide in front of Alisha. Alisha called the police and told them she had a “5150” with her ex-boyfriend and she needed someone to come over immediately."

The police eventually arrive, and as you might imagine, things do not go well. "San Diego Police Officers John White and Melanie Bognuda arrived at Gerson’s home where Alisha informed Officer Bognuda that Gerson was on drugs and thought he was Lord Shiva. After Gerson refused to comply with Officer White’s command to walk towards him, both officers tried to grab Gerson’s arms to put him in handcuffs while Gerson physically resisted. Officer White deployed his Taser when Gerson ignored his order to get on the ground. The Taser had no effect on Gerson. Gerson then punched Officer Bognuda in the face. Officer White tackled Gerson and both men fell to the ground."

Then Gerson puts White into a chokehold, then Bognuda smacks Gerson on the head (hard) with her baton, and then Gerson retreats to the house and returns with a firearm.

At this point, I gotta give a huge shout out to Officers White and Bognuda. I would 100% have expected them to kill Gerson with a fusillade of bullets. But, to their credit, that doesn't happen. Even though Gerson had previously said (during the struggle) “I’m gonna fucking kill you” and “I will fucking murder you now,” when Gerson retreated to his home, the officers hid behind a parked car, and when Gerson came outside carrying a semiautomatic handgun, they noticed that "[h]e repeatedly racked the gun’s slide," which made "[t]he officers recognize[] that Gerson’s gun was unloaded based on his continual racking of the gun." So they don't shoot, and Gerson then goes back inside his house.

Glad to have officers like that down here in San Diego. No need to unnecessarily kill a guy who's high on drugs and temporarily acting crazy -- albeit incredibly (and dangerously) crazy.

Eventually, the SWAT team arrives, and you can guess what happens then. Gerson's in the house, and the SWAT team hears a shot (Gerson says he fires a warning shot into the air), at which point the SWAT team opens fire with the aforementioned fusillade of bullets, and Gerson fires back. Nobody actually gets hit -- Gerson's sort of hiding in the corner of the room, which means neither side can really hit the other -- and then the SWAT team fires tear gas into the house. Gerson then bolts the house, police hit him with "less-than-lethal" rounds, and sic a K-9 dog on him, which chomps down hard on Gerson and holds. Gerson, no slouch, flips the dog and chokes it unconscious so it releases its grip, but the police then pile on Gerson like there's no tomorrow, and that's the end of that.

So Gerson gets charged with the inevitable flurry of crimes. He's eventually convicted of almost all of them, though on the most serious charges, he's convicted only of attempted voluntary manslaughter, a lesser included offense of attempted murder (Counts 1 and 2). In the meantime, he was released on bail (for $2 million) with the predictable plethora of conditions, including spending some time at Casa Palmera, an in-patient addiction treatment center here in San Diego. He does well there, so eventually gets released to home detention, and does well there too. At first he's only allowed to leave the house for 90 minutes for personal errands, but eventually they allow him to work full-time, which (again) goes well. He even eventually gets to spend three nights a week at his girlfriend's house. It's fairly clear that once he's off drugs, the guy's actually doing quite well, and things seem to be totally working.

But now he's convicted. So what sentence?

At this point, there's not much of an argument for incapacitation, since the guy doesn't seem to be much of a threat when he's off the sauce, and it seems like he's headed in very much the right direction, albeit with supervision. Deterrence -- either special or general -- seems a fairly weak rationale for slamming the guy as well, since people hopped up on DMT and 'shrooms are hardly thinking seriously about the consequences of their conduct nor likely to be affected by a contemporaneous thought about whether they'll be spending 5, 15, 30, or whatever years in prison as a result of their offense.

Retribution seems like the strongest argument for seriously punishing the guy. His crimes were serious. They could have resulted -- though did not -- in serious injury. You obviously can't just let the guy get off scot free. Retribution is a fairly lame rationale for extensive criminal punishment, but surely you've got to punish the guy in some way for the crimes, right? Even if we're fairly confident that he's totally unlikely to commit any similar offense in the future.

So what sentence do you give him?

The trial court gives him 33+ years in prison.

Butcher v. Knudsen (9th Cir. - July 6, 2022)

Let's see if you can figure out where the Ninth Circuit comes out in today's sole published opinion.

A state statute says that you've got to register as a political committee if the thing you do involves “a combination of two or more individuals . . . who receive[] a contribution or makes an expenditure” to “support or oppose” a candidate or a ballot issue." Two people -- one a retired state legislator, the other his son -- operate a website that "ranks" state legislators on a scale of "A" through "F" depending on how often they adhere to the particular party line in that state. These two then travel around the state and give presentations to various meetings of members of that party, during which they sometimes recommend (or oppose) particular candidates. Basically, they want people to vote for people who are "loyal" to the party line in the primaries, as opposed to people that "cross the aisle" and occasionally vote for measures that are supported by the other side. The two admit that they spend over $1000 on travel expenses during these efforts, so while the state statute exempts groups that spend a "de minimis" amount of money (defined as less than $250) on such efforts, that exception definitely doesn't apply here.

The two individuals haven't registered as a political committee, someone complains, and the two people sue, claiming that the statute is unconstitutionally vague as applied to them, so they can't be penalized (e.g., fined) for not registering as a committee.

Those are the facts. I've deliberately omitted -- as you've likely noticed -- which political party the two individuals support. But I'll stipulate they're either (1) Republicans, or (2) Democrats. (I also omitted the identity of the state, lest it give you a potential clue one way or the other.)

Three questions:

(1) How do you think the Ninth Circuit comes out? Plaintiffs want you to say: "Hey, we're just doing what everyone does -- express our opinions about candidates -- and, yeah, we spend a little money to do so, but so does everyone, so the statute's unconstitutionally vague, because how were we to know that the typical run-of-the-mill stuff we're doing violated the statute?" Whereas the state wants you to say "Hey, these are political pros, and the text of the statute is clear that when you spend over $250, you've got to register, so it's not vague at all." Which of those arguments do you think the court found most persuasive?

(2) Do you think outcome would vary depending on which political party we're talking about? We all know, of course, that it shouldn't. But do you think it nonetheless does? Do you think that Ninth Circuit judges who are Republican appointees would be more likely to find the statute unconstitutional as applied here if the two individuals were Republicans, and less likely to find it unconstitutional if the individuals were Democrats? Do you think that Democratic appointees might lean to find the statute unconstitutional if the individuals were Democrats, but not if they were Republicans? Or do you think it wouldn't matter; that law is law, and the partisan lean of the participants doesn't matter?

(3) The judges on the panel are Judges Fletcher, Ikuta and Bress. So, respectively, a Clinton, Bush and Trump appointee. How do you think they voted?

Obviously, I can't answer (1) or (2) on your behalf. But I can tell you the answer to (3). The state is Montana. The two individuals were Republicans. The two Republican appointees on the panel voted to find the statute unconstitutionally vague as applied to these two individuals. The Democratic appointee dissented and thought the statute constitutional.

Coincidence?