Friday, October 23, 2020

People v. Foley (Cal. Ct. App. - Oct. 23, 2020)

Jeffrey Foley is the grandfather of identical twins.  He molests one of them, who immediately reports it, and he's tried and convicted and sentenced to three years in prison.

After that conviction, approximately two years later, the other identical twin reported that she too had been molested by her grandfather.  He's tried and convicted again and is sentenced to 60 years in prison.

It seems at least a bit anomalous that you get 3 years in prison if you've molested one person but 60 years if you've molested two.  In the normal circumstance, you'd generally think that such sentences would meet somewhere in the middle; either a longer sentence for the one molestation or a shorter sentence for two molestations.

I get that you want to punish repeated molesters more.  And, for good reason, criminal sentences aren't necessarily linear:  two offenses don't get you exactly twice the sentence.

Still, 3 and 60 is quite a gap.

Thursday, October 22, 2020

U.S. v. Alhaggagi (9th Cir. - Oct. 22, 2020)

Both the majority and the dissent agree that Amer Alhaggagi is a messed-up kid.  They just disagree over the nature of the mess.

Judge Smith thinks he's a braggart 21-year old online troll.  He was born in Lodi, California to Yemeni immigrants, but after 9/11 his mother moved him and his five siblings to Yemen, while his father stayed in the United States.  Leaving Alhaggagi shuttled between Yemen and California.  "In both places, Alhaggagi had a strained relationship with his parents, who raised their children in an observant Muslim household. In 2009, Alhaggagi and his mother and siblings returned to California to live with his father. Although he was raised in a Muslim home, Alhaggagi was not religious and adhered to few religious traditions. As an escape from his home life, Alhaggagi began spending a lot of time on the Internet, where his father had no insight into his activities. He developed a sarcastic and antagonistic persona online, provoking people by comments he made on YouTube videos. . . . He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat."

Eventually, Alhaggagi gets noticed by the FBI.  The big difference between the majority's conception and the dissent's characterization of his conduct is an underlying dispute about whether what Alhaggagi was serious when he said and did what he did.  Judge Smith essentially thinks that Alhaggagi was "all talk" and was just continuing to be the online jerk he usually was -- just out to outrage people and play the "big man."  Whereas Judge Hurwitz thinks, no, that's not really what he was doing, he was serious and genuinely interested in terrorism and terrorist attacks.

Maybe the most obvious -- and interesting -- difference between the majority and dissent is in how they treat how Alhaggagi eventually ends up.  Here's how Judge Smith describes what happened:

"On a third occasion, the UCE [undercover informant] met again with Alhaggagi at the storage locker, where the FBI had left several barrels of mock explosives. In the moment, Alhaggagi expressed excitement upon seeing the explosives, and on the drive back, he pointed out places he believed would be good targets for bombs. After that meeting, however, Alhaggagi began distancing himself from the CHS on Telegram and the UCE. He told the district court that upon seeing the explosives, “it only hit me at that moment that I’ve been talking to these people for far too long and had no idea what I’ve gotten myself into and now I’m kinda freaked out . . . I never took it seriously and I never realized how serious he was until he was ready to make a bomb (so I believed at the time) which I wanted no part of!"

From late August to September 2016, Alhaggagi skipped meetings intended to practice the attacks with the UCE, and ignored many attempts by the UCE to contact him. On September 23, 2016, the UCE approached Alhaggagi on the street and asked if they could share a meal. Alhaggagi agreed, but said he needed to get something from his house first. He never returned to meet the UCE, and they never communicated with each other again."

This is consistent with Judge Smith's perception of the situation:  Alhaggagi was a braggart and troll, but when he actually realized that things were serious and real, he predictably slinked away.

Whereas Judge Hurwitz's view is starkly different.  His description of what happened is contained in a single sentence, which says:  "Alhaggagi broke off contact with the undercover agent and the FBI source in mid-August 2016 after concluding that the undercover agent worked for the government."

That's a very different conception of what went down.  Consistent with their competing views about Alhaggagi's personality and intent.

The district court sentenced Alhaggagi to over 15 years in prison.  Most of that comes from a "terrorism enhancement."  Judge Hurwitz thinks that's fine.  The majority remands to have the district court give it another shot.

Parenthetically, I did not realize that one of the biggest-impact ways in which the Sentencing Guidelines treat terrorism offenses is by manipulating the defendant's criminal history (an issue that's relegated to a brief footnote of the opinion).  Here, Alhaggagi in fact has no real criminal history, so is at Category I.  But Section 3A1.4 of the Guidelines says that for any terrorism offenses, you not only increase the base level of the offense to 32 (which is often a huge increase), but also artificially increase the defendant's criminal history to the worst possible level (Category VI).

That seems weird to me.  Seems to me like we should care about someone's actual criminal history, not one that's deliberately fake.  If you want to increase the punishment, fine, go ahead and increase the base offense level for the offense (which the Guidelines already do), and if that's still not good enough for you, increase it some more.  Pretending that the person has had a lifelong series of serious criminal convictions when he is, in fact, a 21-year old kid with no prior criminal history just seems to me very much the wrong way to go about it.    

Wednesday, October 21, 2020

People v. Wilson (Cal. Ct. App. - Oct. 21, 2020)

Don't send kiddie porn over gmail.  Google looks for it.

It's a fairly chilling case from San Diego about how various women get "groomed" into participating in child pornography.  The person who groomed 'em gets 45 years to life; I very strongly suspect he'll die in prison (and, given the typical treatment of these offenders in prison, that his experience there will not be pleasant in the slightest).  The actual woman who engaged in the sex offenses with the child is sentenced to . . . 10 years of probation.

Every little step along the way, I'm sure, seemed just a tiny bit "worse" than the last step.  Yet there you are at the end, sexually abusing a child and taking pictures of it.


Guerrero v. Hestin (Cal. Ct. App. - Oct. 21, 2020)

"In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation. The next year, that same judge and one other authorized 640 wiretaps, the rest of the state authorized 505, and the 640 wiretaps comprised roughly 15 percent of all wiretaps in the country."


Like the Court of Appeal, that facially seems to me to indicate that something might well have been wrong with the way those wiretaps were submitted and approved.

Very wrong.

Tuesday, October 20, 2020

Ortega-Lopez v. Barr (9th Cir. - Oct. 20, 2020)

What a difference the panel makes.

Agustin Ortega-Lynch gets caught helping to organize a cockfight, and the United States wants to deport him to Mexico as a result.  The dispositive question is whether aiding and abetting a cockfight is a "crime involving moral turpitude" ("CIMT").  His case comes up to the Ninth Circuit in 2016, and in an opinion written by Judge Owens, here's what the Ninth Circuit had to say:

"Ortega-Lopez came to the United States without permission in 1992. He has three children who are United States citizens. In 2008, Ortega-Lopez pled guilty to one misdemeanor count of cockfighting. He was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government’s sentencing position detailed: “his involvement in the overall crime was relatively minor compared to” the other defendants in the case. His punishment—one year of probation with no jail time—reflected his limited culpability. He has no other convictions. . . .

Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that. Yet that is not our inquiry here—rather, we must determine whether the conviction at issue is a CIMT. In answering this question, the government urges us to hold that cockfighting is a vile and depraved practice, which in its view ends the story. It does not. . . .

'[N]on-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.' [Cite] . . . . [T]he crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs."

Despite this language (and view on "first impression"), the panel elects to remand the case to the BIA to allow it a chance to explore whether aiding and abetting cockfighting is indeed a CIMT.

On remand, the BIA holds to its conclusion that it is.  Hence back up to the Ninth Circuit it goes.

Normally, you'd expect the same panel to hear the (renewed) appeal.  But that doesn't happen here.  The case instead goes to an entirely new panel.  (I'm not sure why.  Maybe the old panel didn't want to keep the case.  Maybe none of the parties asked 'em to do so.  Regardless:  new panel.)

Once it's back in front of the Ninth Circuit and in front of a new panel, Judge Owens isn't writing the opinion any more (nor is he on the panel).  The author of the opinion is instead Judge Ikuta.

And to say that her approach to the issue is different than Judge Owens is an understatement.

Here's what the new panel says:

"[T]he BIA determined that “knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.” . . . The BIA reiterated that animal fighting entails extreme suffering (and sometimes death) of the animals involved, and gave examples of the brutal manner in which such animal fighting events were conducted. The BIA reasoned that “the exhibition and celebration of suffering in animal fighting events” was “contrary to basic standards of decency and humanity” and “debased and brutalized the citizenry who flocked to witness such spectacles.” . . .

[T]he BIA explained that the immorality of the conduct stemmed from its infliction of suffering on sentient beings, so it applied to animals involved in cockfighting, as well as domesticated animals. [Cite] The BIA distinguished this conduct from other practices, such as hunting and food production, that are “inevitably harmful to animals” but are “necessary or acceptable to accomplish the underlying utilitarian objective.” [Cite] The BIA also acknowledged that some jurisdictions in the United States do not criminalize cockfighting, but did not give this fact any weight. . . .

We conclude that the BIA has provided a well-reasoned basis for determining that “knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.” . . . Accordingly, we conclude that a conviction under § 2156(a)(1) is categorically a crime involving moral turpitude."

So the new panel deports Mr. Ortega-Lopez to Mexico.

Monday, October 19, 2020

People v. Hendrix (Cal. Ct. App. - Oct. 19, 2020)

In one way, it's a routine offense:  burglary.  But in many ways, it's a strange couple of crimes.  There's clearly something about Mr. Hendrix that is . . . off.

The first crime is at a Costco.  "Appellant was stopped by a Costco employee after he tried to enter the Oxnard store without a membership card. He said his mother was inside and asked to be escorted to her. The employee went with him as he walked through the store, supposedly looking for his mother. When they reached the alcohol section, appellant put a bottle of tequila into his shorts. He left the store with the bottle in his shorts and without paying for it. When confronted, appellant threatened to harm the Costco employee. He was arrested for robbery."

Uh, yeah.  That's not the greatest criminal plan in the universe.  Why it's not easier to attempt to shoplift at a 7-11, or liquor store, or Rite-Aid, is unclear to me.

There's clearly something "off" to the court as well.  "In October 2017, appellant’s attorney declared a doubt as to his competency to stand trial. After evaluation, he was committed to the Department of State Hospitals for treatment. In August 2018, appellant was found competent. He pleaded guilty to one count of second degree robbery. On September 24, 2018, the trial court granted appellant 36 months’ formal probation on the condition that he serve one year in county jail with credit for time served. He was then released from custody."

Fair enough.

The second crime is also a bit bizarre.

"At 7 a.m. on October 28, 2018, appellant knocked loudly on the front door and rang the doorbell of a house on Indiana Drive in Oxnard. Artrose Tuano, who lived in the house with his parents was at home and watched the video being recorded by his home security system. He saw appellant walk through a side gate and into the back yard. Appellant tried to open a side door that led to the garage. He also opened a screen door and then tried to force open a sliding glass door leading into the house. When he could not get in the house, appellant sat down on a bench in the backyard. Tuano called the police. Police officers arrived and found appellant sitting in the backyard."

Knocking loudly on random doors at 7:00 a.m. and then just sitting there when he can't get in?  Weird, no?

The court sentences Mr. Hendrix to ten years in prison.  That's a lot.  A huge lot.  The Court of Appeal declares that's not cruel and unusual punishment.  That conclusion isn't surprising at all given the lax doctrinal standards we have for that inquiry.

Still, a decade in prison for weirdly knocking on a door at 7 a.m., trying to get inside, and then sitting on a bench in the back yard when you're unsuccessful?  Wow.  I know it keeps a strange guy off the streets.  But that's really the best our society can do?

Guess so.

Justice Tangeman authors a brief dissent, some of which highlights the weirdness of the present offense.  He says:

"Appellant has a history of mental illness. Indeed, he was found not competent to stand trial in a prior case and was committed to the Department of State Hospitals for almost one full year for mental health treatment. He was released from that commitment only two months before this incident occurred. This is not an insignificant fact, although it is glossed over in the majority opinion.

Moreover, the underlying facts of this case readily show that appellant was not of ‘sound mind’ on October 28, 2018. After loudly knocking and ringing the doorbell, appellant walked around the house, tried to force open a door and, when unsuccessful, simply sat down in the backyard, and waited. Waited for what? His cousin? Or, as the majority apparently posits, for the police to arrive to arrest him (which conclusion is inconsistent with his surprise at seeing the police). He had no burglary tools when arrested and made no further efforts to enter the house. He simply sat down and waited."

Yep.  Not your usual offense.  Or offender.

But he'll still be spending a decade in prison.

Friday, October 16, 2020

People v. Villa (Cal. Ct. App. - Oct. 16, 2020)

Defendant Villa is 28 and his girlfriend (and the mother of his child) is 18.

"While driving with his girlfriend, Jane Doe, and their infant child, Dagoberto Shoreque Villa, who was heavily intoxicated, began punching Doe and pulling out her hair in a fit of jealousy. When a police officer pulled them over after seeing him run a red light, he found Doe injured and bleeding and asked Villa to exit the vehicle. Villa identified himself using a false driver’s license and resisted taking a blood alcohol test. Later, Doe accused Villa of having previously beat her with a belt buckle and threatening to have her deported if she disclosed the abuse. Villa denied these last charges but said he didn’t remember the events on the night of the drunken driving."

That's not a good fact pattern for Mr. Villa.  At all.  And the fact that his blood alcohol content was around .20 at the time doesn't help things either.  "A jury convicted Villa of inflicting corporal injury, child endangerment, driving under the influence of alcohol, driving with a blood alcohol content of .08 percent or more, falsely identifying himself to a police officer, giving false information to a police officer, and intimidating a victim."

The Court of Appeal affirms his conviction.

