Castrijon v. Garcia (9th Cir. - Jan. 9, 2013)

It's an immigration case.  Sure, Judge Reinhardt's on the panel.  He's even writing the opinion.  So you have a keen sense from the get-go how the case is going to come out.

But the question presented is whether kidnapping is categorically a crime of moral turpitude.  Kidnapping.  Come on.  Even Judge Reinhardt has to answer that question in the affirmative, right?

Nope.

Well then, certainly someone's going to dissent, right?  Judge Clifton?  Randy Smith?

Wrong again.

Which makes one -- or at least me -- say:  "Really?  Again:  Kidnapping?!  Not a crime of moral turpitude?  Seriously?" 

So I read the opinion.  At the outset, pretty skeptically.

But, that said, I'm on board for a lot of what Judge Reinhardt says.  Both in this opinion and in others he's authored.  What counts as "moral turpitude" is totally vague.  What counts as "categorically" an offense that involves such a quality is even more amorphous.  We're talking about social mores here -- things that are in a constant state of change -- and inherently vague ones at that.  So picking out some offenses amongst others and calling them "inherently' turpitudinous is really hard.  That's how I initially approach the subject, and I'm sure Judge Reinhardt agrees.

But dude.  We're talking about kidnapping here.  Not sodomy.  Not something that changes over time.  We are talking about a crime that we've always -- always -- taken extremely seriously, and that I'm confident will always be a serious crime.  Everywhere.

Still, we've got to remember that calling something a named offense isn't always accurate.  Sometimes what you think a particular crime entails is actually far different from the statutory elements.  So we have to look deeper.  Which Judge Reinardt does.

But this just heightens my initial impression.  Judge Reinhardt repeatedly notes that the statutory elements of simple kidnapping in California don't require that one "intend" to do harm to a victim, or intend to do bad things to them once you get them to where you're taking them.  Fair enough.  I get that.

The statute nonetheless requires that the defendant take the victim by force or by instilling fear.  So we are talking about forceful kidnappings.  Well, geeze.  Seems to me those are wrong.  Seriously wrong.  When you force someone to do something against their will, I have a keen sense that's included in the category of offenses which the oldsters called malum in se and what we might generally call intrinsically wrong.  Forcing someone to do something against their will:  You can't get much more wrong than that, right?  That's why we generally have big sentences for the underlying crimes.

Look, Judge Reinhardt is smart.  He nonetheless starts to sway me a bit.  He says -- correctly -- that these offense need to be really serious before they count as moral turpitude.  Seriously serious.  Does kidnapping really count?  As I'm reading the opinion, I still tend to think so.  But he compares it to murder.  To things that are really, really serious.  Which makes me think:  Well, okay, maybe.  "Simple" kidnapping may be bad, but I agree that one might view it as qualitatively different than those other offenses.  Murder's worse than taking someone against their will.  Though both are bad.

(Mind you, this argument only gets Judge Reinhardt so far.  Murder's worse than kidnapping, which argues in favor of Judge Reinhardt's holding.  But incest is a categorically turpitudinous crime -- presumably even consensual adult incest between 68 year old siblings who never met before they did the dirty deed -- and if you ask me whether kidnapping is "worse" than that, my answer's pretty clear.  So the examples go both ways on that issue.)

So we've got to figure out the dividing line.  One that separates the "bad" from the "really" bad.  Judge Reinhardt has one, and it's the crux of his argument.  He says that categorically turpitudinous offenses either involve vulnerable victims -- e.g., children -- or an intent to injure or an actual injury.  That's indeed what Ninth Circuit precedent says.  So Judge Reinhardt's best argument is that simple kidnapping doesn't always involve vulnerable victims (because even competent adults can be kidnapped), doesn't require an intent to injure (true), and doesn't necessarily involve injury either.  So there you go.  Doesn't fit the definition.

But hold on a second.  What about that last part?  Necessary injury.

What Judge Reinhardt says -- persuasively -- is that it still counts as kidnapping even if you don't (for example) cut the victim during a knife with the process.  So if only physical harm counts as an injury, Judge Reinhardt seems right.

But I'm not at all sure that's in fact accurate.  We routinely count emotional harm as an injury, and often seriously.  Take rape, for example.  Some rapes seriously injure the victim physically, to be sure.  But the biggest impact may be psychological.  How it makes the victim feel.  The helplessness.  The requirement that one do something without one's consent.  The violation of autonomy.  We think of those things as very serious consequences -- and (appropriately) very seriously punish such offenses -- and constantly call them "injuries".

Those same injuries inherently exist with kidnapping.  Helplessness.  Nonconsensual acts.  Violation of autonomy.  Every forceful kidnapping -- every single one that meets California's statutory requirements -- results in those harms to the victim.

This seems to me a big problem with the majority's analysis.  The dividing line between offenses is a vague one, to be sure.  But if you apply the line that precedent has drawn, and that Judge Reinhardt discusses at length, the "actual injury" portion seems pretty strongly to point in the direction of finding these offenses to be categorically qualify as crimes of moral turpitude.  It seems to me that Judge Reinhardt's analysis assumes sub silentio that we're only talking about purely physical, demonstrable harm.  But we're not.

One other thing as well.  Which, in a concrete way, somewhat highlights this point.

To support his position, Judge Reinhardt has to come up with actual ("non-hypothetical") kidnapping offenses in California that wouldn't count as moral turpitude.  He does.  His primary example is a protest case in 1972 in which black students at a college forcibly surrounded some school administrators and led them across the campus (against their will) to talk to the college president.  Judge Reinhardt notes that the California judiciary affirmed the defendants' conviction in that case, and accordingly argues that the statutory elements of the crime in California thereby include conduct that doesn't involve vulnerable victims or actual injury.

One could certainly take that view.  The school administrators in that case were indeed physically unharmed.  No one hit them or punched them or sliced them with a knife.

But Judge Reinhardt notes, in passing, that some students "pushed" the administrators, and also "made threats" to make them continue moving.  These acts are of no small importance, since remember that the statute categorically requires the use of force and/or threats of physical harm.

Which made me go back and look up the underlying case.  Which mentions that the "threats" to which Judge Reinhardt obliquely refers to entailed the students telling the administrators that "if the man comes in, we're going to do you" (i.e, if the police come in, we're going to kill you) and, during the forced march, telling the victims "move along whitey or we're going to stick you" (i.e., keep moving or we will stab you).  (That the victims took these threats seriously was no surprise, and in fact, during the forced trek, one black student in fact punched a white student in the jaw.)

