U.S. v. Perez-Garcia (9th Cir. - Sept. 4, 2024)

Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:

"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id. 

Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.

A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).

The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).

I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."

Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.

But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.

For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:

"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.

The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .

 I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"

That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)

In any event, some fairly vitriolic stuff out of the Ninth Circuit today. 

Kirkpatrick v. Chappell (9th Cir. - June 13, 2019)

What a tangled web.

It's a death penalty case, and Judge Reinhardt writes the original opinion (joined by Judge Wardlaw), with Judge Kozinski writing a classic Kozinski dissent.  Needless to say, given that Judge Reinhardt wrote the majority opinion, you know how the case turned out:  the denial of the defendant's habeas petition was reversed and remanded.

The California Attorney General files a motion for panel rehearing (and rehearing en banc), an event that's likely going nowhere.  But while that motion was pending, troubles begin for Judge Kozinski, and he ultimately resigns at the end of the year, before the motion is decided.

Now, you may think:  "The guy dissented.  Not like his replacement is going to change anything."  And you'd be right.  Nonetheless, you've got to replace him, let the new member of the panel review the briefs and oral argument, and weigh in.

So Judge Christen gets drawn.  She's working on getting up to speed on the briefs and arguments.

And a few months later, Judge Reinhardt dies.  (Parenthetically:  Google, can we please get a better picture of the guy to pop up when someone does a search for "Judge Reinhardt dies?"  It's almost like you looked long and hard for a close-up photograph of the guy with his eyes closed.)

So now we have to replace Judge Reinhardt.  Judge Bea gets drawn to replace him.

And, perhaps predictably, the result of the opinion now changes.  The new panel orders the case reargued and, today, unanimously rejects the defendant's habeas claim on the merits.

The dispositive difference just being purely a matter of timing.  Had the court acted just a little faster on the pending motion, the defendant would have a live habeas claim, and chance for reversal.  But in a twist of fate, his victory gets taken away.

It doesn't really matter, of course.  As I mentioned earlier today (again, coincidentally enough), it's not like Mr. Kirkpatrick is likely to be executed anyway, since he too is in California.  Which, again, ironically, is exactly what Judge Kozinski said at some length in his original dissent to Judge Reinhardt's opinion in 2017.

To end where I began:  A tangled web.

Perez v. City of Roseville (9th Cir. - May 21, 2019)

In February 2018, Judge Reinhardt authors a majority opinion that reverses the district court's grant of summary judgment.  There's no dissent; Judge Tashima concurs in the result.

A judge on the Ninth Circuit calls for en banc review.  Judge Reinhardt then dies.  Judge Ikuta is drawn to replace him.

With its new member, the newly constituted panel completely reverses course, and affirms the grant of summary judgment.  The original member of the majority opinion (alongside Judge Reinhardt) dissents, saying not only that the original opinion was correct, but arguing that once an en banc call is made, only the en banc court should reverse the panel's opinion -- that it's unseemly that a judge's death should change things.  (Parenthetically, Judge Tashima never explains what made him change his mind from the original opinion, in which he concurred in the result, but now reaches an opposite conclusion.)

We'll see if the Ninth Circuit wants to take this en banc.  I suspect they'll be at least several votes to do so.

U.S. v. Sellers (9th Cir. - Oct. 15, 2018)

Interesting lineup in this case.  Which is the only one published by the Ninth Circuit today.

Everyone's skeptical of reverse sting stash house cases.  Everyone.  Those cases are ones in which the government recruits someone (typically, a criminal) to convince a group of other criminals (the future defendants) to raid a fake stash house and steal some drugs from some other fake criminals.  There's no real stash house, no real drugs, and no other real criminals.  But the theory is that it makes people less hesitant -- in other circumstances -- to steal from actual stash houses since there's at least some chance that they're simply being set up by the government.

No one on the panel especially likes those cases.  They disproportionately target minorities.  They "set up" crimes that wouldn't otherwise happen.  Lots of other reasons as well.  All of which are explored at length in the various opinions.

But the different panel members nonetheless have different takes.

Judge Reinhardt was originally on the panel, but died three weeks after the oral argument.  Just from knowing the guy, you've got a pretty good sense of where he almost certainly stood on this stuff.  To the left, for sure.  No doubt.