You can definitely quibble with at least parts of Justice Slough's opinion.  She concludes that the trial judge properly prevented the defense from introducing the fact that the victim (who was an unauthorized alien) received a U-visa available only to victims of domestic violence, which -- as the opinion concedes -- might have given her a potential interest in making up (or at least sticking) to her story.  There's lots in that analysis that's credible, particularly since the standard here is abuse of discretion.

At the same time, there are at least a couple of points that are perhaps less persuasive than others.  For example, like the trial court, the Court of Appeal concludes that the issue of the U-visa would have "taken up a lot of time" and required various testimony.  True enough.  But the defendant's facing -- and ultimately gets sentenced to -- a decade in prison for his crimes.  I'm not sure that devoting several hours (or even a day or two) to what's perhaps his best (only?) defense is "too much time" given that exposure, or that we should be looking to rush through things like this.  (It's true that the victim testified that she didn't learn about the U-visa program until after her initial testimony at the preliminary hearing, which is indeed a huge problem with the defense, but a jury need not take her word for that fact -- just as they need not necessarily take her word about the underlying domestic violence.)

Similarly, the Court of Appeal notes that there was indeed a difference in the testimony that she gave in the preliminary hearing and the testimony she gave at trial, since only at the the latter did she testify that Mr. Villa put the child on the center console of the vehicle while driving drunk.  Personally, I think Justice Slough may be right that this might have been a relatively tiny "detail" about which the jury may not have cared (or that the victim was simply "clarifying" at trial).  (Justice Slough says "[T]hat’s just a detail, not a material change to her testimony.")  But when the opinion says that this fact wasn't especially relevant because "it’s a detail about his treatment of the child, not about his abuse of Doe," I'm not particularly persuaded -- if only because the majority of Mr. Villa's sentence (6 of the 10 years) was for the child endangerment conviction.  It's true you don't get a U-visa for endangerment charges, but still, a jury might find the (alleged) change of story relevant and material.

Again, the standard is abuse of discretion, so you're going to have a hard time arguing that a trial court made the wrong "403" call on relevance versus prejudice.  But at the same time, I'm not a huge fan of the "letting the defendant assert a defense to try to avoid a decade in prison will take too much of our valuable time" argument.  On a minor defense without much value, yeah, maybe.  And I can see such an argument here.   We just want to be especially careful that we're weighing the competing values -- trial efficiency versus not incarcerating an innocent person -- with their appropriate respective weights.

Wednesday, October 14, 2020

People v. Zorich (Cal. Ct. App. - Oct. 13, 2020)

David Zorich is eligible for potential resentencing if the vehicle he stole in 1997 was worth $525 or less.  That vehicle was (accordingly to the police report) a 1979 AMC Concord with 105,352 miles on it and that was in "fair" condition.

What do you think someone would have paid in 1997 for a 17-year old AMC Concord with 100,000+ miles on it?

Mr. Zorich's lawyers submit an estimate from Kelly Bluebook:  it says that vehicle's worth $500.  The prosecution responds with . . . essentially nothing.  Just a form that checked a box that asserted (without any evidence whatsoever) that the vehicle was worth $1000.  Then the prosecution didn't even show up at the hearing.

The Court of Appeal says -- quite rightly -- that the uncontradicted evidence submitted by Mr. Zorich was good enough to prove the vehicle was worth $525 or less.

(Justice Moore says that even though the vehicle's odometer read "5,352," it almost certainly had "rolled over" and really represented 105,352 miles since it'd be super unusual for a 17-year old car in only "fair" condition to actually have only 5,352 miles on it.  Totally right.  Though I think that Justice Moore might actually be understating the number miles on the vehicle.  My bet is that the vehicle has probably rolled over twice at this point.  It's 17 years old.  If it's driven 12,000 miles a year -- which is around normal -- that's 204,000 miles.  Pretty much spot on the actual number of miles on the vehicle (205,000) if it has rolled over twice.  Indeed, the actual number of miles driven per year, according to the Department of Transportation is even larger than this, and is around 13,500.  So my guess is that the vehicle is actually worth less than the $500 that the defense postulates, since a car with 200,000 miles on it is worth a fair piece less than one with 100,000 miles on it.)

The other funny thing about this case is the discrepancy between the resources devoted to the case in the trial court and the resources devoted to it on appeal.  Below, the prosecution doesn't bother to do anything other than check a box; it offers no evidence, doesn't submit a brief, doesn't bother to argue against defendant's evidence, and doesn't even bother to show up at the hearing.  (Mind you, it still wins, which might tell you something.)  Yet, on appeal, we appoint a lawyer for defendant, have him file an appeal, have the Attorney General file a full brief, etc.  (All for naught, I might add.)

Given that you know that a criminal defendant has a right to appeal, maybe the prosecution putting in a little more effort below might make rational sense.  Since, as here, it might make those cost "savings" arising out of not doing anything at all in the trial court essentially meaningless.

The long and short of it:  A 17-year old vehicle that runs but that has over 100,000 (or even 200,000) miles on it ain't worth much at all.

Monday, October 12, 2020

People v. Barber (Cal. Ct. App. - Oct. 9, 2020)

When I read opinions, I sometime think:  "There but for the grace of God go I."  Or at least I try to think that.  Whether as a victim or perpetrator or judge, I think it's healthy to remember that participants in both the criminal and civil justice system are always people.  Real people.  With flaws and imperfections and good days and bad days; with dreams, hopes and struggles.

So, yeah, a lot of times we see them at their worst.  Few people probably grow up thinking:  "For sure, I definitely want to be in a published opinion in the Ninth Circuit or the California Court of Appeal.  That's what I want my life to become."  Yet there they are.

Could have been me.  Again:  as a victim, or perpetrator, or lawyer, or judge, or police officer, or whatever.  The path my life actually took was far from predetermined.  I could see myself in any of these roles.  (Though, obviously, would infinitely prefer some roles to others, and at least hope that certain roles -- e.g., as a mass murderer in a death penalty case -- would be extraordinarily unlikely.)

I mention all this because I could definitely see myself in this opinion.

It all happens on Carlsbad Boulevard in Carlsbad, California.  A stretch of two-lane road that fronts the beach in a community in north San Diego County.  It's a beautiful place, with gorgeous beaches.  As accurately described by the Court of Appeal,  "the north and southbound lanes are separated by a wide landscaped median. The southbound lanes run closest to the beach, and, just south of the intersection, there is a dirt parking lot, which abuts the bike lane. The area is a corridor for surfers and beachgoers to get to the beach."

Absolutely right.  Have been there numerous times.  Driving or biking along the highway, parking and going to the beach, walking on the adjoining sidewalk, crossing the street. etc.  Have definitely done it all there.

I'm sure the same was true for Michael Barber.  He lived fairly close to the beach, in a neighboring community, so I'm sure that his particular day at the beach on March 8, 2018 wouldn't ordinarily have been that memorable.

Except it was.

