Theis v. Intermountain Educ. Sch. Dist. (9th Cir. - July 21, 2026)

Today's Ninth Circuit opinion is fairly high profile, so it'll get a tolerable amount of mention in the legal press already. But I nonetheless wanted to write about it here.

First off, let's present the case in a neutral fashion. I want to first get your reaction without knowing who's ox is getting gored. That way, you'll approach the issue as you should: without a political reaction one way or the other. What constitutional law doctrine makes sense, regardless of which group stands to practically gain or lose as a result of that underlying theory.

Let's set forth two noncontroversial backstops at the outset. First, as a general matter, under the First Amendment, employees of the government can't be told what they can or can't say outside of the work setting. If I want to say that Trump (or Obama) is awesome, or that our education system is terrible (or fantastic), or vote a certain way on my own time and outside of work, the state can't regulate that. Free speech.

On the flip side, as a government employee, the government can generally tell me what to say while I am doing my work. So if I'm a math teacher, the government can tell me to tell my students that two plus two is four, even if I'm convinced it's five. And, at least in the elementary and high school setting, if I am a teacher and the state makes me say that the Union won the Civil War and rightly so (to abolish slavery), the First Amendment doesn't allow me to tell my students instead that the South either won or should have won. The state's paying for my speech, so they can tell me what to say.

That's the law, and rightly so.

The question that the Ninth Circuit confronts today lies somewhat in the intersection of those two bookend principles.

Imagine that you're a middle school teacher, or guidance counselor in the same setting. You want to put up a poster, or want to prominently display a particular book in your very small office. one that your middle school students will definitely see. I'm deliberately not going to tell you what that poster or book is about. Maybe it's Martin Luther King. Maybe it's Trump. Or Che Guevara. Ditto for the book. Maybe it's Das Capital, or the Fountainhead, or Mein Kampf. Shouldn't matter. It's something that's clearly on a political, hot-button issue, and that definitely expresses an opinion on it. An opinion that some people in your workplace, including students, will perhaps like, and that other people will most definitely not like.

Do you have a First Amendment right to put up that book or poster? Or can the state tell you that's not appropriate and make you take it down?

That's today's case. One that results in both a majority opinion and dissent.

Which side are you going to take? Without knowing what the book is about.

Because -- and this will perhaps not surprise you in the slightest -- once I tell you which Ninth Circuit judges are in the majority and which judge is in the dissent, you'll simultaneously be able to accurately predict what type of material -- left- or right-wing -- we're actually talking about in this case.

So before you know that, what do you think? Is the state allowed to regulate what types of hot-button political material, related to but not "officially" part of the curriculum, middle school teachers or counselors prominently display in their student-facing office?

Got your answer yet?

Okay. So, in the present case, the hot-button issue involves transgender rights. The state wants to stop a middle school counselor from prominently displaying in his office, right behind his desk, books that are fairly clearly anti-transgender: He is He and She is She, alongside a book called Johnny the Walrus that has the same theme (namely, that Johnny calling himself a walrus doesn't make him one).

Judges Owens and Sung hold that's permissible; that because the counselor is on the state's dime and in the state's workplace, they're paying for his speech, and they can tell him to take the books down. Judge VanDyke dissents, saying that the counselor has a First Amendment right to display the books, even if the state (or others in the workplace) don't like the message.

Who's right?

As a matter of precedent, the majority has the better of the argument. There are a fair number of Ninth Circuit cases in analogous settings, all of which hold that the state can regulate on-campus speech by government employees. Judge VanDyke argues in dissent that the underlying law changed once the Supreme Court decided Kennedy in 2022, which was a freedom of religion case that held that a high school football coach was allowed to say a prayer on the field (alongside students) after the game. But the rule is that unless an intervening decision is "clearly irreconcilable" with circuit precedent, you still have to follow precedent, and I don't think Judge VanDyke makes a persuasive case that the Court's religion precedent necessarily overrules the circuit's free speech holdings in this area.