Judge Nguyen writes the majority opinion.  Plus she writes a lengthy concurrence to her own opinion.  She's crystal clear on where she stands as well.  Doesn't like these kinds of cases.  For a plethora of reasons.  Her majority opinion makes it clear that it's hard to bring selective enforcement claims in these types of cases -- claims that argue that minorities are unfairly targeted -- but follows opinions from the Third and Seventh Circuits that says that the correct standard for permissible discovery over such claims is different from the Ninth Circuit's standard for bringing selective prosecution claims, so remands for application of the correct test.  Sounds right to me.

Judge Graber dissents.  She was drawn to replace Judge Reinhardt.  She doesn't say that Judge Nguyen's necessarily wrong that a different standard applies -- though she doesn't say she's right, either.  Judge Graber simply doesn't want to decide the issue one way or another, arguing that the defendant's evidence in the present case indisputably doesn't satisfy any standard since it only consists of statistics, which Judge Graber believes are categorically "irrelevant" under controlling Supreme Court precedent.

Personally, I'm not sure what harm it does to reverse and remand for application of the correct legal standard.  Even if, on remand, the defendant's statistics may not be sufficient to meet the new test.

But Judge Graber thinks we're deciding something that we don't need to decide.  Ergo the dissent.

The subtext of Judge Graber's argument is essentially that there's no way that a defendant will ever be able to prove selective enforcement/prosecution.  Which, as a practical matter, may be correct.  If you take the view that statistics are entirely irrelevant, short of the government putting pen to paper and saying "Make sure you target minorities for these sorts of things" -- which ain't gonna happen -- you are pretty much always going to come up short.  No proof, and probably no discovery even either.

But Judge Nguyen thinks it still makes sense to articulate the correct standard, and let the district court decide whether that standard is met here.  That is how we usually -- but by no means always -- do things in the Court of Appeals.

Just a little fight here about which type of adjudication is most appropriate in the present case. 

Rizo v. Yovino (9th Cir. - April 9, 2018)

You'll probably hear about today's Ninth Circuit en banc opinion in various media.  The court holds that it violates the Equal Pay Act to pay a woman less for the same work a man does when the only justification for that differential is because the woman made a lower salary in a prior job.  To allow such a pay difference, the court holds, would perpetuate salary discrimination.

You may also hear today's opinion described (as it has been repeatedly) as "unanimous," but it only sort of satisfies this definition.  Yes, all 11 members of the panel agreed on the result.  But to say that the thing's unanimous overlooks key differences between the panel members -- differences that may well suggest that the Supreme Court might well take a different view of the subject.

The lead opinion -- for a bare majority of 6 of the 11 judges -- says that an employer can never be considered as a justification for paying women less than men.  That's the holding.

But five of the judges in this "unanimous" opinion disagree.  Judges McKeown and Murguia -- two left-leaning women on the panel -- join a concurrence that says that the majority goes to far, and that in their view, prior low salary is okay to consider if it's combined with other factors that justify the contemporary salary differential.

Judges Callahan and Tallman, not surprisingly, are even less sympathetic to the majority opinion, and agree that the current case was improperly resolved (since the only basis for the pay differential was prior salary), but think that this is basically an exception to the general rule, and believe that there may be a plethora of situations in which prior salary can validly be used to pay women a lower salary than men.

And then Judge Watford concurs as well, holding that, again, here, the employer should lose, but only because it failed to demonstrate that its use of prior salary wasn't itself tainted by discrimination that resulted in the prior pay differential as well.

So, yes, everyone agrees on the result.  But it's a rare case when the only reason that an employer can come up with a basis for its pay disparity is the woman's prior salary.  There are generally legions of alleged reasons that can instead be advanced.  And, in those more routine cases, the panel is split on even the appropriate law to be applied, much less does it make it easy for a plaintiff (or jury) to prove as a factual matter that the pay differential was indeed discriminatory.

And the fact that even Judges McKeown and Murguia aren't on board for the majority's holding suggests incredibly strongly that the Supreme Court wouldn't exactly lovingly embrace the Ninth Circuit's ruling either.  If only because it's an exceptional understatement to say that most of the justices on that tribunal are far less sympathetic to the objectives of the Equal Pay Act than these two Ninth Circuit judges.

One final point.  The majority opinion is by Judge Reinhardt.  Who, as most of you know, died on March 29th.  The en banc court allows the opinion to go forward because "the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."  I'm confident that's correct.  I'm also confident that if this is indeed the final opinion of Judge Reinhardt's long and incredibly productive judicial career, he'd be content with the happenstance.  It's a good way to go out.  A last opinion that's a fairly representative testament to how the man lived and the values he expressed.