"Barber is a retirement planner for teachers and seniors and has a 15- year-old son. On the day of the incident, Barber picked up his son from school at 2:45 p.m. and dropped him off at an athletic training class at 4:00 p.m. The class lasted for an hour."  So Mr. Barber had an hour to kill.  Why not go for a run on the adjacent beach?  Awesome.

"On March 5, 2018, Barber parked his car in the dirt lot just south of the intersection of Carlsbad Boulevard and Avenida Encinas and went for a run. Afterward, he needed to pick up his son. To do so, he wanted to go east on Avenida Encinas, which from the parking lot he could not directly access because it was north of his car, and the lanes abutting the parking lot only went southbound."

Okay, so that's a bit of a hassle.  Mr. Barber could have gone southbound, made a U-turn, and then taken a right on Avenida Encinas.

But he was so close to the intersection.  He'd of parked just a little bit more towards the north side of the street, he could access Avenia Encinas right from the parking lot.

And there's room.  The path looks pretty clear in the short path northward.  So "Barber looked for pedestrians and did not see any. He checked his mirrors before he started driving. Barber got into his car and backed up, looking over his shoulder as he drove. Barber estimated that he was going 15 miles per hour as he backed up."

I'm sure that happens repeatedly.  Maybe you've done the same thing -- or something similar -- on occasion.  Maybe not.  Regardless, it happens.  I've seen it happen.  Ninety nine percent of the time, it works out okay.  Perhaps not the smartest thing to do, to be sure.  But trust me:  It happens.  Especially in settings like this one.

Of course, you already know that since the case results in a published opinion, things most definitely did not work out okay here.

"Rather than continuing southbound on Carlsbad Boulevard, making a U-turn, and accessing Avenida Encinas from northbound Carlsbad Boulevard, Barber put his car in reverse and drove northbound backward in the bike lane against the flow of traffic on southbound Carlsbad Boulevard. He had hoped to enter the traffic lanes and make a left turn onto Avenida Encinas. When he looked behind, he did not see any cars, bikes, or pedestrians. . . . 

Around that same time, S.H. had been walking along Avenida Encinas and was preparing to cross the intersection at southbound Carlsbad Boulevard. When the light was red for southbound traffic, S.H. proceeded into the crosswalk at the intersection. A motorist who was stopped at the red light saw Barber speeding toward S.H. as she continued through the crosswalk; so, the motorist honked her horn. The honking did not stop Barber from colliding into S.H. as she entered the bike lane area of the crosswalk. The impact of the collision threw S.H. about 10 feet away. Barber felt the impact and looked in the rearview mirror to see a pedestrian bounce off the back of his car. He stopped the car, got out, and saw a woman lying on the ground.

A lifeguard and an off-duty paramedic were in the vicinity when the collision occurred and rendered aid. S.H. was struggling to breathe, coughing up blood, and bleeding profusely from her mouth, nose, ears, and scalp. She displayed symptoms of severe traumatic brain injury.

Barber remained on the scene. He was cooperative, forthright, and very upset about what had happened. A test at the scene revealed that Barber had no alcohol in his system. The rear left area of Barber’s car was dented where he hit S.H.

An ambulance arrived and transported S.H. to the hospital. Upon admission to the hospital, it was discovered that S.H. suffered from traumatic brain injury, which included hemorrhages in the brain and skull fractures. As a result of the brain injury, she had difficulty breathing on her own. Given S.H.’s inability to perform simple tasks, her brain injury was considered severe. In addition to her brain injury, her collarbone, shoulder blade, and three bones in her back were fractured. Once S.H.’s acute symptoms were treated, she was referred to a rehabilitation facility. She had no memory from the day of the collision until she was in the ambulance on the way to the rehabilitation center. As a result of her injuries, she suffered severe memory loss, loss of language, and ongoing physical issues, which continued to require additional surgeries."

Oh my.

Now, you may think that the case involves a civil lawsuit against Mr. Barber.  Which I'm sure indeed happened.  But notice that the caption is "People v. Barber."  This one is instead the criminal case.  It's not that Mr. Barber was intoxicated or driving under the influence.  He wasn't.  But he was nonetheless charged with felony reckless driving with great bodily injury.  For which he gets convicted.  Hence the appeal.

Just like Mr. Barber got convicted at trial, so too does he lose in the Court of Appeal.  He claims that there were jury instruction problems as well as improper enhancements (e.g., the great bodily injury), but the Court of Appeal disagrees.

Which is not surprising.  At least not given the circumstances here.  The victim, S.H., was seriously injured.  All as the result of what I think (and hope) that we all would recognize as an incredibly stupid and unwise decision by Mr. Barber.  And, yes, I might well be sympathetic to his plight if he received, say, seven years in prison as a result of the accident.  Sure, he did something stupid and reckless, and the life of S.H. will never be the same.  But a lengthy prison sentence for someone who does something like this, with no criminal history whatsoever, would (I readily admit) tug upon my heartstrings a bit.  "There but for the grace of God" and all.

But here's the thing:  Mr. Barber gets sentenced to . . . three years of probation.

Dude!  If that's all the punishment you received, thank your lucky stars you didn't get more.  Why the heck are you filing an appeal?!  Yes, yes, I know; it's a felony conviction, and that doesn't look good on anyone's record (for employment or otherwise).  Still.  You totally nailed someone with your car while backing up on a busy street and seriously hurt her.  That's a setting in which I'd personally be very much inclined to take my lumps and call it a day.  Or at least I hope I would.  Because, jeeze, I know it might seem weird to be affirmatively grateful for a felony conviction, but if I got probation in a setting like this, that'd be exactly how I'd feel.  Lucky.  Definitely luckier than my victim.  And I'd make every last effort in my heart and soul to avoid doing anything like this ever again.

And definitely wouldn't file an appeal.

Nor is the Court of Appeal especially sympathetic to Mr. Barber.  Here's what Justice Huffman says about his decision.  In words that pretty much ring true:

"The case before us presents a very egregious set of facts that clearly establish reckless driving in any event. Barber backed out of a parking lot in an area he knew could be crowded with bikers and pedestrians. When he backed out of the parking lot, he then proceeded to drive in reverse in the bike lane traveling in the opposite direction of oncoming traffic. He testified that he decided to drive in reverse, against traffic, because the bike lane was big enough to accommodate his car. Barber further insisted that he would not have decided to travel in reverse, against traffic if the bike lane was narrower and his car would not have fit. Thus, it appears Barber knew traveling the wrong way in a bike lane could be dangerous, but based his evaluation of danger on whether his car would fit in the lane, apparently not considering that bicyclists and joggers could use the bike lane in a busy pedestrian area near the beach. In fact, Barber admitted that “lots of people” go jogging, biking, and travel to the beach in the area he was driving through.

He drove in this dangerous fashion for a substantial distance, from the lot, on the street, through a crosswalk, a busy intersection, and another crosswalk. Although Barber tried to look behind him as he drove against traffic, he admitted he was aware that his car had blind spots and he could not see everything while traveling in reverse.