Precedent aside, though, ponder what the correct rule should be. Because there are serious dangers, in my opinion, on both fronts.

On the one hand, I really don't want teachers entirely free to express their off-base personal opinions on hot-button topics to middle school students. The state gets to -- and should -- regulate that. If you want to express your personal opinion on your own time about why America should be an all-white nation, or how the Jews really control the world, go ahead, you have that right. But, sorry, the state's allowed to -- and should -- say that you've got to keep those opinions to yourself when you talk about slavery or World War II to your students. Maybe -- maybe -- if the students ask you for your personal opinions, you can tell them what you think (or, at a minimum, tell them you're happy to talk to them outside of school). But you're not entitled to shove your personal opinions on hot-button topics down the throats of middle school students on the state's dime; the state can let you if it wants, but it can also regulate that if it so chooses. There are serious dangers if the law is otherwise.

At the same time, I'll readily concede that this position has serious downsides as well. If I'm a middle school teacher -- and there are lots of them -- it's a non-trivial harm if the state's allowed to force me to tell my students that President Trump is objectively the greatest president in history, that the Civil War was entirely about state's rights, or that the Twenty Second Amendment really only bars presidents from being elected to two consecutive terms. During all of which, potentially, I am compelled to wear a red MAGA hat and a pin that says "Trump 2028." In a different era, perhaps these would be viewed as absurd hypotheticals. No longer, I fear. Sure, I could always quit my job and teach at a private school, or in a different state. (Assuming, at least, that the federal government didn't elect to withhold funds from, or actively sue, institutions that failed to follow federal guidelines on these fronts -- another previously-absurd hypothetical that is now anything but.) Overall, a rule that allowed the state to entirely regulate what posters or books or words I employ during my teaching would have consequences, ones that could potentially be seriously abused.

Judge VanDyke's dissent raises similar points, albeit in a predictably partisan fashion, with references to "woke" principles and the like. In this regard, the majority opinion has a point when it argues that the dissent, "despite its length, is cheap cotton candy: a lot of fluff but not real substance." (Alongside a footnote that critiques Judge VanDyke for quoting Justice Powell's plurality opinion in Bakke, which, notwithstanding Judge VanDyke's response, really does have nothing whatsoever to do with today's result.)

But, nonetheless, ponder the overall point. What's the right balance here? What's the state's legitimate role in regulating the workplace, student-facing speech of middle school government employees?

I'll make only one more point. Judge VanDyke argues in his dissent that "the school officials’ real interest in censoring Mr. Theis’s personal speech in this case is not efficiency or anything similarly benign, but rather something much more nefarious: to give children the false impression that all the adults in the school personally share the same woke perspective on some or all of the most disputed questions in our culture today (emphasis in original), saying that's "the reality of what is likely really going on in cases like this."

It's absurd missives like this -- oft-repeated, unfortunately -- that merit justifiable rebuke. In reality, no one -- and I mean, no one -- is going to seriously think that a guy like Mr. Theis (or his ilk) is really in favor of transgender rights because he's not permitting to prominently display anti-trans books in his office. We all have known teachers or others like Mr. Theis in our lives. We all know where they stand, regardless of whether they've got books sitting out on their desks. No one thinks, or even would think, that every teacher in Eastern Oregon (!) personally favors transgender rights just because the state does not allow the prominent display of anti-transgender books or posters in their office.

Anyway, an interesting opinion today. One that I encourage you to seriously ponder. Especially in the modern era.

Garcia Demetrio v. Blache (9th Cir. - July 20, 2026)

The success rate for asylum petitions from citizens of Mexico is strikingly low. It remains to be seen if the petitioner here will ultimately prevail. But at least for the moment, she wins in the Ninth Circuit, which holds that the BIA erred in denying her petition seeking asylum and withholding of removal. (In the meantime, the Ninth Circuit grants a stay on her deportation, so at a minimum, she's at least got some time in the States.)