And if this opinion is subsequently reversed by the Supreme Court; well, he'd be very much used to that as well.

Fighting to the very end.

Saldivar v. Sessions (9th Cir. - Nov. 7, 2017)

One of the words in the following list does not appear in today's dissent by Judge Kozinski to a Judge Reinhardt immigration opinion.  Can you guess which one?

Contronym, specious, rubbish, snicker, illogical, fool, nonsense, malaprop, perverse, trample, loophole, rabbit.

The correct answer is . . . the eighth of those words.  I added that one.

The rest are there.

U.S. v. Preston (9th Cir. - Oct. 17, 2017)

The panel here does a lot of work to reverse this child molestation conviction.  A lot.

I'm not certain that a lot of panels would reach the same result.  This one's Judges Reinhardt, Kozinski, and Berg (sitting by designation from the Eastern District of Michigan).

Longoria v. Pinal County (9th Cir. - Oct. 10, 2017)

Sometimes you write impassioned pleas to justice.  Sometimes you're writing to the Supreme Court to try to convince it not to reverse you.

Today's opinion reads like the latter.

It's a Judge Reinhardt opinion in a police shooting case that reverses the district court's grant of summary judgment in favor of the defendants.

That single sentence is all you have to know to understand why the opinion is moderate, restrained, and extraordinarily careful in its analysis.

Judge Reinhardt has three things going for him in this regard.  First, it's a unanimous opinion, with no dissent.  Second, he's got Judge Kozinski -- who's on the panel -- on his side.  Would it be even better if he had a law-and-order, don't-care-about-civil-rights-in-the-slightest conservative on the panel and on his side as well?  Sure.  But Judge Kozinski helps at least a little.

Finally, there are the actual facts.  Summed up by Judge Reinhardt as follows:  "Pinal County Deputy Sheriff Heath Rankin fired two shots into Manuel Longoria’s back and killed him just as he was raising his hands above his head. . . . Rankin shot Longoria after the car chase had ended. Longoria’s car was fully immobilized; he was surrounded by armed officers, and his erratic driving no longer posed any threat to bystanders. He had been hit by several bean bag rounds shot from close range as well as a taser dart. Viewing the circumstances in the light most favorable to Longoria, the inquiry is thus whether he posed an immediate threat to Rankin or the many officers around him, or whether a reasonable officer would have perceived Longoria to be an immediate threat, after the non-lethal force was used but before Rankin shot him dead."

Plus there's a video of the whole thing.

All that's very helpful to Judge Reinhardt's opinion.

We'll see soon enough if that's enough to avoid en banc review (or dissents from the denial of such review) and/or a grant of certiorari from the Supreme Court.

But one thing's for sure.  Judge Reinhardt's trying his best.

Washington v. Trump (9th Cir. - March 16, 2017)

Classic Judge Reinhardt.

The Ninth Circuit denied the government's request to stay the district court's order that restrained the implementation of President Trump's "travel ban," and the United States subsequently dismissed its appeal.  You'd normally think that'd be it.

But a judge on the Ninth Circuit nonetheless requested an en banc vote on whether to vacate the Ninth Circuit's (now entirely moot) denial of a stay.  The en banc vote failed, and the Ninth Circuit let's us know that fact.

Judge Bybee dissents from the order, and explains why.  Judge Reinhardt files an opinion concurring in the denial of en banc review.  That concurrence, in its entirety, says:

"I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them."

"Small number of members to overturn or vacate it" -- letting you know how close the vote was, even though judges aren't permitted to reveal the actual vote totals.  "Independent and courageous," and so "regardless of the source" of the efforts to weaken the Constitution.

Not so veiled references.

Trader Joe's Co. v. Hallatt (9th Cir. - Aug. 26, 2016)

Here's a neat little trademark case from earlier today.

Michael Hallett lives in Washington state, buys a ton of products from Trader Joe's stores, drives 'em across the border to Canada, and then sells them (at a huge markup) in his own store -- called "Pirate Joe's" -- that has a nearly identical logo to Trader Joe's.  Trader Joe's isn't psyched about that, tries to stop Mr. Hallett from shopping at its stores, but Mr. Hallett uses disguises and other means to keep buying Trader Joe's products and supplying his own "Pirate Joe's" stores.

So Trader Joe's sues, claiming that Mr. Hallett is infringing its trademark.

