Husayan v. Mitchell (9th Cir. - June 30, 2025)

It's definitely torture. But you can't sue for it.

I'm always shocked whenever I read historical pieces about how certain countries simply kill, rather than take prisoner, captured enemy combatants. The Japanese during World War II. The German treatment of Russian soldiers. Russia, and perhaps Ukraine, in the modern era. It always strikes me as barbaric. Or at least "uncivilized".

But when I read in today's opinion how the United States treated Zayn Husayn, I wonder if he wouldn't have preferred just dying from his wounds, rather than being tortured and then held in CIA black sites for two decades (and counting).

Not that he's a good guy. He's not. (Though how "not good" is really unclear.) Still. If it were me, I'd likely rather have just been killed and had it over with.

Anyway, he survived both the injuries and our torture, is probably fully crazy at this point, and likely will never be released.

And definitely can't sue.

U.S. v. Keller (9th Cir. - June 27, 2025)

If you're in the 99th percentile of doctors who prescribe opioids, as a lawyer, I strongly recommend that you do not write in your diary that one of your patients is a "FUCKING PSYCHO DRUGGIE" and that they "see me as a legal drug dealer."

Because that journal might subsequently help convince a federal jury to view you the same way, resulting in two and a half years in prison.

A.B. v. County of San Diego (Cal. Ct. App. - June 26, 2025)

Three years before George Floyd, this happened, with eerily similar facts.

I would guess that today's result was influenced, if only in some small part, by Floyd's death.

Cervantes-Torres v. United States (9th Cir. - June 24, 2025)

See which Ninth Circuit judge most closely approximates your views in this one.

Hector Cervantes-Torres was brought to the United States by his parents when he was 13 and was a permanent resident of the United States. He was subsequently deported, but he came back, and at some point allegedly received from the government a sticker on his green card that extended it.

The government later arrested him and charged him with possessing a firearm when he was illegally in the United States. At trial, the Mr. Cervante-Torres admitted all the elements of this offense except for the fact that he was illegally in the United States; his entire defense was that he thought he was legal. However, the judge instructed the jury that his subjective belief was irrelevant, and the jury convicted him.

After that conviction was final, the Supreme Court held that, nope, an element of the offense was indeed that the defendant subjectively knew that he was in the country illegally. So Mr. Cervante-Torres files a writ of coram nobis to vacate his conviction.

The majority opinion is written by Judge Nelson and joined by Judge Miller, and holds that Mr. Cerevane-Torres does not get relief because he's obviously guilty notwithstanding his sole defense at trial, so there was no injustice justifying coram nobis relief since there was no reasonable change the result would have been different.

Judge Nelson then writes a separate concurrence, which no one else on the panel joins, arguing that the Supreme Court should overrule its current coram nobis doctrine, and instead adopt the approach of the dissent in the 1954 Supreme Court case (United States v. Morgan) that held otherwise.

Judge Desai dissents, arguing that when an instruction leaves out the element of the offense, that error justifies coram nobis relief under circuit precedent, and that the result at trial here might well have been different if the trial judge hadn't ruled that the defendant's sole defense wasn't actually a defense.

Which approach more closely approximates your own views? Judge Miller's view that the evidence here crystal clearly established the defendant's guilt? Judge Nelson's view that the Supreme Court should go back and adopt the views expressed in a 1954 dissent? Or Judge Desai's view that the result here might have been different and justifies coram nobis relief?

People v. Barrett (Cal. Supreme Ct. - June 23, 2025)

It's hard to find sympathy for a prisoner already serving a life sentence who's sentenced to death for killing his cellmate. Not surprisingly, the California Supreme Court unanimously affirms.

By contrast, I feel substantial sympathy towards whomever did the bulk of the work writing Justice Groban's 214-page opinion. I cannot fathom how one stays motivated over a period of months or years writing a (literal) book-length treatment of this matter.