Now, one could say -- as Judge Reinhardt does -- that since the students did not actually stab or kill the victims, there was no actual injury, and that the example establishes that simple kidnapping need not entail a "serious" crime.  But think about it another way.  From the perspective of the victim.  You're taken against your will by a crowd of students that's actively threatening to kill you.  You fear for your life.  Reasonably.

What about that as "injury"?  I wouldn't be surprised in the slightest if you had trauma.  PTSD.  Might not even be able to work as a teacher ever again.  And even if you "toughed it out," being subjected to such incredible stress and the underlying inherent violation of your autonomy is injury.  Always.  Every time.  A violation that I think does, in fact, count as a serious injury.

So I'm not sure I take away from Judge Reinhardt's examples what he wants me to take away.  (The same, by the way, goes for his other example, which involves a parent kidnapping his adult child who has gone to live with her boyfriend against his wishes.  Yeah, there's no intent to injure.  But from the perspective of the 18-year old victim, who had a right to live with -- and perhaps even marry -- her boyfriend if she wanted, and without her father's consent, there's definitely injury nonetheless.  Inherently.)

All of this is a very long way of saying that I wonder if the panel really gets this one right.  Judge Reinhardt recognizes at the end of his opinion that his result might be somewhat counterintuitive, and I give him props for that.  He's right.  He's also right that just because something might seem wrong at first glance doesn't mean that it is.  That's why we reason these things out.  That's why we think deeply.

But I've done so, I think.  And despite the fact that, at points, Judge Reinhardt's opinion had me persuaded (or nearly so), in the end, I think he might be wrong.  I agree the line's fuzzy.  Very much so.  But if the line is what it appears to be, then I think kidnapping might well fall on the other side of it.

Which is a different way of saying that sometimes one's initial impressions are wrong.  But sometime's they're actually right.

P.S. - Let me end with a simple point.  One that someone tracks the above analysis.  Everyone agrees that rape is a crime of moral turpitude.  What about sexual assault?  Someone grabbing someone's breasts or crotch over their clothes.  It can happen to adults, and both genders, so no vulnerable victim, and might also occur from a person who doesn't intend harm and not involve "physical" injury.  Does only rape counts as a turpitudinous offense, or does sexual assault count as well?  They seem darn similar to me, despite the fact that the latter may well involve less physical harm.  The offense is the assault on bodily integrity.  That's why it's malum in se.  Ditto, in my view, for kidnapping.

Nunez v. Holder (9th Cir. - Feb. 10, 2010)

Rarely do I change my opinion as radically as I did when I read this case.

I'll describe my reaction temporally. The first thing I notice is that the respondent's name is Holder, which means it's an immigration case, and the second thing I see is that Judge Reinhardt authors the majority opinion and Judge Bybee dissents. Which gives you a rough outline of what's likely coming up.

Then I read the first two paragraphs of Judge Reinhardt's opinion. Remember: Judge Reinhardt is far from a shrinking violent. And yet his majority opinion begins with what can perhaps best be described as something like an apology -- an introduction that's radically atypical for him. This is not the usual firebrand opening gambit. It's the exact opposite.

But even after reading the first two paragraphs of the opinion, you still don't know exactly what the case is about. You know it's about whether a particular offense counts as "moral turpitude" under the immigration laws, and that morality varies from neighbor to neighbor, and that our precedent in this area is somewhat fuzzy. All well and good. And we hear Judge Reinhardt say not to be surprised if you're surprised by the results, ending the introduction with: "As some in today’s society might say, and with good reason, 'Go figure.'"

Only in Part III of the opinion (!) do we learn precisely what the case is about. Only then does Judge Reinhardt tell us that the offense we're talking about is indecent exposure, and hence that the opinion is going to be all about whether wagging your genitals in public counts as a crime of moral turpitude. And given that we already know the lineup of the opinion, we also know how the majority's coming out. Which in turn hinted to me precisely why Judge Reinhardt started out so meekly. Because of course indecent exposure is a moral turpitude offense! And yet I know he's going to hold it's not. Hence the unusually cautionary opening.

So, by Part III, I'm thinking: "No way I'm getting on board for this one. Moreover, no way the Supreme Court's not going to summarily reverse. It's just too much to hold that something like indecent exposure -- a classic moral turpitude offense -- isn't in fact moral turpitude." And that remains my exceptionally strong take even as I start to plow through not only Part III, but also the vast majority of Part IV. Come on. It has got to be moral turpitude. I'm definitely going to be with Judge Bybee on this one, and he's going to have to infinitely better of the argument.

But then I get to Part IV(C). Which takes me a while -- 14 single-spaced pages, to be exact -- but at that point, I'm all of the sudden not so sure. Because, remember, we adopt a categorical approach to these things. And Judge Reinhardt starts to persuade me that California's crime of indecent exposure sure covers things that constitute moral turpitude -- showing your genitals to a group of children, masturbating in public, etc. -- but also criminalizes lots of other things that may be qualitatively different as well. For example, "flashing" people at a bar who want you to flash them. (Think "Girls Gone Wild") Or people engaging in consensual oral sex through a glory hole in a bathroom -- people have been convicted for indecent exposure for doing that as well, even when no one else sees (or is supposed to see) it happening.

Once Judge Reinhardt tells me that California has extended its statute that far, as well as reminds me that consensual private sodomy -- now constitutionally protected -- used to be a classic "moral turpitude" offense as well, I start to be persuaded that his "harm others" line for moral turpitude offenses makes some sense.

Indeed, totally surprisingly, once Judge Reinhardt persuades me that he's actually right, I start to question -- crazily enough -- the tentative way the opinion begins. Because you know what? The problem here, I'm persuaded, is not that "morality" is too diffuse or uncertain, but rather that California has simply expanded its definition of indecent exposure too far, hence making an offense that typically does entail moral turpitude into something that may not. Moreover, the correct object of one's ire extends not only to the relevant state, but also to the judicial doctrine that created the categorical approach in the first place -- that's what causes the anomolous (and, to a degree, unjust) result here.

Plus, the government's to blame as well. Given what the doctrine says -- both the categorical approach as well as the expansive state law doctrine of indecent exposure -- why didn't the government introduce evidence that satisfied the modified approach and proved that Nunez was convicted (as I'm sure he was) of a true moral turpitude offense rather than due to his appearance on "Boys Gone Wild" or on one side of a glory hole?! Sure, I'm confident that Judge Bybee is correct when he says that "[w]hatever Ocegueda[-Nunez] did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a 'tasteless prank.'" But why didn't the government simply show that?! And if it somehow couldn't (and I'm not at all sure it couldn't), isn't that an indictment of the underlying doctrine (the "categorical approach"), not the result here?

