U.S. v. Steinman (9th Cir. - March 5, 2025)

I understand why Judges Milan Smith and Bumatay want to reach out and (entirely unnecessarily) decide this issue the way they want it to come out. But isn't the concurrence by Judge Wu -- sitting by designation from the Central District of California -- just clearly and unambiguously right on this one? 

Here's Judge Wu's take:

"Because we need not—and should not—break new ground today by addressing the undeveloped and potentially sweeping “cross enforcement” issue, I concur with the majority opinion except for Part II.B.1.

As a general rule, we should not decide a constitutional question unless it is necessary to do so. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (‘“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’” (quoting Burton v. United States, 196 U.S. 283, 295 (1905))); Christopher v. Harbury, 536 U.S. 403, 417 (2002) (highlighting “the obligation of the Judicial Branch to avoid deciding constitutional issues needlessly”). Several panels of this Court have previously declined to address “cross-enforcement” arguments when it was unnecessary to the disposition of the appeal. See, e.g., United States v. Malik, 963 F.3d 1014, 1015 n.1 (9th Cir. 2020) (declining to reach the question of whether a Nevada state officer had probable cause to search based upon federal marijuana laws because the officer had probable cause to search based upon violations of Nevada state law); United States v. Gray, 772 F. App’x. 565, 567 n.2 (9th Cir. 2019). So, too, should we. Because we conclude “without much difficulty” that Trooper Boyer had probable cause to seize Steinman’s BMW based upon a violation of Nevada state law, there is no reason for the majority to consider the question of whether the federal law violation provides another potential basis for probable cause.

Additionally, I cannot join Part II.B.1 because it rests on doubtful assumptions and thrusts Fourth Amendment jurisprudence into a precarious position with no clear limiting principles. This is especially true in the contexts of immigration and marijuana laws, where federal and state priorities often diverge.

Firstly, I find unconvincing the majority’s conclusion that Nevada has an interest in ensuring the federal felon-in-possession-of-ammunition statute is enforced. Unlike the federal government, Nevada could have—but has chosen not to—criminalize a felon’s possession of ammunition. Compare 18 U.S.C. § 922(g)(1), with Nev. Rev. Stat. § 202.360. The majority opinion initially references the Supremacy Clause. But the Supremacy Clause—which “invalidates state laws that ‘interfere with, or are contrary to,’ federal law,” Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 22 (1824) (Marshall, C.J.))— is not directly implicated here. Furthermore, it is implicit in the concept of federalism that federal and state governments may have different, if not fully divergent, policy and political priorities. See Printz v. United States, 521 U.S. 898, 918–19 (1997) (“Although the States surrendered many of their powers to the new Federal Government, they retained ‘a residuary and inviolable sovereignty.’” (citing The Federalist No. 39, at 245 (J. Madison))). That Nevada has not promulgated its disapproval of the federal felon-in-possession-of-ammunition statute does not establish a converse interest in enforcing it, as the majority assumes. 

Secondly, despite the majority’s apparent attempt to cabin its ruling to the present case, there is simply nothing preventing today’s new rule from being applied in other cases where the “cross-enforcement” issue is more fraught and more common. As this issue arises with some frequency in the context of immigration and marijuana laws, what if a state does not want its officers assisting in the enforcement of federal law? The majority opinion offers no explanation on how today’s rule would not naturally extend to cases where a state has gone so far as to codify its opposition to “cross-enforcement” by its police officers as to a particular federal law. Indeed, the majority opinion assumes only for the sake of argument that state law is even relevant to the “cross-enforcement” issue. . . .

The inescapable conundrum with the majority’s unrestricted endorsement of “cross-enforcement” is that Trooper Boyer—a Nevada state law enforcement officer entrusted to enforce the laws of Nevada—is determined today to have committed no Fourth Amendment violation for seizing Steinman’s automobile based on conduct that is entirely legal under Nevada law. In other words, the majority’s new rule opens the door, as one district court has prudently observed, “to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce.” United States v. Talley, 467 F.Supp.3d 832, 837 (N.D. Cal. 2020) (citing Printz, 521 U.S. at 918–19).

In the end, the government’s “cross-enforcement” argument is but one of several contentions set forth in this appeal—the full ramifications of which have not been fully developed in the record before us. Because we find “without much difficulty” that Trooper Boyer was justified in seizing Steinman’s automobile based upon a violation of state law, it is unnecessary to reach the “cross-enforcement” issue today. The majority’s decision to nevertheless break new ground does more than start a conversation on a novel constitutional law doctrine—it sweeps with it a whole host of critical Fourth Amendment issues without announcing a rule or limiting principle to be used in future cases. For these reasons, I respectfully concur in the majority opinion expect for Part II.B.1."

That just seems 100% correct to me. Every single point.

Herren v. George S. (Cal. Ct. App. - March 4, 2025)

If you're a trusts and estates attorney, I understand that there are many difficult choices to make sometimes when you're dealing with elderly and potentially incompetent clients (or potential clients). It's a tough one. You want to help them if you can. At the same time, you need to make sure that they're competent to make decisions for themselves.

Here, there's an underlying family dispute between two sisters involving their 86-year old father, who's been declared incompetent. One of the sisters is primarily taking care of him, and is the trustee of his trust, and while she's away, the other sister shows up, brings an attorney, and the attorney meets privately with the 86-year old and has him sign a retainer agreement for $100,000. The attorney then demands to get paid for her services.

There are substantial additional factual details in the Court of Appeal's opinion, but suffice it to say, both the trial court and the Court of Appeal appear to be extremely unhappy with the lawyer's conduct. The trial court finds that the lawyer committed elder abuse and enters a restraining order against her, and the Court of Appeal affirms -- in an opinion the tone of which is often quite bristling.

As I said, if you're an attorney, you want to help out a client if you can. Especially, I suspect, if he's willing to pay you six figures to do so.

But I might think twice about embarking on that path under the situation that existed here. Even if I had gotten the father's signature of the retainer agreement, it was probably unwise to insist upon being paid. One might also have wanted to simply walk away from the thing once the trustee sister asserted a claim for elder abuse and asked for a restraining order. Finally, once the trial court issued one, with a neutral person finding that you've engaged in elder abuse as an attorney, I might have thought twice -- perhaps even three or four times -- about filing an appeal that might result, as here, in a published opinion with your name on it that affirms that finding.