The question here is whether U.S. trademark laws apply to Mr. Hallett's activities, a ton of which are in Canada.

The Ninth Circuit says that they do, reversing the district court's decision to the contrary.

So it's Traders 1, Pirates 0.

Oh, one more thing.

Judge Christen's opinion cites a particular Ninth Circuit case -- Reebok v. Marnatech, 972 F.2d 552 (9th Cir. 1992) -- around ten times or so.  That's not especially surprising, because Reebok involved a similar issue involving the extraterritorial reach of U.S. trademark laws over someone who allegedly sold counterfeit Reebok shoes over the border in Mexico.  I was particularly pleased to see that case cited so much if only because that opinion was authored by Judge Reinhardt during my clerkship with him.  So very, very long ago.  Yet I knew that case well.

So that was nice.  A blast from the past, as it were.

But my fond memories suddenly turned to horror on page 26 of Judge Christen's opinion.

In the middle of that page, Judge Christen includes a particular quote from Judge Reinhardt's prior Reebok opinion.  That quote reads:  "See Reebok, 970 F.2d at 557 (finding American court to be in a superior enforcement position vis-à-vis its Mexican counterparts because '[e]ach of the defendants, their principle places of business, and the vast majority of their assets are located in the United States'")."  (My emphasis added.)

No.  Please God, no.  Please don't tell me that when that opinion was drafted and published, it used the erroneous word "principle" for the term "principal place of business".  Yes, I fully understand that I am terrible at spelling, and grammar, and pretty much everything else remotely associated with the English language.  But if an opinion by Judge Reinhardt during my clerkship went out that made that mistake -- and I can assure you that it wouldn't have been Judge Reinhardt's mistake -- and then that mistake was reiterated yet again in other subsequent published opinions, I'd be embarrassed as well as horrified.  Please tell me it's not true.

So I went back to the original opinion and looked it up.

Whew.

The Reebok opinion uses the words "principal" and "principle" an even dozen times.  And uses the right word every single time.  Today's opinion by Judge Christen quotes Judge Reinhardt as writing "principle places of business," but -- thankfully -- that's not what he actually wrote.  His opinion says "principal places of business."

And I let out a huge sigh of relief when I saw that.

Judge Christen can leave the opinion as it is if she wants, of course.  But she might want to do Judge Reinhardt a solid and edit the quote.

That way no one feels shame.

Williams v. Johnson (9th Cir. - May 27, 2016)

The Ninth Circuit unanimously grants habeas relief because the state court erroneously discharged a juror.

The Supreme Court reverses and remands.

The Ninth Circuit then issues a brief order dismissing the habeas petition pursuant to its view of the Supreme Court's instructions.

The Supreme Court then reverses and remands again.

Today, the Ninth Circuit tries to make the third time the charm.  Judge Kozinski write the majority opinion and dismisses the habeas petition.  Judge Reinhardt dissents and would grant the petition.

Sometimes the Ninth Circuit must feel a little like a C- student vainly trying to do what its constantly angry third-grade teacher has instructed it to do.  Never seeming to do anything right no matter how hard it tries.

Though, if the analogy were to hold, the Ninth Circuit would have already graduated high school by now.  The district court docket number begins with an 03-.  And the Ninth Circuit caption starts with an 07-.

That's a lot of work without much progress.

Sialoi v. City of San Diego (9th Cir. - May 24, 2016)

I'm not sure why the City of San Diego filed an appeal in this one.

Here's how the Ninth Circuit describes the case:  "In October of 2010, officers with the San Diego Police Department responded to a report that two armed black males had been seen in the parking lot of an apartment complex. When they arrived, the officers, armed with assault rifles and eventually numbering over twenty, encountered not two armed black males but a large Samoan family celebrating the birthday of a seven-year-old girl. The officers detained the members of the family (handcuffing the vast majority of them, including numerous adolescents) and then searched each of them for weapons. Finding nothing incriminating, the officers then searched the family’s apartment without a warrant or consent. Again finding nothing incriminating, the officers left without removing a single family member from the scene or filing any charges."

Needless to say, a Section 1983 lawsuit follows.

San Diego moves for qualified immunity on behalf of the defendant officers.  The district court denies the motion.  On every single point.  The City appeals.  The Ninth Circuit rejects the appeal.  On every single point.  Without a single vote to the contrary.  (And it's a mix of judicial philosophies:  the panel consists of Judges Reinhardt, Paez, and Milan Smith.)