So at the end of the day, I'm not only persuaded by Judge Reinhardt's opinion, but actually think it could legitimately have been more strident. Which was far, far from my reaction at the outset.

I, by the way, may well not be the only one who had their initial impressions altered by thinking this thing through and reading Judge Reinhardt's analysis. Notice, for example, that Reinhardt's opinion is joined by Judge Milan Smith. Who's hardly either a lefty or someone especially looking to help out perverts. Now, maybe Judge Smith is just a lot quicker than I am, so caught the right result even at the outset. If so: Congratulations to him, as well as to Judge Reinhardt. In any event, the fact that Judge Smith joins the opinion may also strongly suggest that notwithstanding my first impression, the majority opinion not only has persuasive power, but staying power as well.

I'm happy to admit it when I'm wrong. At least once I realize it. Here, I'm persuaded that my first reaction was misguided. And that ultimately, Judge Reinhardt is correct.

Good job getting the right result a lot, lot faster than I would (or potentially could) have.

P.S. - A random personal anecdote. The reference to the status of "glory holes" in California reminded me of a "Welcome to USD" party we once gave to an incoming colleague who had just joined us as a junior faculty member. (Fear not: Notwithstanding the overall topic, this not a "Penthouse Stories" tale.) To make a long story short, after a lengthy evening, the four of us -- all young professors -- ended up at 2:00 a.m. in a fairly seedy bar in downtown San Diego, the bathroom of which we soon discovered was replete with fully functional, and clearly well-used, glory holes. This, mind you, after we had spent the previous many hours inventing a new nickname -- "J. Lo." -- for our new colleague, and consistently referring to him by this new appellation. (As we occasionally do to this day.) At which point, I can only imagine, our new colleague must have wondered: "Precisely what type of faculty have I gotten myself into here?" Anyway, Judge Reinhardt's discussion reminded me of that younger, rowdier era.

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.

Carver v. Lehman (9th Cir. - Dec. 22, 2008)

Yes, I know that it's the holiday season. So, yes, you're busy. We all are. Nonetheless, you've got to read this one. It's an instant classic.

The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.

Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.

I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)

Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.

Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.

I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."

From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)

Great stuff. Simply wonderful. Read the whole thing and see what you think.

My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.

I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.

Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.

I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.

But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.

Anyway, a great -- and interesting -- debate. Check it out.

Oshodi v. Holder (9th Cir. - Jan. 26, 2012)

What do you do when another panel in your circuit issues a holding you don't like, but the opinion doesn't get taken en banc?  Drop a footnote like this.

This immigration case gets argued and submitted in 2009.  That's a long time ago.  It then bounces around, getting withdrawn, resubmitted and deferred until it's ultimately resubmitted in June 2011.  So the panel's now ready to write (and/or issue) an opinion.  But two months later, in August, Judge Reinhardt writes an opinion in a different immigration case -- Ren v. Holder -- that's really, really bad for the present panel's desired resolution.  The issue in the current case is whether the IJ properly made an adverse credibility finding.  That exact same issue was at issue in Ren.  And Judge Reinhardt's opinion held in that case that IJs cannot make adverse credibility findings based on absent evidence without giving the petitioner a chance to explain the things that the IJ thinks are missing.  Which didn't happen in the present case.  So it looks like the panel here has to reverse.

But that's not what the panel wants to do.  It wants to affirm.  And it certainly doesn't want to follow Judge Reinhardt's holding, which it doesn't like.

The problem is that Judge Reinhardt's case was even older than the current one.  That case was argued and submitted in August 2009, and also took two-plus years to decide.  So the panel has to follow it.

But they don't feel like it.  So they drop a footnote -- footnote four -- that says that even though Judge Reinhardt's opinion "purports" to make this holding, it's really dicta since the issue was not presented for review.

Really?  Are you sure?  Here's what Judge Reinhardt's decision says:  "We must first decide whether under the REAL ID Act, the IJ, having concluded that corroborative evidence was necessary, was required to give Ren notice of that decision and provide him with an opportunity to obtain the required evidence or explain his failure to do so. A plain reading of the statute's text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof."  That doesn't sound like dicta, does it?  And the panel certainly seemed to think that this issue was presented for review and was necessarily decided, right?

One view might be that Judge Reinhardt (and the rest of the panel) was totally overreaching and that the current panel was thus right not to follow his opinion.  Another view might be that the current panel was simply displeased with this holding and didn't feel like following it, and that calling a clear holding "dicta" improperly created a conflict with circuit precedent.

Regardless of who's right, I don't think that you can permit conflicts like this stand, particularly on issues (like this one) that constantly arises.  I think the Ninth Circuit has to take this one en banc and decide what the right rule is.  The proper resolution of the issue shouldn't depend upon an arcane -- and highly contentious -- inquiry into whether a particular issue was "really" presented by the briefs and whether a panel that clearly intended to make a particular holding "really" did so.

U.S. v. Castillo-Basa (9th Cir. - Feb. 26, 2007)

They both have a good point.

When I first read the facts of the case, my reaction was the same as Judge Trott's. A defendant can be convicted of perjury even if he's acquitted at the underlying trial. They're two separate offenses. They have distinct elements. Double jeopardy doesn't apply. So, I thought, when X takes the stand and says "Y isn't true", X can thereafter properly be convicted of perjury when Y is true and X knew it. Even if X got off at the original trial.

But, upon reflection, I think that Judge Reinhardt has a point. He argues that, at least in some cases, double jeopardy should bar the subsequent perjury prosecution. Because, otherwise, the government could basically commence multiple prosecutions over the same basic offense. And, though he doesn't make this point, the regression here could potentially be infinite. X gets up at his trial for murder and testifies "I didn't do it." He's acquitted. Then the government brings a perjury prosecution, claiming that X lied when he said he was innocent. X then takes the stand at the second trial and says "I didn't lie; I really didn't do it," is acquitted, and the government then brings a third prosecution. Ad nauseum.

So I originally thought that, had O.J. testified, a perjury prosecution would have been entirely proper. Now, after reading Judge Reinhardt's opinion, I'm not so sure.