The murder happened in 1996 -- nearly thirty years ago. The defendant was (and is) already serving a life sentence. And the outcome of the present appeal is practically meaningless; there will be lengthy rounds of state and federal habeas proceedings that will inevitably follow, and there's no way the death sentence will actually be carried out in any event.

Under such circumstances, who really would choose to spend a meaningful portion of their life -- over the 21-year period during which this automatic appeal was pending -- writing a 214-page opinion? 

Not me, that's for sure.

Regardless, here you have it.

Lawyers for Fair Reciprocal Admission v. United States (9th Cir. - June 20, 2025)

The plaintiff's attorney here has filed numerous meritless lawsuits trying to get admitted to the federal courts in California even though he's not a member of the California bar. His latest lawsuit suffers the same fate.

Judge Bennett kindly avoids mentioning in his opinion that the guy, Joseph R. Giannini, has repeatedly failed the California bar.

Maybe just study harder this time and take it yet again?

Norman v. Strateman (Cal. Ct. App. - June 20, 2025)

Justice Petrou seems absolutely correct here. Yes, there was an enforceable oral settlement agreement in front of a judicial officer, which normally can be summarily enforced. But the claims at issue included a corporate derivative claim. Those need to be judicially approved, and this one wasn't. Hence the remand.

That said, I have no doubt whatsoever that the settlement agreement will be approved on remand. So it's unclear what the appellant really obtains from the successful appeal (or why it's worth it).

I also liked how expeditiously the Court of Appeal resolved this one. It wasn't a tough one (in my view). And the process went incredibly quickly once the matter was fully briefed.

Well done.

U.S. v. Sanchez (9th Cir. - June 18, 2025)

There are some immigration cases where the petitioner is fairly sympathetic. Other cases tug less on one's heartstrings.

Here, Eliel Nunez Sanchez was brought to the United States by his parents without inspection when he was a child. So he's an undocumented alien, which typically puts him somewhat on the "sympathetic" side of the equation.

Then, when he is 20 years old, he's "convicted of possession of a controlled substance (methamphetamine) while armed and was sentenced to nine months in jail." Somewhat less sympathy there. 

Then, four years later, he's "arrested for possession of a controlled substance (methamphetamine) for sale" and deported to Mexico. Again, as a repeat offender, albeit for a drug crime, somewhat less sympathy.

Then, "between 2010 and 2019, Nunez illegally reentered the United States eight times and was deported seven times." Well, shucks. I totally understand why he'd want to remain in the United States. But there's not a ton of tugging on the heartstrings here.

Finally, "in February 2020, a grand jury in the Central District of California charged Nunez with illegally reentering the United States after having previously been subject to an order of exclusion, deportation, or removal" and sentenced to two years in prison. He appeals the conviction, but loses both below and in the Ninth Circuit.

Maybe he'll stay in Mexico at this point. Perhaps not. Time will tell.

Lemus-Escobar v. Bondi (Cal. Ct. App. - June 16, 2025)

Rene Lemus-Escobar applied for asylum in 1992 and has been in the midst of immigration proceedings for the past 33 years.

That's a long time.

Brown v. Attorney General (9th Cir. - June 12, 2025)

The middle of today's Ninth Circuit opinion contains the following passage:

"What happened goes beyond prosaic misconduct. The jurors did not merely crowd together or shuffle by interested parties. See Godoy, 861 F.3d at 967. They invited a witness and her friend onto the elevator during trial, promised not to tell anyone about it, and allowed the women to openly converse. And not just any witness—Gallon was the sole codefendant whose testimony the prosecution considered important enough to cut a deal for. Gallon was silent in the elevator, but the friend encouraged the jurors to believe Gallon and rely on the video evidence. Most jurors failed to report the incident as required by the court. Not ideal."

Nicely put. And I love the last sentence.

The Ninth Circuit nonetheless affirms the dismissal of defendant's habeas petition as harmless error.