All that the appeal seems to accomplish is to delay the lawsuit and run up legal fees.  The City's as well as the plaintiffs'.  The latter of which the City will pay as well if the plaintiff prevails.

My tax dollars hard at work.

Ledezma-Cosino v. Lynch (9th Cir. - March 24, 2016)

Do we still have federal statutes that refer to "habitual drunkards"?

Apparently so.

Anyone so labelled isn't eligible for cancellation or voluntary departure in deportation (removal) proceedings.  Judge Reinhardt authors a majority opinion today holding that this statute violates the Equal Protection Clause.  The way he frames the issue is this:  "[I]s it rational for the government to find that people with chronic alcoholism are morally bad people solely because of their disease? The answer is no."

Judge Clifton dissents.  He thinks the statute is fine.  Plus, he begins his dissent with a point about how the issue was raised, saying:  "The words 'equal protection' did not appear in the opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino. Given that, it is not surprising that they did not appear in the government’s answering brief, either. Ledezma did not file a reply brief. So how did the issue arise? The argument deemed persuasive in the majority opinion is an argument of the majority’s own creation. Ledezma did not make that argument until urged to do so by the majority at oral argument and via a subsequent order for supplemental briefing. Perhaps that pride of authorship helps to explain why the majority finds the argument persuasive, despite its obvious and multiple flaws."

Judge Reinhardt's majority opinion is joined by a district judge sitting by designation.

I don't think you've heard the last word about this case.  Because votes en banc and/or for review by Supreme Court seem likely to me.

Smith v. Schiro (9th Cir. - Feb. 4, 2016)

An test that Robert Smith took when he was 15 years old (in 1964) indicated that he had an I.Q. of 62.  One that he took later that year indicated an I.Q. of 71.

Smith committed a murder in 1980.

Tests taken in 2005 and 2007 indicated in I.Q. of 89, 91, and 93.

What Mr. Smith's I.Q. was at the time of the murder is the difference between life and death.

Judge Reinhardt authors the majority opinion.  Judge Callahan dissents.  So you can guess where the Ninth Circuit comes out today.

You thought the bar exam was stressful.  Imagine a test that decides whether you live or die.

United States v. Estate of Hage (9th Cir. - Jan. 15, 2015)

Every decade there's a particular district judge in the Ninth Circuit who's a problem.  At least in the opinion of the Ninth Circuit.

In the 2010s, it appears to be Judge Robert Clive Jones.

You wouldn't have necessarily thought initially that it would be Judge Jones to be the one to go off the rails.  He's a former Cliff Wallace clerk.  He was a bankruptcy judge for fifteen years.  He was unanimously confirmed by the Senate to the district court in Nevada when he was appointed by Bush in 2003.

Yet here we are.

Those readers in Nevada may well be familiar with Judge Jones already.  Others may know a bit less about his peculiarities.

And I'm not talking about his strong conservative streak.  One that's gotten him reversed numerous times by the Ninth Circuit.  Or his relatively "out there" beliefs about various matters; for example, his written opinion that it's conceivable that a "meaningful percentage of heterosexual persons" would refrain from getting married were gay marriage recognized.

No, I'm talking instead about something different.  A pattern that puts him up there with some other notorious district court judges in the Ninth Circuit.  Something that I can explain fairly well just by reference to the words used by Judge Graber, joined by Judges Wardlaw and Murguia, in this Ninth Circuit opinion:

"The United States brought this action for damages and injunctive relief against E. Wayne Hage (now deceased) and his son, Wayne N. Hage, alleging that they grazed cattle on federal lands without a permit or other authorization. The district court found that, in fact, the Hages had grazed cattle on federal lands without a permit or other authorization. The court nevertheless ruled almost entirely against the government by holding—contrary to longstanding binding precedent—that the Hages’ water rights provided a defense to the government’s claims of trespass. The district court also ruled against the government on a counterclaim—filed at the district court’s invitation—even though the counterclaim plainly was barred by the statute of limitations. Finally, the district court held two federal agency officials in contempt of court for their ordinary actions, lawfully carried out within the scope of their regulatory and statutory duties, despite the fact that the actions had no effect whatsoever on this case. In this opinion, we vacate in part and reverse in part the judgment on the merits, and we remand for further proceedings before a different district judge. . . .