Mind you, this would all be irrelevant if thecourts properly applied collateral estoppel principles to criminal cases. But we don't. At all. Starting with Blockburger in 1932 and up to the present era. Hence we have the double jeopardy problem here.

In the end, like Judge Wardlaw, my own views on the subject probably come closer to Judge Reinhardt than Judge Trott. I'd have written a slightly different opinion than my former boss (including, ironically enough, that I wouldn't have been nearly as defensive as he was, though I imagine that some of that was probably just for Judge Wardlaw's comfort). But, in the end, I would probably have come out the same way.

P.S. - Another small difference. Unlike Judge Reinhardt, I wouldn't have gratuitiously slammed -- hard -- the prosecution in the O.J. Simpson case. Make sure to read the conclusion of footnote 6 (on page 2107) for Judge Reinhardt's comment about "the unprecedented imbalance in legal skills between the Dream Team and the prosecution" therein. Oh, and, unlike Judge Reinhardt, I wouldn't have made reference to the fact that "the glove didn't fit". I'm pretty damn sure that it did.

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.

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.

Tchoukhrova v. Gonzales (9th Cir. - April 21, 2005)

This is the type of case that's right in the middle of Judge Reinhardt's wheelhouse. He's at his best when he's writing opinions in such cases. And he hits this one out of the park.

At issue is whether asylum can be granted to a person (and his family) when he is disabled and persecuted in his native land on that basis. Judge Reinhardt -- and this should come as a surprise to utterly no one -- holds that he can, and orders withholding of deportation. And Judges Tashima and Wardlaw agree.

The first seven pages of this opinion are masterful. They recount in detail the circumstances the surrounded the birth of this disabled child in Russia and the treatment he subsequently received. Anyone who fails to be touched by Judge Reinhardt's recitation of the facts here is entirely heartless. This is not a well-told story to which we have numbingly become accustomed. Judge Reinhardt's opinion begins with a powerful emphasis on the facts that both touches the reader's soul and provides a concrete setting in which the subsequent legal analysis that he performs is to be applied.

This is one way to write opinions that persuade. And Judge Reinhardt is a master at it. This is an outstanding piece of legal writing. It is one of Judge Reinhardt's finest opinions in a while. Great job, ex-boss.

Samayoa v. Ayers (9th Cir. - April 4, 2011)

The California Court of Appeal has been quiet lately.  No new opinions published either today or Friday.

But the Ninth Circuit doesn't disappoint.  Here's what it publishes today.

Over a year in the making (oral argument was in August 2010).  It shows.

Here are the first four paragraphs of Judge Silverman's opinion:

"It is undisputed that on December 18, 1985, appellant Richard Samayoa beat Nelia Silva to death with a wrench in the course of burglarizing her home. Samayoa also beat to death Nelia’s two-year-old daughter, Katherine. The pathologist estimated that Nelia was struck in the head 24 times. The jury heard testimony that the faces of both mother and daughter were smashed in, their skulls crushed, and fragments of bone penetrated their brains. It is undisputed that Samayoa left Nelia and Katherine naked from the waist down — he said he did that to make the crime look like a rape — and then he stole jewelry from the Silva house that he gave away as gifts to members of his family. The mutilated bodies of both victims were found by Rolando Silva, Nelia’s husband and Katherine’s father. Photos of the decedents and of the bloody crime scene were introduced into evidence.

Nine years earlier, Samayoa had raped and sodomized a woman with multiple sclerosis, who begged him, 'Please don’t rape me. I’m a cripple.' He was convicted of burglary and rape and sentenced to prison. Five years later, while staying overnight at a friend’s home, Samayoa entered the bedroom of the friend’s sister and smashed a flower pot in her face in an effort to rape her. She suffered a laceration of her face that penetrated to her cheek bone. He was convicted of assault with a deadly weapon and again sentenced to prison. Samayoa also had a prior conviction for another burglary. Altogether, he had been sentenced to prison three separate times.

At the trial of the double Silva murders, which Samayoa conceded he committed, defense counsel presented testimony from three psychologists and a written report from a fourth to the effect that Samayoa suffers from, among other diagnoses, an organic brain disorder that could explain his violence. In addition, at the penalty phase of the trial defense counsel presented evidence that Samayoa had been a compliant prisoner during his previous incarcerations, proving that he can be safely incarcerated. They also presented evidence from his mother and sisters to the effect that they loved him and hoped his life would be spared.

The jury returned a penalty phase verdict of death after about 80 minutes of deliberation."

Judge Silverman holds that even if the defense lawyers had introduced testimony about Silva's terrible childhood, it would not have made a material difference.  Maybe the jury would have deliberated for 82 minutes instead of 80.  But given the undisputed facts of the case -- he beat a two-year old child to death, for goodness sake -- and the defendant's history, this is a guy who's going to be sentenced to death.  So the trial court was right, particularly when the California court's decision is viewed with AEDPA deference.

When I finished reading that opinion, I readily said:  "Seems totally right to me.  No jury -- particularly one in San Diego -- is going to be persuaded by this stuff.  He's going to die."

I noticed, of course, that Judge Reinhardt dissented from Judge Silverman's opinion.  But that's not surprising, right?  It's a death penalty case.  He'll make whatever arguments he can.

But then I read Judge Reinhardt's dissent.  And if Judge Silverman's opinion is -- standalone -- a persuasive assessment of the case, so too is Judge Reinhardt's.  As with Judge Silverman's opinion, if your only exposure to the case was reading the dissent, I think the majority of readers would be persuaded.  Here's the opening of Judge Reinhardt's dissent:

"This is a capital case in which the trial defense counsel, for reasons that are impossible to fathom, deliberately and knowingly refused to investigate the capital defendant’s abusive family background, the type of mitigating evidence that the Supreme Court has repeatedly emphasized is highly relevant to a jury’s decision whether to impose the death penalty. See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003). In fact, in this case it was the only mitigating evidence by which counsel would have had any realistic chance of persuading the jury to spare his client’s life.

Because Richard Samayoa’s trial counsel refused to investigate the circumstances of his client’s upbringing, the jury that sentenced him to death never learned that he was raised under unimaginably horrific conditions: that he was the victim of constant and severe physical and psychological abuse, that his family environment was rife with sexual abuse of children, and that he had drugs pushed upon him by abusive adult relatives starting at an extremely young age. Samayoa’s counsel had no strategic justification for failing to obtain such evidence and present it to a jury, especially as, in light of Samayoa’s brutal offense and his past brutal crimes, the only hope of persuading the jury to spare his life was to explain his criminal behavior as a product of the truly depraved conditions which from the outset shaped his existence. The failure to introduce that evidence probably made his death sentence inevitable.