P.S. - The author of the opinion is Judge Brown, sitting by designation from the Southern District of Texas. As the caption reveals, the defendant's last name is "Brown" as well. Which made me wonder whether there's any statistical difference in results on appeal when, as here, the authoring's judge's last name is the same as the defendant's (or when someone with that same last name is on the panel). 

Maybe someone will run the data and write a law review article about that same day. (Won't be me, though.)

De Souza Silva v. Bondi (9th Cir. - June 11, 2025)

You read about a fair number of religions when you peruse the various appellate opinions. Most of them are familiar, but on occasion, you learn something new.

Today, in this Ninth Circuit asylum opinion, I learned about a religion I had never heard about before: Candomblé.

The opinion contains some various facts about the religion, and there's an expansive Wikipedia page about it. Apparently a non-trivial number of people in Brazil are members.

Interesting stuff.

State of Alaska v. Federal Subsistence Board (9th Cir. - June 2, 2025)

During COVID-19, it was more difficult for the Kake Tribe, which is located in rural Alaska, to get sufficient food to eat. So, pursuant to federal law, it applied to the Federal Subsistence Board -- an entity that I did not heretofore knew existed -- to hunt a couple of moose and some deer to eat.

After a public hearing in June of 2020, the Board said that was fine; the Tribe sent out some hunters, who found and killed two antlered bull moose and five male Sitka black-tailed deer; and the Tribe distributed the resulting meat to 135 families.

There you have it. Seemingly straightforward.

Except, of course, for the resulting lawsuit.

Which lasts way, way longer.

Alaska then sues the federal Board, saying that the hunt shouldn't have been allowed. The Tribe intervenes. Alaska loses in the district court. Alaska appeals to the Ninth Circuit. The Ninth Circuit partially reverses and remands. The district court on remand then finds again for the Board. Alaska files another appeal to the Ninth Circuit. And, on appeal, the Ninth Circuit now finds against Alaska (again), though also finds that the district court lacked jurisdiction in part.

That's a whole lot of litigation. Involving two taxpayer-funded entities: Alaska versus the United States government.

Over two moose and five deer. Who are already dead.

I can probably think of better uses of taxpayer funds. Especially since the hunt arose from a pandemic that -- knock on wood -- isn't going to happen again anytime soon.

People v. Nixon (Cal. Ct. App. - June 5, 2025)

It just seems to me a horribly bad idea -- both practically and legally -- to post on your Facebook page "a picture of three Elk Grove Police Department officers with crosshairs superimposed over the faces of two of the officers . . . . accompanied by the words: 'Fuck both of these bitch ass cops and the Elk Grove Police Department. I hope both of you scum bags are killed in the line of duty and your family members are BRUTALLY murdered."

I would think that criminally threatening the police might, just might, get their attention.

And it's even worse when you make these threats while you're on active community supervision after being released from jail for carrying a concealed weapon in a vehicle, carrying a loaded firearm, perjury, and unlawfully possessing ammunition.

That'll get you a couple of extra years in prison.

Plus taking away all your social media accounts.

People v. Porter (Cal. Ct. App. - June 5, 2025)

Most readers have probably violated this California statute. I know that I have. (In my defense, extraordinarily rarely.)

So it's probably good to at least know what the rule is.

Section 23123.5(a) of the Vehicle Code prohibits drivers from “holding and operating” a handheld wireless telephone unless you're do so in a voice-operated and handsfree manner.

So here's the question on which courts have stridently disagreed:

Is it illegal to hold a cell phone in your left (or right) hand and look at it while driving in order to follow directions?

Nathaniel Porter was doing just -- looking at the map on the cell phone -- and got a ticket for $158. He filed an appeal with the Appellate Division, which reversed, holding that it doesn't count as "operating" the cell phone if you're just looking at it. The Court of Appeal then took up the case.

And now reverses.

The Court of Appeal holds that under the plain meaning of the term, you're "operating" a cell phone when it's powered on and you're looking at it. The statute isn't just limited to typing or clicking on the thing. The Court of Appeal backs up that holding with policy concerns, arguing -- factually correctly, I believe -- that if you're looking down at your cell phone while driving, that's distracted driving, and it's dangerous, even if you're not constantly swiping or texting on the thing.