Defendants openly trespassed on federal lands. Rather than simply resolving the fact-specific inquiries as to when and where the cattle grazed illegally, the district court applied an "easement by necessity" theory that plainly contravenes the law. The district court also encouraged Defendants to file a counterclaim that was clearly time barred. The only support that the court cited to overcome the obvious jurisdictional problem was a decision that stands for the opposite conclusion. Moreover, as discussed more fully in a separate disposition filed today, the court grossly abused the power of contempt by holding two federal agency officials in contempt of court for taking ordinary, lawful actions that had no effect whatsoever on this case. [Citation]

A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies. Unfortunately, the judge’s bias and prejudgment are a matter of public record. On the first day of the 21-day trial, the judge stated: "the Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases." "[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious." "Your insistence upon a trespass violation, unwillful —your arbitrary determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this court."

During the contempt hearings, the judge stated: "I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for [animal unit months], for trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer." Compare 43 C.F.R. § 4150.3 (providing that the amount due for willful unauthorized grazing includes "all reasonable expenses incurred by the United States in detecting, investigating, [and] resolving violations"). The judge’s statements in this case reflect both pre-judgment of the merits and bias against the federal agencies.

Judge Jones’ improper treatment of government officials and his improper statements about federal agencies were the subject of United States v. United States District Court (In re United States), 791 F.3d 945 (9th Cir. 2015). [Which Judge Graber then discusses at length.]  We also have expressed concern about Judge Jones’ conduct in several other recent cases. See La Raza, 800 F.3d at 1046 (remanding to a different district judge because a reasonable observer could conclude that his "feelings against out-of-state attorneys are both well-established and inappropriately strong" and noting that this court had earlier found his comments "troubling" in Henry A. v. Willden, 678 F.3d 991, 1012 (9th Cir. 2012)); Benvin v. U.S. Dist. Court (In re Benvin), 791 F.3d 1096, 1104 (9th Cir. 2015) (per curiam) ("Here, the appearance of justice will best be served by reassignment to a different judge. The current district judge [Judge Jones] has already expressed explicit views on the appropriate terms of the parties’ plea agreement, suggested the terms he would and would not accept, and explained that he would not grant any motion dismissing forty-nine counts of the indictment unless the government complies with such terms."); Townley v. Miller, 693 F.3d 1041, 1043–45 (9th Cir. 2012) (order) (Reinhardt, J., concurring) (stating that Judge Jones’ actions "can only be explained as a deliberate attempt to evade review by higher courts" and that "[s]uch arrogance and assumption of power by one individual is not acceptable in our judicial system"). On remand, we instruct the Chief Judge of the District of Nevada to assign the case to a different district judge."

A federal judge repeatedly rebuked in this manner by the Court of Appeals might well reflect upon his conduct and decide to modify it.

But my bet is that that's not what we're going to see from Judge Jones, and that what we've started to see about him in the Ninth Circuit is only the beginning, not the end.

Bravo v. City of Santa Maria (9th Cir. - Jan. 12, 2016)

Today was a good day in the Ninth Circuit for civil rights plaintiffs.  And their lawyers.

First you have the Ninth Circuit affirming a fee award of over $1 million to a prevailing plaintiff who obtained $5000 in damages at trial as a result of an unconstitutional entry into a home.  That's a pretty piece of change.  The attorney's fees anyway, not the damage award.

I must say that it seemed a pretty striking set of facts.  The warrant that the police officers got to search the residence failed to mention that the suspect hadn't lived at that residence for seven months, and, indeed, had been in prison that entire time.  And the entry into the home wasn't some tiny little affair:  "At 5:26 a.m. on April 26, 2006, a Santa Barbara Police Department SWAT team knocked on the front door of the Bravos’ residence, announced their presence, and three seconds later shot off the locks and broke down the door. Simultaneously, the team deployed two 'flashbang' grenades outside of the back door."

Do that to my house and I'll be lucky not to have a heart attack and die right there.

A jury might well have rationally awarded substantially more than $5000 in damages.  But $5000 was how they saw the case.

So $1 million in fees?

The Ninth Circuit's fine with that.  Judge Reinhardt concurs and explains why he's totally fine with that, especially given the nature of the facts.  But Judge Hawkins' opinion focuses instead on the prior $360,000 settlement that the plaintiffs were able to extract from the other defendants.  Given that the claims against the various defendants were inextricably linked, and given (the majority agrees) that there were some real public benefits that resulted from this litigation, it wasn't merely a tiny victory, notwithstanding the $5000 (plus $360,000) result, so $1 million in fees was an appropriate result.