Here's what she said happened to her:

"In October 2023, Garcia and her children fled to the United States from their home in Ciudad Altamirano, Guerrero, Mexico, after becoming targets of a criminal group. One month earlier, Garcia’s husband disappeared without trace or explanation. Garcia reported this disappearance to local authorities, who failed to investigate despite her follow-ups. Her husband remains missing.

After learning that her husband had disappeared, two men showed up at Garcia’s residence. The men told Garcia’s aunt, with whom Garcia lived, that they were government officials who wished to speak with Garcia about her eligibility for financial assistance programs for single mothers. The men left instructions for Garcia to attend a follow-up appointment the next day at an office in the city center.

When Garcia arrived at the office, she was confronted by four masked men, armed with rifles and wearing vests. They refused to let Garcia leave. The men told Garcia that they wanted to “take [her] girl and [her] boy to work with them” because they knew that Garcia was alone. The men planned to use her son to sell and traffic drugs, and said that her daughter might sell drugs or be raped. The men told her that she had two days to consider their offer or they would kill Garcia and her children. Garcia went home, collected her children, and immediately fled, taking a bus to Mexico City. She left without reporting the incident to the police; she wanted to “run as far as possible because [she] had fear that they could kill [her] and [her] three children.” Criminal organizations in Mexico routinely force adolescents to sell and transport drugs on their behalf, and adolescent girls are particularly at risk of sex trafficking.

On November 4, 2023, Garcia and her children entered the United States through the Nogales port of entry. She sought asylum upon arrival." 

U.S. v. Holcomb (9th Cir. - July 17, 2026)

This one took a long time.

It's an appeal in a criminal case that was filed in 2023. The oral argument was in September 2024, and the panel issued its original opinion roughly six months later, in March 2025.

So far, fairly routine.

But then the panel withdraws the opinion in September of 2025. It then takes another ten months to prepare and submit a revised opinion, which it does today.

It's a Fourth Amendment case, and there's a big fight between the majority and the dissent about whether the search here -- which was conducted pursuant to a warrant -- should have stopped once it reflected that the alleged crime pretty much certainly did not occur. (The purported victim alleged that she was raped, but the video, which she didn't know was being taken, fairly convincingly showed that the events were consensual, and that what the victim alleged had occurred did not, in fact, transpire. The opinion contains excruciating detail regarding what actually went down during this sexual interaction.)

I would predict that we have not seen the last moves regarding this appeal. There will likely be an en banc call, if only given the nature of the dispute and the fact that the panel's result means that it will likely be impossible to convict the defendant of the other crime they eventually saw after they continued the search: the defendant's rape of his nine-year old daughter, a video of which was on the same computer and for which the defendant was sentenced to 20 years in prison.

U.S. v. Hendrikson (9th Cir. - July 15, 2026)

In today's opinion, the Ninth Circuit vacates two counts of interstate solicitation in a murder-for-hire plot, for which the defendant (James Hendrikson) was sentenced to two 20-year terms of imprisonment back in 2016. One might facially think that's a big deal -- 40 less years in prison.

But those sentences were imposed concurrently with a ton of other counts. As a result, even after directing judgments of acquittal on these two counts, Mr. Hendrikson remains sentenced to two life terms in prison. Plus 20 years after that. (Plus, after he's dead, five years of supervised release, a supervision which should be fairly easy to accomplish.)

So no big deal in reality.

The underlying facts are fairly unusual. As Judge Fletcher explains: "James Terry Henrikson hired a hit man who murdered two of his business associates. He hired a different hit man to murder three other business associates, but those murders were never carried out." How much did he pay for the murder that actually occurred, you might ask? $20,000.

That's relatively inexpensive, no? The price of a (fairly crappy) new car is apparently the price of a human life? Whoda thunk?

Jackson v. Meyer (Cal. Ct. App. - July 14, 2026)

Let me see if I have this right.