The mitigation case presented by Samayoa’s trial counsel not only failed to provide the jury with a single reason to spare Samayoa’s life, but likely contributed to some degree to its decision to order him executed. The incompetence of the
psychological experts upon whom the defense relied to attempt to prove that Samayoa suffered from organic brain damage must have been evident to all, including the jurors: the 'experts' made basic mathematical errors in tabulating test results, diagnosed Samayoa with a non-existent psychological condition, [Footnote: Specifically, one of Samayoa’s experts, Dr. Saul Saddick, testified that Samayoa suffered from 'Organic Rage Reaction.' A government rebuttal expert noted that 'Organic Rage Reaction' is not a condition recognized by the American Psychological Association. Even today, more than
twenty years later, a Google search for 'Organic Rage Reaction' returns only three results, all of which are documents arising from Samayoa’s litigation that note there is no such condition as 'Organic Rage Reaction.'] and presented the jury with a mislabeled, upside-down diagram of the human brain. The testimony of the prison guards called by the defense was equally without import: the guards simply testified that Samayoa was 'above average,' for a prison worker. And the testimony of Samayoa’s mother and two sisters was of no assistance to him whatsoever: they testified that they loved Samayoa and would feel guilty if he were executed, because they helped turn him in. One sister stated that she would 'understand' if the jury sentenced him to death, and both testified that until they learned Samayoa was the culprit they had believed that whoever committed the murders for which he was convicted should be executed."

Here's a snippet of the underlying evidence that Judge Reinhardt concludes might have made a difference at trial:

"Samayoa was raised in a savagely violent family environment. Adult members of his extended family viciously beat one another bloody in front of children at family gatherings “pretty much every weekend.” The declarations of Samayoa’s cousins paint a picture of brutal, senseless violence among family members on a basis so routine as to amount to a ritual of sorts: Samayoa’s uncles beating their father (Samayoa’s grandfather) in front of his grandchildren; outsiders at family gatherings being set upon and beaten, parties that 'always ended up with major fights and blood on the walls.' Not surprisingly for a family in which '[v]iolence was a way of life,' Samayoa himself was regularly and severely beaten by his father, who did not work and spent his family’s welfare benefits on liquor. One family member recalls that, '[Samayoa’s] dad would beat the shit out of the boys,' and that Samayoa drew a disproportionate share of his father’s beatings, apparently because he refused to cry. That relative states that, '[w]hen . . . [Samayoa] was thirteen or fourteen years old, I saw him get beat five to ten times a month.' Another relative recounts that Samayoa’s father would lie on the family’s couch with a belt rolled up at his side, so that he would be able to beat his children with its buckle at a moment’s notice. Nor were belt buckles his only means of brutalizing his children: Samayoa’s mother recounted that, '[o]nce, when my husband was very angry with Richard, he put Richard’s hands in a flame to punish him.'"

Plus, because it's an opinion by Judge Reinhardt, no one gets off scot free.  Not only do Samayoa's lawyers get tagged, but Judge Reinhardt is not shy about sharing his opinions about his colleages either, saying (among other things):

"To be sure, a truly determined and creative jurist could engage in speculation and conjure up fanciful strategic justifications for Popkins’s refusal to investigate Samayoa’s background. One could, if one were particularly imaginative,
speculate that Popkins was concerned that questions as to Samayoa’s childhood would alienate his family, and result in their refusal to testify. In such case, the jurors would not have heard that although his family had initially felt that the perpetrator of Samayoa’s offense deserved to be executed, they appreciated the greeting cards he occasionally sent them from prison. Or perhaps Popkins felt that he could not afford to divert his focus from the correctional officers who would testify that Samayoa was an above-average worker. However, even if such flights of fancy could provide a minimally colorable strategic rationale for counsel’s refusal to investigate Samayoa’s background (which they plainly cannot),
Samayoa’s lead counsel did not provide any statement to that effect, and second counsel stated that no such strategic calculation justified the refusal to investigate. On the basis of the record before us, it would be nigh impossible for a fairminded jurist to deny that the 'decision not to investigate [Samayoa’s background] did not reflect reasonable professional judgment.' Porter, 130 S.Ct. at 453."

You gotta love the third and fourth sentences of that snippet.  You rarely see judges write things that are deliberately sarcastic.  Love it.

So when you read both opinions, you have a much better sense of what's at stake.  As well as the merits of both sides.  Personally, I think that it's very difficult to tell how juries decide to sentence people to death, which -- alongside the review of the evidence -- is the most persuasive part of Judge Reinhardt's opinion.  That stuff might well have made a difference to one or more jurors.  By contrast, the most persuasive part of Judge Silverman's opinion is the recitation of the undisputed facts, which do indeed make Samayoa out to be a monster, which is how most jurors would indeed view him.  If that's the case, it doesn't matter at all what made him a monster.  He is one.  Jurors would want to put him down.

So a fascinating debate.  That ultimately revolves around how people decide who will live and who will die.  With life-changing (indeed, life-ending) consequences for Richard Samayoa.

Judge Kozinski votes with Judge Silverman.  So unless the case gets taken en banc, Samayoa gets killed.

Cooper v. Brown (9th Cir. - May 11, 2009)

I know, I know.

It's 113 pages. Single-spaced. Plus, that figure doesn't even contain the majority opinion, since we're talking about a dissent from the denial of rehearing en banc.

Still. If you're going to read one 100+ page dissent from the Ninth Circuit this year, this should be the one.

I say that notwithstanding the fact -- and I know this will turn some people off -- that Judge Willie Fletcher's dissent contains a number of graphs and a number of references to r-squared statistics and the like. Stuff that I appreciate, but I recognize that I'm in the minority on this one.

Let me just pitch the case with the first line from Judge Fletcher's dissent. "The State of California may be about to execute an innocent man." With 100+ pages of support.

Judge Fletcher's opinion is a tour de force. One that's even more impressive when you recognize both how hard it is to go into on appeal the level of factual detail that is evident throughout the opinion as well as when you recognize how (relatively) quickly the thing was cranked out. Wow. Honestly, I'm in awe.

And I say that wholly notwithstanding the merits. Whether you agree or disagree with him, what Judge Fletcher and his chambers have accomplished here is impressive.