As Barber proceeded through the intersection, he was not sure if the light was red at Carlsbad Boulevard, but he saw a car stopped at the light and knew it was dangerous to drive through a crosswalk when pedestrians had the right of way. However, without knowing who had the right of way, he crossed through the crosswalk. When he collided with the victim while driving in reverse, he hit her with such force that the car was dented and caused her to fly 10 feet away, producing catastrophic injuries.

Simply put, Barber engaged in this incredibly dangerous course of action to avoid going an extra three quarters of a mile away to make a Uturn, which would have placed him on the right side of the road to turn onto Avenida Encinas. We cannot contemplate how any reasonable juror would not find Barber intentionally drove with wanton disregard for the safety of other people."

Yep.  That pretty much sums it up.

Thursday, October 08, 2020

Robin v. Crowell (Cal. Ct. App. - Oct. 8, 2020)

I wasn't overly interested in this opinion for the underlying legal doctrine, which involves the relevant limitations period for judicial foreclosures and undisclosed deeds of trust.  But I was interested in the identity and roles of at least some of the participants.

Steve and Marta Weinstein owned some vacant land and got a $450,000 loan from Cathleen Robin and Michael Fontes, and in return, Ms. Robin and Mr. Fontes secured the loan with a deed of trust on one of the Weinsteins' parcels.  But Al Crowell had previously loaned the Weinsteins $250,000 and had a deed of trust, so that'd be senior.  But the Weinsteins told Ms. Robin and Mr. Fontes that this was a "mistake" and got Mr. Crowell to execute a partial (but not complete) reconveyance.  Then the Weinsteins and Crowell -- without the knowledge of Robin or Fontes -- record a second deed of trust that secured Crowell's old loan.

Eventually, Ms. Robin judicially forecloses on the property, and obtains it via a credit bid, but Crowell's not named in the lawsuit.  Thereafter, Crowell and Robin litigate against each other, with Crowell saying that he's got an interest in the property and Robin saying that he doesn't.

Ms. Robin wins in the trial court, but Mr. Crowell prevails in the Court of Appeal.

The interesting thing (to me) is that Mr. Crowell represents himself on appeal.  That doesn't usually happen in cases like this one, which involves complicated legal doctrine.  Or at least typically doesn't happen successfully.

So I looked up to see whether "Al Crowell" was an attorney.  ('Cause sometimes these people are able to successfully represent themselves.)  Yes, there's an "Alton Crowell" who's an attorney (albeit inactive).  That could potentially be the "Al" Crowell in the opinion.  But Alton is in Laguna Beach, the litigation here is in Tuolumne County, and the "Al Crowell" who's listed on the docket in the Court of Appeal is in on Clipper Street in San Francisco.  Doesn't seem like a match.

Plus I then look at the respondent's brief, available on Westlaw.  Apparently "Al Crowell" is actually "Alois Crowell."  So not Alton, for sure.  So how does Alois write a sufficiently good brief to prevail?

I'm able to find Alois in San Francisco -- or at least think I do -- who lists himself as retired and the vice president of the "U.S. Alliance to End the Hitting of Children."  Fair enough.  Not exactly a background full of legal expertise, but apparently someone with enough time and interest to write a brief to try to ensure that he gets repaid for a loan that he long ago made to the Weinsteins.


I must say that, having read the respondent's brief, I can see why the trial court might have ruled as it did.  If only because of the "equities" given the respective situations of the parties (e.g., Crowell, the Weinsteins, and Robin).  That said, I wasn't able to read the opening and reply briefs, and don't really have strong opinions on the legal principles on which the Court of Appeal relies.

Regardless, a retired non-attorney represents himself and prevails in a California appeal that results in a published opinion about the limitations period for judicial foreclosure suits.  That's something you don't see every day.

Wednesday, October 07, 2020

In re Butler (Cal. Ct. App. - Oct. 7, 2020)

We rightly get irate at countries in which people are sometimes held without trial for years.  That's not right.  It's not due process.

But check out this case.  Not in some totalitarian foreign country.  But right here in America.  Indeed, in California.

Terrence Butler gets convicted of rape in 1993.  He's sentenced to 18 years in prison.  He serves his time.

But in 2006, the government seeks to continue to institutionalize him as a "sexually violent predator" (SVP).  That's permitted by law (though some people believe it pushes the envelope, or even crosses it).  At least he'll get a trial in which the accusation that he's mentally ill is tested in court before he continues to be deprived of his liberty.

At least in theory.

"Despite numerous demands from Butler that he receive a trial as soon as possible and explicit direction to the Alameda County Public Defender’s office that it was not authorized to waive time on his behalf, no trial was ever held. Butler was confined to a state hospital for 13 years awaiting trial on his SVP petition, during which time eight public defenders and six prosecutors cycled through his case, three trial dates were set and vacated, and more than 50 continuances were granted without a single objection raised by opposing counsel or a finding of good cause made by the trial court. There is no evidence that any of Butler’s public defenders ever consulted or retained a defense expert in this matter, and the prosecution never declared it was prepared to go to trial or insisted that a trial date be set. Indeed, after the trial court ordered a new probable cause hearing in May 2012, no such hearing was held, and Butler was detained for the next six years without a finding of probable cause."

So Mr. Butler remains institutionalized for 13 years with no trial.  The Court of Appeal says that's not okay.  Not here, and not anywhere.  

The Court of Appeal concludes:  "The record here amply supports the habeas court’s finding that blame for the delay must be shared between a district attorney’s office that abdicated its responsibility for prosecuting this case, a public defender’s office that disregarded Butler’s repeated demands for trial, and a trial court that took no meaningful action to set deadlines or otherwise ensure that Butler’s right to a timely trial was protected."

The state responds -- somewhat chillingly -- that individuals facing SVP charges have no right to a speedy trial at all.  In the opinion of the Alameda County District Attorney, people can be deprived of their liberty and institutionalized for 13 years without a trial and there's no legitimate complaint about such a result.

Thankfully, the Court of Appeal disagrees.

What happened to Mr. Butler wasn't simply the fault of prosecutors.  But it was the fault of the state writ large -- prosecutors, public defenders, and the trial court.  Ironically, the person who probably had the most accurate insight into what went down here was Mr. Butler, the one without any legal training whatsoever.  At one point, he said:  "It’s like they are breeding attorneys to basically pretty much treat cases like a relay race, just pass the baton every couple years, and they all requested to start over; they need an opportunity to review my case."  With all the changes in his assigned public defenders, that's a fairly accurate description of what transpired.  (Except, perhaps, for the "breeding" part.)

Unfortunate to see something like this go down.  But at least the judiciary (eventually) stepped in.

Tuesday, October 06, 2020

Doe v. Yim (Cal. Ct. App. - Oct. 6, 2020)

The relevant ethical rule says that a lawyer who's likely to be a witness can't represent a client "at trial."  But the Court of Appeal holds that, notwithstanding this text, the lawyer can also be disqualified from pretrial proceedings as well; i.e., completely disqualified.