A married couple has a trust in which they've placed all their community property, but then -- after 48 (!) years of marriage, if my calculations are correct -- Wife files for divorce. Promptly thereafter, as part of the dissolution proceedings, Wife revokes (as permitted by the trust) her contributions to the trust, and sets up her own trust in her own name. Wife serves Husband with this revocation, and while Husband objects that the revocation should be filed in court as well, he doesn't do anything to contest the revocation.

For some reason, the dissolution proceedings take a long time. Five years after filing for divorce, Wife dies. Wife appears to have left her share of the community property to the daughter of Wife and Husband, Linda, who is the trustee of Linda's (separate trust).

Here's the part I find stunning:

At that point, Husband files a petition to declare that Wife's revocation is invalid, and that he -- rather than his daughter -- should get all the money and be the trustee of the entire community assets. Needless to say, the daughter objects.

The trial court disagrees with Husband, and the Court of Appeal affirms. Rightly so.

Wife clearly didn't want her share going to the Husband from whom she sought a divorce. At least from what I know from the opinion, I'm more than happy this case turned out the way it did.

Price v. Diab (9th Cir. - July 13, 2026)

It's the summer doldrums on the California appellate side, so there hasn't been much for a bit. Today does, however, see this opinion by the Ninth Circuit, and I appreciated what Judge Bress did here.

It would have been easy to simply reverse in a brief unpublished memorandum disposition, or to reverse with some skimpy analysis. But Judge Bress doesn't take the absurdly easy route. His opinion is relatively  short -- ten pages -- but it takes the issues seriously, and then adds something helpful at the end.

It's an Americans with Disabilities Act case filed by a high-frequency litigant, so the defendant (potentially very smartly) doesn't even respond to the complaint and lets his default be taken. As a result, the plaintiff gets injunctive relief -- an order to comply with the ADA -- but nothing else. The district court is clearly not psyched by the plaintiff's tactics, so doesn't award even a penny of fees, despite the somewhat small amount ($9,364) requested by plaintiff. The district court's theory was that since all that the plaintiff got was an order that required defendant to comply with an already-existing law, she wasn't a prevailing party at all, since nothing changed.

Judge Bress disagrees, and he's right. The judgment changes the situation of the parties. The injunction makes it much easier to actually enforce the ADA (with contempt), and that rightly counts as "winning" under the ADA. You're a prevailing party. The analysis by Judge Bress on this point is cogent and compelling.

Then, at the end, Judge Bress adds a tangential discussion about fees, and I think it's a helpful one. Not only in this case, but in cases generally. He writes:

"To the extent Price asks us to rule on the amount of fees she should receive, we leave that determination for the district court in the first instance. But to provide guidance to the district court and Price on remand, we make a brief observation on one argument that Price advances in this court.

The district court found that even if Price were a prevailing party, her counsel “would not be entitled to the unreasonable amount that they request.” Price, 761 F. Supp. 3d at 1290. The court noted that Price’s fee motion appeared to be “recycled . . . nearly whole-cloth from another recent case” her attorneys had filed. Id. at 1289. As a result, the motion had copy-paste errors, did not reflect the procedural history of the case, and used incorrect male pronouns for Ms. Price. Price’s counsel does not dispute reusing a template from a prior case. But in briefing before this court, counsel characterizes the errors the district court identified as “irrelevant editing mistakes that would have required additional billable time to address.” 

It should go without saying that the issues the district court identified are not “irrelevant editing mistakes,” but instead reflect a lack of diligence. Sound lawyering (of course) includes making sure that the fee motion papers pertain to the case at issue. Courts consider the “[q]uality of representation” when determining a reasonable fee award. Van Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1046 (9th Cir. 2000). And we have affirmed that in “a ‘straightforward’ ADA case with boilerplate pleadings, minimal legal complexity, and little in the way of difficult fact discovery,” a reduction in fees can be justified, particularly when the case involves a “serial” plaintiff and a “lack of meaningful opposition” by the defendant. Shayler v. 1310 PCH, LLC, 51 F.4th 1015, 1017, 1021 (9th Cir. 2022).