Let me say one other thing, too: How much I love my former boss, Judge Reinhardt. Who writes another classic Judge Reinhardt concurrence. Which I totally love. Even when -- as here -- I'm part of the group that he's slamming.

For decades, Judge Reinhardt has wanted the votes of en banc calls to be public, and gets angry that he's not allowed to reveal 'em. And so both expresses that frustration as well as does everything but. His short (page-and-a-half) dissent here continues that refrain, and does so in his inimitable style.

He says that he's in favor of revealing the vote. He blames not only the district court for its failures (as does Judge Fletcher), but also the Ninth Circuit. He also lets you know -- even though he's not allowed to tell you the actual vote -- that "the vote is extremely close, closer than the list of dissenters would suggest." But that's not all. He also says that "The public, the legal academy, our colleagues on other courts, and appointing authorities have a right to judge us based on our performance on the bench," and goes on to say: "In this case, in particular, I believe that public disclosure is important. Revealing how we voted would provide information that would be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted."

Can you read between the lines? What message do you get from all that, and is it similar to mine? Because the import of that language is (deliberately) far from crystal clear, and yet surely reveals information.

Let's dissect it. Okay, so the vote is close. Even though only 12 of the 27 judges have written or signed onto opinions dissenting for concurring from the denial (and hence whose votes we know for sure), we can devine there's a fair number of votes to take it en banc. I figure it's a one-vote swing, or at most two votes. My guess is the former: 13-14 against taking it en banc.

That's the first sentence. The second sentence says it's important that "the public" (that's us), the "legal academy" (that's me), "our colleagues on other courts" (the Supremes), and "appointing authorities" (that's Obama) should know who's voted for what. That says something. He then adds -- in my favorite line -- that disclosing the vote breakdown would "be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted." In the immortal words of Gary Coleman: Who you talkin' about, Willis?!

Okay, so I'll take that last comment -- intended or not -- as a (perhaps entirely deserved) slam on people who include myself. I'll also pick up the thrown down gauntlet, and reveal publicly my belief as to the breakdown. (I hasten to add that I've neither asked for nor received inside information on this point. Right or wrong, this is all my own external assessment.)

Here are my guesses. We know 11 votes in favor of taking the case en banc from their writing or signing onto dissents from the denial. They're mostly -- but not entirely -- predictable: Judges Fletcher, Pregerson, Reinhardt, Paez, Rawlinson, Wardlaw, Thomas, Fisher, Graber and Berzon (all Democratic appointees), plus Chief Judge Kozinski -- the last being one that's far from a certain vote, and who signs onto Judge Fisher's very nuanced concurrence that essentially says "I don't agree with everything Judge Fletcher says, but this is important enough to take en banc." We know only one published vote against taking the case en banc, Judge Rymer's, but many of the others are fairly predictable.

So let's assume -- for simplicity sake, if nothing else -- that every non-Democratic appointee (other than Chief Judge Kozinski) voted against taking the case en banc. With the 11 known votes in favor, that makes the vote 10-11, with Judges Schroeder, Hawkins, Silverman, McKeown, Gould, and Tallman left.

Here's my take. Gould and Tallman lean right in criminal cases, so -- from my "academic" court-watching chair, I'll put them down as no votes. Judge Schroeder does so as well, so add her to the list of "Shaun Martin Predicted No Votes." I'll put Hawkins and Silverman as "Yes" votes, even though I think they're less strident votes in this regard. Which leaves McKeown, who's especially interesting if only because I think Reinhardt's reference to "appointing authorities" is aimed directly at her end (since her name's been bandied about as a potentiall Supreme Court nominee). I'd put her down as a No vote on this one. Making the vote 13-14 against taking the case en banc.

All this is based purely on my personal assessment of the judges -- alongside, of course, the information that Judge Reinhardt reveals. All those of you on the Ninth: How's my prediction? Maybe not perfect, but I think it's at least close.

Anyway, it's an extremely interesting, if long, set of opinions. Definitely gets your mind flowing, and shows some real work on everyone's part.

Sarei v. Rio Tinto (9th Cir. - Oct. 25, 2011)

I dare you to read this opinion.  Wait.  I take that back.  I double dare you.

It's an important case.  An Alien Tort Statute case arising out of the operations of the Rio Tinto mining group on the island of Bougainville, Papua New Guinea and the resulting uprising against Rio Tinto that led to military intervention and numerous deaths.

These things transpired in the 1980s.  The docket number of this appeal begins with "02-".  This is not the second time this case has been before the Ninth Circuit.  This is the second time it's been before an en banc Ninth Circuit court.

It's important.  It's long-running.  And it's hopelessly fractured.  You can barely tell the result even with a scorecard.

There are eleven members of the panel.  Judge Schroeder writes one opinion.  She gets three votes:  her own, Silverman and Berzon.  Judge Ikuta writes another opinion.  She gets four votes:  hers, as well as Judges Kleinfeld, Callahan, and Bea.  A lineup that substantially overlaps with Judge Kleinfeld's opinion, which is joined by Judges Bea and Ikuta.  As well as Judge Bea's opinion, which is joined by Judges Kleinfeld and Callahan.  Oh, and Judge Ikuta as well.  Except for Part III.  She's not on board for that.

Judge Reinhardt writes an opinion as well.  He agrees with Judge Schroeder, and joins her opinion.  Except for Parts II(C) and Part IV(B)(3).  Judge Pregerson is also willing to agree with what Judge Schroeder says.  Except he, like Judge Reinhardt, doesn't agree with portions of Part IV(B)(3).  But Judge Pregerson, unlike Judge Reinhardt, is willing to sign onto Part II(C).  Moreover, while Judge Reinhardt agrees with Parts IV(C) and (D), Judge Pregerson doesn't.  So doesn't sign onto those parts.

Judge Rawlinson agrees with Judge Pregerson.  So joins his opinion.

Then there's Judge McKeown.  She's fine with all of the above.  But she has a beef with two entirely different portions of Judge Schroeder's opinion:  Parts IV(A)(3) and IV(B)(4).  So she writes her own opinion.  Which is in turn joined by Judges Reinhardt and Berzon.  Except for Part II of that opinion.  For that, she's on her own.  But she's got three votes for Parts I, III and IV. 

The whole shebang is 170 single-spaced pages.  Of dense, dense prose.  One of the dissents alone -- Judge Kleinfeld's -- has 136 footnotes of its own.  The final footnote of which, if I'm not mistaken, consists of Judge Kleinfeld citing a law review article by his son Joshua.