Given that the other published opinion today reversed the dismissal of a different Section 1983 case on the merits, it's a good day to be a civil rights attorney.

Or at least a slightly better one.

Norsworthy v. Beard (9th Cir. - Oct. 5, 2015)

The popular press will occasionally refer to litigation in which the California Department of Corrections has been ordered to provide a prisoner with gender reassignment surgery.  (For example, here's the Fox News version of the story.)

The next time one of your friends mentions this case, you can supplement this discussion with a note that the case has at this point been dismissed as moot.  Since the prisoner at issue has been released on parole.

There's still a lingering question about whether the underlying opinion -- a nonprecedential one by the district court -- should technically be vacated as well (in light of the subsequent mootness).  Judge Callahan believes the answer is clearly "yes" since the defendants had nothing to do with the grant of parole:  "The process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR."

Judges Reinhardt and Tashima, by contrast, are not as convinced of this fact as Judge Callahan.  In a lengthy footnote, they find it "interesting" (to say the least) that the case just-so-happened to be made moot the day before oral argument.  Here's what they say in a lengthy footnote:

"[A]lthough our dissenting colleague may be willing to accept the defendants’ assertions regarding the independence ofthe parole review process, we are notso convinced. Before Norsworthy filed this suit, a panel of the parole board had on several prior occasions denied her parole. It last did so in March 2013 for a three-year term, meaning that Norsworthy’s next parole hearing should in the ordinary course have come in March 2016. Four months after Norsworthy filed this suit in February 2014, however, the parole board decided to advance the date of her next parole hearing. That hearing was then delayed and, in the meantime, the district court granted the motion for a preliminary injunction in April 2015. A little over a month later, Norsworthy finally had a parole hearing, at which point a parole board panel approved her application.

By statute, both the full parole review board and governor can review a panel decision within a certain time. See Cal. Penal Code §§ 3041, 3041.2. Here, if both the full parole board and governor had let these statutory periods lapse without action, the parole determination would have become final on October 18, 2015. As it happened, this court asked the parties on July 20 to provide an update regarding Norsworthy’s parole and address whether the parole board panel’s decision mooted the case. In their response, defendants informed us for the first time that the full parole board had at some point approved the panel’s decision and that defendants “anticipate[d]” a final decision from the governor by August 7 that, if favorable to Norsworthy, would insure that she would “be released from prison in August.” The governor did indeed approve Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that oral argument should proceed as scheduled on August 13 because CDCR planned to release her on August 14, meaning that she would still be incarcerated on the date of oral argument. Defendants reply—filed on August 12, the eve of oral argument—informed us that Norsworthy had in fact been released that very morning. The reply did not divulge why Norsworthy’s release date had changed. . . .

[T]hese coincidences indicate that there is at least some chance that defendants influenced the parole process."

Judge Callahan, by contrast, says that this claim -- and the majority's decision to remand the case to the district court to see if defendants in fact influenced the parole process -- "approaches sophistry".

Regardless, the case is moot, and Ms. Norsworthy will not have the state pay for her reassignment surgery.  At least if she stays out of prison.

One more thing.  It's a sign of the times that both the majority and the dissent expressly refer to the petitioner as a woman.  Because whether you're sympathetic to her claims or not, at this point in our culture, it's a sign of respect to refer to someone by their identified gender.

On that, as with the fact that the present case is moot, everyone on the panel agrees.

Torres v. Goddard (9th Cir. - July 16, 2015)

This panel consists of Judges Reinhardt, Kozinski, and Bybee.  That's a lot of intellectual firepower.

The case arises out of the seizure of thousands of Western Union wire transfers in Arizona.  Between 2001 and 2006, Arizona officials apparently seized every single wire transfer from certain geographic locations to Arizona that exceeded a certain amount (typically, $500 to $2000) during a particular time period.  If, after the seizure, you wanted your money, you had to call a toll-free number and convince the government over the phone that your wire transfer was legitimate.  And if, in its unilateral discretion, they felt like giving your money back to you, they did; otherwise they figured you were engaged in human trafficking and kept your money (and subsequently sought to forfeit it).

It's a pretty stunning seizure.  I had no idea it went down.  The question for the panel was whether there's absolute immunity for the public officers who ordered it.  The Ninth Circuit holds that such immunity exists for the most part (in preparing the seizures), but not in actually executing them.  For that, the district court will have to figure out if there's qualified immunity.