The underlying case is definitely a messy one.  The lawyer is representing her adult daughter against her ex-husband claiming that he molested her during the early days of their 17-year marriage, whereas the husband claims that this is just a made-up charge to create leverage during a vituperative divorce.

The ex-wife/lawyer represents her daughter on appeal.  Interestingly, although that attorney lists her address with the State Bar (and on the docket sheet) as the address for Phillips Jessner (a family law firm in downtown L.A.), that lawyer doesn't appear on the firm's web site.  (To be clear:  I'm not saying she doesn't work there; the firm simply doesn't seem to have elected to put her on its list of attorneys, at least presently.)

Regardless, it's a holding to remember:  You can be DQ'd entirely if it's likely that you'll be a material witness at trial, at least in a situation like this.

Monday, October 05, 2020

Fipke v. California Horse Racing Board (Cal. Ct. App. - Oct. 5, 2020)

I can't say that I knew much about how jockeys get selected and paid in horses races before today.  But as a result of this opinion, I certainly now know a little more than I did an hour ago.

The facts of the case are undisputed.  It's just a question of what's legally allowed.

"Fipke is the owner of a thoroughbred racehorse named Forever Unbridled. The horse was scheduled to run in the Breeders’ Cup Distaff race on November 3, 2017, which carried a purse of $2 million. The draw for the race—which is the point when post positions are selected and jockey assignments finalized—was scheduled for October 30 at 5:00 p.m. Any jockey changes made after the draw must be approved by the race stewards.

The day before the draw, Forever Unbridled’s trainer entered the horse in the race and named Rosario as the jockey. This is referred to as giving Rosario “the call.” The next morning, Fipke told the trainer to remove Rosario as the jockey and instead name John Velazquez. Fipke thought Rosario had ridden one of his horses poorly in a prior race, and he was upset that Rosario was unwilling to ride some of his other horses. At Fipke’s direction, prior to the draw, the trainer removed Rosario as the jockey and named Velazquez instead."

Rosario complained, Fipke stood his ground, and Forever Unbridled subsequently won the race, which resulted in Velazquez earning a $110,000 riding fee. But the racing stewards then decided that Rosario was also entitled to $110,000 (a "double jockey fee") for being removed.  At which point administrative proceedings and, ultimately, litigation commenced.

At the end of the day (today), Fipke wins.  The Court of Appeal holds that the statute doesn't allow racing stewards to award double jockey fees unless the jockey is replaced after the "scratch" time, which is after the "draw" (and after Rosario was replaced here).  So Fipke gets to keep his $110,000 and Rosario loses it.

Tiny win for Fipke (who's got more money than he knows what to do with) and corresponding huge loss for Rosario.  I suspect that Fipke may have spent more money on lawyers than the $110,000 at stake in the matter.  But when you're rich, you can do that.  Matters of principle (or spite), you know.

Friday, October 02, 2020

People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020)

Here's some evidence that the law has gotten marginally more rational over the last hundred years.

Bail is set for a particular criminal defendant at $220,000, but due to a miscommunication, officers at the jail had it listed as $120,000.  So a bail company posts a bail bond for that latter amount, and defendant thereafter failed to show up.  To avoid forfeiture of the bond, the bail company insists that the bond is "void" because it was for the wrong amount, citing a Court of Appeal case from 1919 that so holds (albeit arguably in dicta).

Justice Stewart holds -- eminently sensibly, in my view -- that the bond isn't void.  The company knew it was bonding the guy out for $120,000.  It knew it would lose this amount if he didn't show up.  The bond isn't void.  Indeed, arguably, the bail company's lucky.  It'd have probably lost another $100,000 if the bond had been set in the right amount.

There's also a funny line in the opinion in which Justice Stewart says:  "In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."  That's definitely one way around Rule 8.1115, eh?!

Wednesday, September 30, 2020

U.S. v. Malik (9th Cir. - July 6, 2020)

This is a slightly older case that I read a little while back, but it came into my head as a result of a particular conversation I had earlier today.  The lesson is a simple one, and is this:

If you're driving a big rig and smuggling 135 pounds of cocaine and 114 pounds of methamphetamine therein, do yourself a favor:  Don't smoke a joint as well.  Because if you do, that'll just give the police probable cause to search the cab and discover all your contraband.

Save the weed for after the trip's over, okay?

Tuesday, September 29, 2020

Butler America LLC v. Aviation Assurance Co. (Cal. Ct. App. - Sept. 29, 2020)

Justice Gilbert starts this opinion by saying:  "Alter egos of a judgment debtor appeal an order amending the judgment to add them as judgment debtors. We affirm. A judgment debtor with an empty shell is easy to crack."

Which might well be true as a legal matter.  It's fairly easy to add an alter ego to a judgment when there are "empty shells" involved.

But, practically, getting actual money from the debtors remains -- if you'll pardon the analogy -- a tougher nut to crack.

Like here.  Sure, they successfully add the alter egos to the judgment.  But as far as I can tell, anyway, they still haven't gotten actual money.

Which is the part that actually matters.

But shell first, money later, I guess.

That's the theory, anyway.

Monday, September 28, 2020

Ford v. Peery (9th Cir. - Sept. 28, 2020)

"During closing argument, at the end of his rebuttal, the prosecutor told the jury that the presumption of innocence no longer applied. He said:

'This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to crossexamine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.'

The defense attorney objected, 'That misstates the law.' The court overruled the objection. The prosecutor resumed, 'And so we’re past that point.'" (emphases in original).

Is it okay to make that argument?

Judge Fletcher (joined by Judge Molloy, sitting by designation from Montana) says "No."  Judge Ryan Nelson says "Yes."

The majority also holds that the error was not harmless, even though the California Court of Appeal had held (in an unpublished opinion) that it was.  Here's a brief rundown of whey the panel thought it was not harmless:

“The weight of the evidence” against Ford was not great. . . . the evidence was circumstantial, incomplete, and in conflict. While there was some inculpatory evidence (the partial palm print, the stolen cell phones, Ford’s conversation with his girlfriend, and Ford’s Facebook post), no one saw the shooting. Neither of the two witnesses who had seen three young black men on the street shortly before the shooting could identify Ford. The manner of shooting hypothesized by the prosecutor conflicted with his expert’s testimony the gun had been at least three feet away from Martinez when it was fired. The hypothesized manner of shooting was also inconsistent with Johnson’s testimony that she heard the sound of a shot and broken glass, and with the fact that passenger side, rather than driver side, windows were shattered.

The jury clearly had trouble with the evidence. After four days of deliberations, they reported to the court that they were “hopelessly deadlocked.” The court sent them back to deliberate further. When the jury returned, their answer was internally inconsistent. It was uncontested that Martinez had been killed with a single shot to the head. Ford had been charged with shooting and killing Martinez. The jury found Ford guilty of the murder charge. But the jury was split with a vote of seven to five on whether Ford had used a firearm in killing Martinez.