That's the argument for the Court of Appeal's holding. Which is eminently understandable.

The best argument to the contrary, I think, comes from subsection (c) of the same statute. Which expressly allows you to use a cell phone while driving if it's mounted to the dashboard and only requires a single swipe or tap to operate.

So if you can swipe or tap while looking at a cell phone on your dashboard, why can't you do less than that -- merely look -- while the cell phone's in your hand?

I can see an argument in response. Albeit one that's not in the opinion. Maybe it's more dangerous to look down at your cell phone than it is to look at a cell phone on your dashboard. (I suspect that's true.) So maybe the Legislature drew that distinction.

Though if you're holding your cell phone up on the dashboard while you're looking at it, maybe the two are equivalent. (Though you still lack the maximal use of your second hand on the steering wheel if you're holding the cell phone in your hand while you look at it.)

Anyway, here's the rule:

No looking at a map on your cell phone while you're holding it in your hand.

(Though it seems fine to look at that same map on your cell phone while the phone rests on the console or in the passenger seat. Go figure.)

Add this holding to your prior knowledge of California Ticket Law.

Animal Protection & Rescue League v. County of Riverside (Cal. Ct. App. - June 4, 2025)

A pro-animal rights group protests a pet store in a Temecula shopping mall because the store allegedly buys its dogs from a puppy mill. Mall officials ask them to leave because the table set aside for protests had allegedly been "reserved by another group." The protesters refuse to leave, the cops are called, and then, according to one of the protesters, the police "'threatened [her] with arrest' if she did not leave the area. Davies [the protester] asked Leso [the officer] to “write her a ticket that she could fight in court” but Leso informed her 'that he would not cite and release her if she did not leave, but rather would arrest her and take her to jail.' Davies and the other protestors then left the area."

The protesters then sue, claiming that their rights were violated when the police illegally forced them to leave the property by threatening them with arrest. The trial court then granted summary judgment to the defendants on the ground that the officer "never told Davies that she would be booked into jail, or that she would be arrested, or that she was in violation of any law." The Court of Appeal affirms.

But I gotta tell you, that's not the way I read the facts, and I think a lot of people -- reasonable people -- would agree with me on that one.

The officer had a body worn camera, so we know perfectly well what the officer said. He first told the protester that mall security told them to leave, and if they didn't do so voluntarily:

“You’ll be ejected for the day” since “it’s their property [so] they’re allowed to do that [and] we don’t want to get into any trespassing issues here . . . because if a private place tells you to leave . . . then refusal to do so is 602.1(a) of the Penal Code."

Does that sound like a threat to arrest someone if they don't leave? It certainly sounds like it to me.

But it gets even clearer. The protester then asks the officer: “Is there any way you could issue me a ticket?” (She adds: "The only reason why I would like a ticket is just to show that we did not want to leave.”) Here's the officer's response:

“No because . . . there’s no issues here. If you refuse to leave and they want to press charges . . . you’ll just get booked into jail for it with a citation."

Uh, that fairly clearly sounds like a threat to arrest someone. The whole "you'll just get booked into jail" thing seems pretty unambiguous, no?

I understand that, after the lawsuit is filed, the County of Riverside's litigation position was that it's not their regular policy to threaten to arrest people for legally protesting in shopping malls, and that “[t]he Department does not contend that if a mall owner or manager does not want expressive activity taking place in certain, publicly-accessible part of the mall, that Deputies can lawfully arrest peaceful protestors who remain there for not complying with the mall’s rules.”

But I think a reasonable factfinder could conclude that, at least here, the individual officer did indeed think that it was legal, and proper policy, to threaten to arrest someone in precisely such a setting.

So it seems to me that there's an actual controversy here. Defendant's policy may be X, but when the Defendant does the opposite of X, that's a legitimate dispute -- and lawsuit.