The panel heard the oral argument at UNLV, which I'm certain was fun (and informative) for all those involved.  I'm not exactly sure why the resulting (unanimous) 26-page opinion took over a year and a half to create; that's an awfully long time.

But I'm sure that Judge Kozinski would say you can't rush quality.

Or even nudge it along a little.

Mitchell v. U.S. (9th Cir. - June 19, 2015)

Cases like this put Judge Reinhardt in a tough position.

It's a death penalty case, so you know how he's going to vote.  It's currently a habeas case, but a federal one.  Which means that there was also a prior opinion on direct appeal.  Judge Reinhardt was on that panel as well.  Which voted 2-1 to affirm.  You can guess who the 1 was.

At this point, the claim is ineffective assistance of counsel.  Notwithstanding Judge Reinhardt's dissent, there's not especially good evidence of attorney misconduct.  It was a federal prosecution, so multiple veteran federal public defenders, plus an attorney in private practice, were assigned to represent the defendant at trial.  This wasn't some backwater state prosecution with intoxicated lawyers doing a half-assed job just to make a buck.  This was a real defense.  So it's extraordinarily hard to find incompetent representation.

Oh, and who was the district court judge who oversaw the case?  Judge Murguia.  Currently on the Ninth Circuit.

So this leaves Judge Reinhardt with three options.  All of which he advances.

First, he notes that it's pretty weird that this guy ends up being sentenced to death.  Which is true.  The victim's family doesn't want it.  The Navajo Nation doesn't want it.  The relevant U.S. Attorney doesn't want it.  But John Ashcroft did.  So a guy with no criminal history gets sentenced to death even though his more culpable partners get life.  A result especially strange since the murder charge itself doesn't lead to the death penalty (since the Navajo Nation has opted out); only the fact that there was an underlying carjacking gets the dude sentenced to death.

This provides ample fodder for Judge Reinhardt's dissent.  And he uses it well.

The only problem being that this isn't a legal argument against the imposition of the death penalty.  So no relief there.

Second, Judge Reinhardt can go down the straightforward legal path and try to paint the lawyers as incompetent.  Which he does.  Well.

But, in my view, the facts just aren't there.  Even if hindsight was 20/20, I'm not at all confident that Judge Reinhardt's preferred "he's a bad guy but had a bad upbringing" strategy was any better than the choice of the actual defense attorneys to paint him as a good guy who did a terrible thing.  It's at least sufficiently close to make deference to the people with boots on the ground appropriate.  So that doesn't work.

Which leaves Judge Reinhardt to ask the President for clemency.  Which he does also.  Again:  Well.

There's lots to recommend such an approach.  Plus, maybe it's possible.  Maybe Obama or Clinton or someone else will listen.

But it's still a longshot.  These are political issues.  I'm not confident that a President will elect to use his or her capital on something like this.  Especially since one of throats that was slit belonged to a nine year old girl.

This isn't a state case that has been around forever.  It has progressed through the federal system fairly quickly.  The murder was in 2001.  The defendant was 20 years old at the time.  The conviction and sentence have already been affirmed on direct appeal, and now the habeas petition has been denied on the merits.  The only things left are a petition for rehearing and en banc review, and attempt at certiorari in the Supreme Court, and then a successive habeas petition.  All of which are even less likely, in my estimation, than executive clemency.

So, absent a blanket moratorium, you're probably looking at someone who's actually going to be executed.  Notwithstanding the fact that Mr. Mitchell is probably on the low end of the "irredeemably evil" scale as contrasted with his contemporaries on death row.  The likelihood that this 35-year old guy dies in prison before the sentence is carried out is not especially high.

Bemore v. Chappell (9th Cir. - June 9, 2015)

When I saw that it was a death penalty habeas case, and that Judge Berzon had written the opinion, I felt I had a reasonable guess as to how it might come out.  When I saw that Judges Reinhardt and Gould were on the panel, and that neither had dissented, I felt even more strongly that I knew where this one was going.

But as I started to read the syllabus, I began to falter.  Deficient representation, sure.  But no prejudice.  No prejudice again.

Could it be?  Could this panel really affirm a death penalty case?!

Fear not.  I finally reach the end of the syllabus.  The conviction gets ratified.  But the death sentence gets reversed.

Which is what one might have guessed purely from the caption.