So go ahead.  Read the thing.  Figure out the score, as well as the fights.

I dare ya.

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.

Newdow v. Rio Linda USD (9th Cir. - March 11, 2010)

Hopefully you didn't forget about the Pledge of Allegiance cases. Because they're not over. Sure, the Supreme Court reversed the Ninth Circuit's earlier invalidation of teacher-led recitations of the 1954 version of the Pledge, which includes the words "under God." But remember that is reversal was only on procedural standing grounds, since the student's mother intervened to argue the other way. But that's easily solved. Plaintiffs got the parent of a new student -- this one with full custody -- to bring the same challenge. So we're back in the Ninth Circuit again.

The case was argued over two full years ago, back in December 2007. With everyone and his mother filing amici briefs.

So now the Ninth Circuit has to decide the merits of the case again. With the backdrop of both the Supreme Court's reversal (albeit technically on standing grounds) as well as the firestorm of controversy that accompanied its initial opinions.

Guess how the panel comes out? With the following (important) information: the panel consists of Judges Dorothy Nelson, Reinhardt and Bea.

Did you guess that the opinion was not unanimous? Of course you did. Did you guess that Judge Bea voted to find the Pledge constitutional, and that Judge Reinhardt voted the other way? Yep. Without a doubt. So which way does Judge Nelson vote?

The majority votes to uphold the Pledge.

I won't comment on the various opinions much. In part because this is an exceptionally high-profile case, so I'll have very little to add beyond what other people will say. But in large part because I can't add much beyond the various opinions themselves. Which span 193 single-spaced pages; as a result, most everything that can rationally be said has already been said by the authors themselves. When you've got over two years to write an opinion, and you know that every word you say will be exceptionally scrutinized, trust me, you do a good job. So I refer the reader to the opinions themselves.

The only thing I'll say is that this is (1) a classic Judge Reinhardt opinion, (2) a classic Judge Bea opinion (perhaps a bit more moderate given the inclusion of Judge Nelson), and (3) for better or worse, a somewhat predictable vote from Judge Dorothy Nelson. As for the latter, of course I do not know the inside of Judge Nelson's heart, or what she'd decide in a vacuum. But, given the prevailing context -- with the public and the current Supreme Court's view on the matter fairly clear -- I think Judge Nelson's decision is consistent with what one would expect. Judge Nelson and Judge Reinhardt are studies in contrast. Judge Reinhardt relishes a fight, and is more than willing to swim against even an overwhelming tide. Again, for better or worse, that's not Judge Nelson. Who has both a different personality as well as a different sense of what it means to be an appellate judge in these sorts of cases.

Notwithstanding the earlier Ninth Circuit opinion, I would not expect this one to be taken en banc. Sure, there may well be a call for a vote. But the Ninth Circuit has more Judge Beas and Judge Nelsons than Judge Reinhardts. Again, for better or worse.

Cordoba v. Holder (9th Cir. - Aug. 13, 2013)

I could be snarky and describe this morning's opinion by Judge Reinhardt as containing the following holding:

Rich people are a protected class and so can get asylum in the United States.

It'd be a pretty accurate description, too.

But I'll do slightly more than that.

Judge Reinhardt actually paints a pretty sympathetic picture of the plight of landholders in Mexico and, especially, Columbia.  There's a thriving business in kidnapping in both countries.  Often run by drug cartels in the former nation and, in the latter, by a rebel group (FARC).  If you're rich, you may well be targeted.  As amply demonstrated in these two cases.  Judge Reinhardt does a very good job of recounting the very detailed and exceptionally credible stories relayed by these two asylum petitioners.

Judge Reinhardt doesn't actually give 'em asylum.  Though I'm sure he thinks they're entitled to it.  The Ninth Circuit instead remands to the BIA.  Holding that being a landowner is indeed "membership in a particular social group" that may potentially entitle someone to asylum.

You don't typically think of Judge Reinhardt as a protector of the rich and powerful.  But when they're fleeing another country to escape persecution and abuse, he's more than happy to help out.

Understandably.

In Re Brad Levenson (9th Cir. - Nov. 18, 2009)

You don't see many Ninth Circuit orders/opinions that are actually signed by the author these days. It's typed, or there's a stamp, or whatever. So it's sort of cool to see an actual signature.

Plus, this is an interesting case. Brad Levenson is a deputy public defender, and he's had a same-sex partner for 15 years -- and has been married to him (in California) since 2008. After he got married to Tony, Brad tried to add him to his health insurance, but (predictably) was turned down by the feds, citing DOMA. So then Brad took the matter up with the plan, which -- in something that's not at all usual -- provides for resolution by a circuit judge. In this case, Judge Reinhardt.

Previously, Judge Reinhardt concluded (and still concludes) that Brad and Tony should get their benefits, but the federal government still refused. So now Judge Reinhardt says that he won't order the federal government to buy Tony benefits -- since that'd be forcing a contract on the federal government, which is indeed problematic -- but he will give Brad money to compensate him (and Tony) for what they've been forced to spend on Tony's insurance. Since there's a right here (equal protection) and there should be a remedy as well.

Which ends with Judge Reinhardt's signature. Alongside his statement that he's going to retain jurisdiction to see to it that Brad and Tony not only get their money now, but in the future also. The federal government can do what it wants. But Judge Reinhardt's going to do what he wants as well.

Fields v. Palmdale School District (9th Cir. - May 17, 2006)

This one is hilarious. Simply hilarious. In part because it's fairly rare. And in part because of both the tenor and content of what it says.

This is the latest installment of the (somewhat) high-profile case in which a bunch of parents sued when their kids were given various sex tests in a Palmdale, California public elementary school. Back in November 2005, my old boss, Judge Reinhardt, issued this opinion, in which he upheld the 12(b)(6) dismissal of the lawsuit.

At which point there was a fair amount of attention paid to the controversy -- as well as Judge Reinhardt's opinion -- both in legal circles and in the press. To which the plaintiffs wisely respond by promptly getting a new lawyer, backing themselves up with several amici, and filing a petition for rehearing en banc. Note: They don't file for a petition for rehearing. They know they ain't getting anywhere with Judge Reinhardt. So they go directly over his head.

At that point, reading between the lines, one gets the definite sense that the petition is getting a fair amount of attention from the Ninth Circuit. As these things sometimes do. Various exchanges are going back and forth amongst the judges in connection with what's likely an en banc call. Again, these things happen. At which point the judge who issued the opinion typically defends it internally, other judges attack it, and then you take a vote. Simple.