And I think that the officer did indeed threaten to arrest the person.

Indeed, did so fairly unambiguously.

Hubbard v. City of San Diego (9th Cir. - June 4, 2025)

Today's Ninth Circuit opinion arose across the street from my home.

A group of yoga instructors teach yoga for "free" (they accept donations, and most people contribute) on the beach -- specifically, Sunset Cliffs -- in San Diego. Typically, 30-60 people participate. The good thing about doing it on the beach, apart (of course) from the fantastic view, is that it doesn't cost the instructors anything, as opposed to having a yoga studio.

The City of San Diego didn't like that, so last year, passed an ordinance that said you can't do that, and started enforcing it. The yoga teachers sued and moved for a preliminary injunction, but lost.

Today, the Ninth Circuit reverses, holding that yoga's an expressive activity and that the ordinance is unconstitutionally content-based because it disallows (inter alia) yoga while allowing other types of expressive activity (e.g., teaching Shakespeare) on the beach.

So come on down. Free beach yoga. In a very pretty spot.

P.S. - It seems to me that the City could probably accomplish its desired objectives by instead imposing a "tax" on any expressive activities on the beach. Just say that any "donations" solicited in a public park on the beach are subject to City tax of 90% or so. Sure, there might be some enforcement difficulties. But I suspect that as long as it was content neutral, and applied to all expressive activities (very few of which request donations), that would probably survive constitutional scrutiny.

People v. Emanuel (Cal. Supreme Ct. - June 2, 2025)

You can readily understand from the underlying evidence why the California Supreme Court unanimously holds today that there was insufficient evidence that Louis Emanuel was recklessly indifferent to human life sufficient to find him guilty of first degree murder. He wasn't the shooter, and even the trial court found that he didn't know that his accomplice was bringing a gun to the robbery or planned to kill anyone.

Okay. Fair enough.

But I couldn't help but notice that the only real testimony here came from the defendant and those who have ample reason to assist him (e.g., his girlfriend). That's one big advantage of killing someone: You're typically the only ones left to explain what exactly went down during the robbery.

Here, for example, Mr. Emanuel and his accomplice met in a public park to buy a pound of marijuana. Now, that could just be a classic buy; no large risk to human life there. (Though probably not zero.)

But the buyers sua sponte offered to buy the week for $2200, even though everyone knew that the market rate was $1800. No explanation for why they made an above-market offer without even negotiating. And as far as I can tell from the opinion, there was no evidence that the buyers actually brought any cash. Plus, after the murder, Mr. Emanuel allegedly told his girlfriend that the seller wouldn't "give it up" and, as a result, was shot.

Doesn't that potentially lead one to believe that Mr. Emanuel and his accomplice had actually planned on robbing the seller from the outset? (I couldn't find any evidence that the robbery was just a spontaneous decision on the part of the accomplice, as opposed to planned.) And if the robbery was indeed planned, it seems fairly obvious that the planning involved a weapon, since very few people likely give up a pound of weed based upon a mere verbal entreaty to do so.

So, sure, Mr. Emanuel says that he had no idea that his accomplice had a weapon, that the victim (Mr. Sonenberg) struggled for control of the weapon, and that the accomplice "aimed the gun at Sonenberg’s leg, but Sonenberg pushed it up" which is why the bullet hit Sonenberg's neck and killed him. 

But what do you expect Mr. Emanuel to say? Mr. Sonenberg's not exactly there to contradict him. And his girlfriend only knows what Mr. Emanuel told her. That's the upside of killing the sole eyewitness to the crime. (Except, of course, for the actual shooter, but he hardly has reason to dispute your version of events.)

I'm not saying that it's clear beyond a reasonable doubt that Mr. Emanuel knew that there was a gun and that, as a result, he's guilty of first degree murder.

But a legal principle under which it makes a fair bit of difference whether the victim is left alive or not is probably one with some serious adverse incentive effects.