The district court’s concerns with Price’s lawyering and the quality of the fee petition may appropriately factor into any fee award determination. But because the district court did not reach what a reasonable fee award would be, we remand for the court to address that issue." 

Nice finish.

People v. Sacco (Cal. Ct. App. - July 8, 2026)

"It is ordered that the opinion filed herein on June 4, 2026 be modified as follows: on page 9 in the last paragraph, second sentence delete 'witness' and replace with 'victim'."

Yep. Those are indeed different.

People v. Garner (Cal. Ct. App. - July 8, 2026)

This opinion certainly meets the criteria for (admittedly belated) publication.

In 2002, a then-15 years old gets convicted of (alongside his 18-year old accomplice) "robb[ing] the victim and her boyfriend, kidnapp[ing] the victim at gunpoint, and t[aking] turns raping her." He gets sentenced to 50 years in prison.

In 2024, the defendant (Jarvis Garner) petitions to be resentenced on the ground that his 50-year sentence is equivalent to life without parole (LWOP) since "the average age of death for a California inmate is 54 years" and, in any event, the average life expectancy of a Black Californian is 74.6 years. So, he says, his sentence is functionally equivalent to life in prison forever.

The California Attorney General . . . agrees.

Even though the trial court denied the petition, on appeal, the California Attorney General confesses error and says that, yes, the sentence here equivalent to LWOP.

The Court of Appeal is not particularly thrilled with that concession. It allows the District Attorney of San Joaquin County -- the party that opposed the petition in the trial court -- to appear as amicus curiae and oppose the grant of relief.

The panel ends up agreeing with the San Joaquin DA and rejects the Attorney General's concession.

The sentence is not equivalent to LWOP, the Court of Appeal holds, because (1) the panel refuses to accept the statistical evidence since the trial court didn't make a factual finding about it (weak sauce, in my view, but perhaps doctrinally accurate), and (2) even if all that's true, under current law, Mr. Garner is eligible for a parole hearing after 15 years in prison, so it's not LWOP, since he has a chance to potentially get out.

Most interesting to me is the fact that the California Attorney General conceded the point. (Second most interesting is that the Court of Appeal rejects that concession.) The concession may tell you something about the general approach of the current California Attorney General (Rob Bonta) -- one with which different people might stridently agree or disagree.

PWGG v. Bonta (9th Cir. - July 6, 2026)

Oops.

Doe v. Marysville Joint USD (Cal. Supreme Ct. - July 2, 2026)

I wish I could recommend an opinion today that was profoundly worth general reading, but no such luck (at least yet).

In the meantime, if you want to read something extremely erudite -- yet exhaustively boring -- here's an intricate civil procedure opinion by Justice Evans that should have you riveted. So long as you are hugely fascinated by the intersection of federalism and the Supreme Court's collateral estoppel jurisprudence as applied to the ostensibly procedural federal two-dismissal rule.

Engrossing indeed.

People v. Powell (Cal. Ct. App. - June 30, 2026)

There's good news for Quindale Powell in this opinion. Though admittedly not much.

In 2008, he's sentenced to 50 years to life for murder. In 2024, he files a motion in the trial court that says that his sentence contains mistakes. The trial court agrees in part, and gives Mr. Powell . . . two more days of custody credit.

That's something, I guess. But definitely not much.

But Mr. Powell then appeals, claiming that because the trial court modified the sentence, it should have granted him a full resentencing -- one that included all of the many sentencing changes that have taken place in California since he was originally sentenced in 2008. The Attorney General disagrees, and says that the trial court didn't have jurisdiction to do anything at all.

The Court of Appeal disagrees with both sides, and holds that the trial court did have jurisdiction to correct the miscalculated pretrial custody credits, but that's it, and was not required to (and could not) engage in a full resentencing.

And then the Court of Appeal holds that, in fact, Mr. Powell was entitled to three, rather than two, additional days of custody credits. So amends his sentence accordingly.

That counts as a win, I guess?