But what's funny here is that Judge Reinhardt does something a little different. Instead of merely addressing the matter internally, he decides -- in light of the petition for rehearing en banc -- to issue a new opinion nostra sponte. Now, mind you, he's not amending and replacing the old opinion. That one stays. Rather, all that he's basically doing in the new opinion is essentially responding to the petition for rehearing en banc, as well as some of the various issues that his colleagues have (presumably) raised internally in connection with the en banc call. True, in connection with this response, he also modifies a couple of sentences in the first opinion, in part (again) to placate his detractors. But the prinipal point -- and it's just funny to read -- of the new opinion is to (1) defend his original opinion, and (2) defeat the call for en banc review. Which usually is far, far from what happens. Sure, sometimes you amend your opinion in response to a petition for rehearing. Sure, often you defend your opinion in response to a petition for rehearing en banc. But rarely, rarely, rarely do you write something like this, which directly responds -- at length -- to the particularlized attacks on your opinion. And that ends with: "The Opinion filed November 2, 2005, is REAFFIRMED."

Anyway, read this one. Its tone is very funny, and sounds exactly like Judge Reinhardt speaks in chambers. When something this unusual comes along, it's definitely worth a read. Rarely do Ninth Circuit judges sound so much like advocates. Too funny.

Schad v. Ryan (9th Cir. - Nov. 10, 2011)

Here's an opinion (in 2009).  No, wait.  We want to amend it.  Here's our revised opinion (in 2010).  Which still has the same lineup on the votes, but substitutes a new defendant, since there's a new warden.

Hold on.  We want to amend the opinion again.  Here's the second amended opinion.  Still in 2010.  Same lineup.  But we also include Judge Callahan's dissent from the denial of rehearing en banc.  As well as make some minor changes in the panel opinion.

Wait.  We're not done.  It's 2011.  Time for another amendment.  Here's our third amended opinion.  Which has the same parties as the earlier amended opinions, but now has a different lineup.  Since Judge Graber has now replaced Judge Rymer, making the opinion unanimous.  With Judges Schroeder, Reinhardt, and Graber all agreeing on the result.

Though not the way you'd think.  The previous opinions reversed the denial of habeas relief with respect to the death sentence.  This last opinion affirms the denial of habeas relief.

That's what the panel does today in this per curiam death penalty case.

Three points.  Beyond noting that I don't recall previously seeing an opinion that was amended three different times over a period lasting more than two years.

First, notice that the defendant sentenced to be executed outlives one of the members of the panel.  There's irony for you.

Second, I recall reading a Senate report -- as well as an interview with Judge Reinhardt at some point -- that said that Judge Reinhardt had never voted to affirm a death sentence.  Well, if that was ever true, it's not the case now.  Since Judge Reinhardt's on the panel, and the panel's final opinion affirms.  So Edward Schad will indeed be killed.  With Judge Reinhardt's assent.

Finally, the panel's final amendment is not, as you might expect, due to a change of heart.  But rather a result of a change in precedent.  The Supreme Court held in Cullen that when state courts have decided an issue on the merits, federal courts can't consider additional evidence on habeas.  So that's fatal -- literally -- to Schad.  Which is why the Supreme Court GVR'd the second opinion and sent in back to the Ninth Circuit, which then did what it did.

Technically, I'm not sure that this is the panel's "Third Amended Opinion."  Since the fact that the case went up to the Supreme Court, which then vacated the earlier result, means that this is actually the first opinion on remand.  So I'm not sure I'd style it this way.

Moreover, this may actually have doctrinal (and practical) significance.  The panel enters an order alongside the latest opinion by saying that no future petitions for rehearing or rehearing en banc may be filed.  I'm not sure that's proper.  This is a new opinion on remand.  Heck, it's a different result.  It's one thing to say that when you've made minor changes in an opinion, that doesn't restart the clock.  It's another to say that even when a case (1) goes up to the Supreme Court, (2) gets vacated, and (3) the panel changes the result of the case, no one's permitted to ask for rehearing.  You might, after all, have gotten the new result wrong.  And the judges who might want to ask for a rehearing en banc -- and who might be keenly interested in hearing a petition requested such relief -- are different judges than the ones who previously tried (but failed) to take the case en banc.  Since the sides are now flipped.

It's not that I don't understand the practicalities.  The Supreme Court GVR'd the case. The handwriting's on the wall.  Ed's going to die.  But I think that, procedurally, the case is in a different posture than what exists when an opinion is simply amended.  And the fact that we know that an en banc call (or request for panel rehearing) isn't going to be successful is not a sufficient reason to preclude such a request.  Since, after all, that's true 99% of the time anyway.

Woods v. Cary (9th Cir. - July 17, 2013)

Judge Reinhardt writes an opinion holding that a statute that caps recoverable prisoner attorney fees at 150% of a monetary judgment does not apply to attorney fees on appeal.  Judge Murguia dissents.

Judge Reinhardt articulates lots of persuasive policy reasons why the cap should not apply on appeal. I think he's right.

But I think that the Congress that passed the statute would disagree.  And would be less nuanced than Judge Reinhardt in its distaste for lawsuits brought by prisoners.

I think that's also true of the Supreme Court.  Which I could easily see stepping in with an old-style summary per curium disposition that is the final word on this circuit split.  Putting -- for some of the justices -- Judge Reinhardt in his place.  Again.

That's a descriptive, not normative, judgment.  We'll see where this one goes.

Oshodi v. Holder (9th Cir. - Aug. 27, 2013)

Judge Reinhardt writes an immigration decision that Judge Rawlinson doesn't like.  So the latter files an opinion that "distinguishes" the former.

The distinction isn't solid, so even outsiders like me say that Judge Rawlinson's opinion needs to be taken en banc.  Regardless of which of the opinions is correct on the merits.  A majority of judges on the Ninth Circuit agree.

This morning we learn who prevails.

It's Judge Reinhardt.  8 to 3.

Both Reinhardt and Rawlinson get picked for the en banc panel, so you know how they come out.  Judge Paez authors the majority opinion.  Joined by some largely predictable votes, including Judge Reinhardt, but also by some much less predictable votes (e.g., Milan Smith).

Judge Kozinski authors the dissent.  Joined by Judges Rawlinson and Bybee.

It's a relatively good draw for the immigration petitioner.  Ends up not even being all that close.