The “prominence” of the prosecutor’s statements, id., could hardly have been greater. During the course of his closing argument, the prosecutor had repeatedly said that the state had the burden of proof to show guilt beyond a reasonable doubt. But then, at the end of his rebuttal in his closing argument, the prosecutor stated three times that the presumption of innocence no longer applied. The prosecutor’s rebuttal was the last thing the jury heard from either of the attorneys. The jury retired to begin deliberations later that same day.

Although the prosecutor did not “misstate[] the evidence,” id., he misstated the law. He did so three times, in the space of a few moments."

Judge Ryan Nelson disagreed on this point as well.  He thought that any error -- assuming that one existed (which he thinks there wasn't) -- was harmless.

The California Court of Appeal is itself split on whether it's permissible to make this argument.  One case says it's fine, the other case says it's error.

After today's Ninth Circuit opinion on habeas, I suspect you'll be seeing a lot less of the claim at closing argument that the presumption of innocence no longer applies.

Friday, September 25, 2020

Tam v. City of Los Banos (9th Cir. - Sept. 25, 2020)

Chief Judge Thomas and Judge Friedland think that the jury properly found the police officer liable.  Judge Bennett disagrees.  Here are the facts.  See which side you think you'd be on:

"At the time of the incident, Tan Lam—then 80 years old—lived with his 42-year-old son, Sonny Lam, at Sonny’s home in Los Banos, California. Sonny had Type 2 diabetes and a history of mental health issues that included symptoms such as “hearing voices.” In the past, Sonny generally managed these mental health issues with medication, but he had stopped taking his medications, which caused his mental and physical health to deteriorate. At the time of this incident, Sonnywas 5’ 8”, weighed 136 pounds, and was very frail. In the afternoon of September 2, 2013, Sonny became agitated, swearing at and unsuccessfully attempting to hit Lam, so Lam drove to a neighbor’s house and asked her to call 911. . . .

Officer Jairo Acosta was dispatched to investigate the call as a possible assault, and he met Lam outside Sonny’s home. Lam told Acosta that Sonny had “lost his mind” before the two entered the home through the garage. When Lam and Acosta arrived outside Sonny’s bedroom, Acosta pushed open the bedroom door and found Sonny sitting at his desk, unarmed and wearing nothing but basketball shorts. Sonny immediately started yelling at Acosta and Lam to get out of the room. Acosta approached Sonny and grabbed Sonny’s shoulder to get Sonny to leave the room with him. Lam testified that when Sonny refused to leave his room, Acosta challenged Sonny, saying, “Beat me, beat me,” as Sonny yelled, “No, no, no” and made punching motions through the air. Sonny then stood up and began pushing Acosta out of his room, forcing both Lam and Acosta into the main hallway. Lam retreated down the hallway into the turning point so that he was behind Acosta and could no longer see Sonny. Acosta radioed dispatch with a non-urgent request for back-up. Sonny did not have any weapon in his hands at this point.

According to Acosta, Sonny then went to a desk drawer and grabbed what Acosta thought was a knife, but turned out to be a pair of scissors. Acosta testified that he then pulled out his gun and took a step back as Sonny approached him with the scissors, and that he told Sonny to drop the scissors. Lam testified he did not hear Acosta give a warning. Sonny stabbed Acosta in the left forearm with the scissors, and Acosta then shot Sonny in the right calf, with the bullet passing through his leg.

After Acosta fired the first shot, Lam ran to Acosta and asked him why he shot Sonny, and Acosta replied that Sonny had a knife. Lam testified that he could not see any weapon, but Acosta yelled, “Go back, go back.” Acosta retreated down the hall, and took the time to clear his handgun, which had jammed, using a “tap, rack[,] and roll” technique.

Acosta continued backing down the hallway so that Lam was behind him. When Acosta was positioned near the turn of the hallway, he fired the second shot at Sonny, who was still in the main hallway. It is undisputed that Acosta did not provide a warning to Sonny before firing the second shot. The second shot hit Sonny in the chest at a downward angle, and he fell to the ground.

Lam rushed to Sonny, who was lying face-up on the floor, bleeding and screaming. Backup arrived shortly thereafter, and Sonny was handcuffed before being placed on a stretcher and taken outside while Lam was told to wait in the living room. Officer Teresa Provencio was the first officer to arrive after the shooting, entering through the garage and walking past Sonny and down the hallway. She did not see any scissors or other weapon near Sonny, nor did Acosta warn her that Sonny had been armed or that he had stabbed Acosta with the scissors. Officer Christopher Borchardt was the next to arrive on-scene, and Acosta reported to Borchardt that Sonny had stabbed him with scissors, and Acosta revealed a small puncture wound on his forearm. Borchardt testified that he observed a pair of scissors under Sonny’s thigh, but the position of the scissors was never confirmed by photograph because Borchardt testified that he slid the scissors away from Sonny and that the scissors were then moved to a different room. Sonny was taken to the hospital, where he died during surgery."

The jury made the following specific factual findings:  "(1) Sonny stabbed Acosta with a pair of scissors; (2) Sonny did not grab Acosta’s gun prior to Acosta firing the first shot; (3) Acosta retreated from Sonny after firing the first shot; and (4) Sonny did not approach Acosta with scissors before Acosta fired his gun the second time."  There's definitely substantial evidence (in my view) to support those conclusions.  (For a flavor:  "Acosta gave inconsistent accounts of whether Sonny advanced on him with the scissors, and the jury was entitled to take those inconsistencies into consideration. At trial, Acosta gave two different versions of which hand Sonny used to hold the scissors. His officer-involved-shooting interview, conducted just a few hours after the event, contradicted his trial testimony. In addition, he told the interviewers that Sonny had dropped the scissors after the first shot. At trial, he testified that Sonny had never dropped the scissors. He told interviewers that Sonny had fallen to the ground after the first shot, but at trial he claimed Sonny did not fall after the first shot. At trial, he had difficulty remembering what he said to arriving officers or the sequence of events. In short, Acosta’s testimony was significantly impeached by his prior inconsistent statements and his inconsistent testimony at trial.")

Basically, a suspect stabs an officer with a pair of scissors, gets shot, drops the scissors, maybe moves a little bit down the hallway (without a weapon), and the officer takes time to clear his jammed weapon and, once it's cleared, shoots and kills the now-unarmed suspect.  Okay or not?

Pacific Choice Seafood Co. v. Ross (9th Cir. - Sept. 25, 2020)

Another routine Magnuson-Stevens Fishery Conservation and Management Act case involving a Pacific non-whiting groundfish fishery.  You see those every day.

The Act sets a quota, and no one can control more than 2.7 percent of that quota.  Pacific Choice controls more than that -- at least 3.8 percent.  So it's got to divest itself of some of the ships that catch these fish.

Pacific Choice doesn't like that.  So sues.

But everything that Judge Miller says in his opinion seems right to me.  Including but not limited to the final paragraph of the opinion:

"Crucially, we see no ambiguity about whether Pacific Choice “own[ed] or control[led]” the related entities at issue here. Pacific Choice’s brief discloses that each of the six entities that held quota share are wholly owned either by Frank Dulcich or by a corporation that Dulcich owns. Under any plausible definition of “control,” Dulcich controls the Pacific Choice entities. Because Pacific Choice is subject to the control rule even under its narrowest construction, we need not consider the rule’s outermost limits or whether, in some other case, the Service might abuse its discretion by applying the rule in a surprising or unforeseeable way. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”)."


Thursday, September 24, 2020

Torres v. Barr (9th Cir. - Sept. 24, 2020)

This one is not entirely unexpected.

A Ninth Circuit panel unanimously decided around a year ago that Catherine Torres (and people like here) were eligible to be deported from the Commonwealth of the Northern Marianas Islands. 

That wasn't surprising, since there was an on-point Ninth Circuit decision from a couple years back that expressly so held. Binding circuit precedent and all.

But a concurrence was filed arguing that this prior circuit precedent was wrongly decided. That concurrence was joined by . . . all three judges on the panel. 

That's meaningful. Even more meaningful when it's signed by not only Judges Berzon and Wardlaw, but also by Judge Bennett, Trump's first Ninth Circuit appointee. That suggests some bipartisan support. So, predictably, the case gets taken en banc.

You might well be thinking: "Well, the case they're thinking about overruling is only three years old, and was unanimous. Surely the judges on that case aren't going to vote to overrule it." And you could easily be right.

But the author of that opinion, Judge Bea, went senior last year. So he's not eligible for the en banc vote. Judge Hawkins, who joined the opinion, is also senior. And the third member of the panel, Judge Kozinski, resigned from the court the same year the original case was decided.

Leaving none of the original judges to support the thing.

So the en banc panel gets drawn, and it contains (not unexpectedly) a healthy mix of judges from all sides of the political aisle. But no matter. It's unanimous. The prior opinion gets overruled.


Wednesday, September 23, 2020

Chapin v. State Personnel Board (Cal. Ct. App. - Sept. 23, 2020)

Cheating on a firefighter promotion exam:  unusual.  (I would hope, anyway).

Finding out about this cheating only after the battalion chief was accused of . . . murdering his girlfriend.

Hopefully even more unusual.

Tuesday, September 22, 2020

People v. Redus (Cal. Ct. App. - Sept. 22, 2020)

It's always a no-win situation if you're a justice on the Court of Appeal and you've got to decide a case like this one.  It involves an elderly man -- 74 years old -- who's been involuntarily committed to a psychiatric hospital for nearly a half century, since 1975.  That's when he was found not guilty by reason of insanity for killing his wife. Since then, he's been committed, and the government wants to keep him there, now and (presumably) forever.

It'd be an easy case if he was still completely crazy; if he was assaulting people, or throwing things, or refusing to take his medication, etc.  But none of that's true.  Zero violence.  Zero refusals.  He's simply a guy trying to make the best of a totally bad situation.  For the past 45 years.

Is he completely "normal"?  Of course not.  Let's see how even the most sane person would be after being locked up in a mental hospital for 45 years.  He doesn't really think he should be there.  He's got a theory that he's locked up due to some sort of "conspiracy" (or incompetence) of the psychiatrists at the hospital.  (I bet that'd be my theory too -- or lots of people's -- after being locked up for 45 years.)

So just letting the guy continue to rot in a mental hospital forever isn't at all an easy call.

But neither is letting the guy go.  He committed a murder.  You've got to be at least a little bit worried that he might do it again if he's released.  At which point the blood would be on your hands.  There's surely a non-zero risk of that.  After all, yes, he's done very well in a structured environment.  But the environment outside the hospital walls is significantly less structured.  Maybe he'll stop taking his meds once released.  (He doesn't really think he's crazy, after all.)  Maybe he'll relapse.  Who can be sure?

And it's not like it was just a regular old murder.  There's a reason he was found mentally ill, after all.  He stabbed his wife and then . . . "had postmortem vaginal and anal intercourse" with her dead body.  Why, you might ask?  "[B]ecause 'he was trying to prove a null hypothesis,' to be sure that performing these acts was not going to bring her back to life."

Uh, yeah.  That's fairly crazy.  (I'm not going to give away the plot, but this theory reminds me of a key scene in The Devil All the Time.  Though I don't think that even the avant-garde Netflix is going to use the whole "sex in the butt to bring 'em back to life, just in case" theory.)

Yet, still, the guy's 74 years old at this point.  Frail.  As one witness testified, “I mean, you could probably push him over with one finger.”  Is the guy really going to be able to harm anyone at this point?  And he's got a set life outside once released.  His daughter's still in touch with him.  She's in San Francisco and has a guest room all set up.  And she's no shrinking violent; she's a 22-year career deputy sheriff.  Not likely that this guy's going to stab her like he stabbed his wife.

But still.  Everyone's got to sleep sometimes.  Who knows?  Can you ever be sure?

So the justices have to decide.  And live with the resulting consequences.  Leave the guy locked up and you're responsible for basically continuing to take away the life of a frail 74-year old who might well be fine at this point.  Let the guy go and, if he hurts or kills someone, you're at fault for that as well.

What's the call?

The Court of Appeal basically decides to . . . let him go.

Crossing their fingers, no doubt, in the hope that they're right about him.

Time will tell.

Monday, September 21, 2020

Koussaya v. City of Stockton (Cal. Ct. App. - Sept. 21, 2020)

Here's a harrowing tale that only gets worse and worse as the opinion goes on:

"Stephanie Koussaya was taken hostage, along with two other women, by three armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr. Used as human shields in order to facilitate the robbers’ escape from the bank, the hostages were forced into a Ford Explorer belonging to one of the hostages, Kelly Huber. A high-speed chase with law enforcement followed. For Huber, the chase ended abruptly when she was pushed out of the vehicle after Ramos shot her in the leg, apparently by mistake. For Koussaya and the other hostage, Misty Holt-Singh, the pursuit lasted for more than an hour, reaching speeds of over 100 miles per hour, and included exchanges of gunfire between Martinez, who was firing an AK-47 assault rifle out of the back of the Explorer, and two Stockton Police Department (SPD) officers, Captain Douglas Anderson and Officer Edward Webb. . . . Koussaya ultimately decided her best chance at surviving the ordeal was to open one of the rear side doors and throw herself from the moving vehicle. As Koussaya explained, having already heard multiple rounds hit the Explorer during the pursuit, she believed that if she did not jump from the vehicle she would be killed by the special weapons and tactics (SWAT) team when the chase inevitably came to an end. Minutes after Koussaya’s escape, the chase did come to an end, at which point police officers fired several hundred rounds into the Explorer, killing two of the robbers and the remaining hostage."

Imagine being in that situation.  You strongly suspect that you die if you stay in the car (correctly, as it turns out) versus knowing full well (again, correctly) that you'll be seriously injured if you throw yourself from a moving vehicle at 100 miles per hour (or whatever).

How horrible.

Thursday, September 17, 2020

Safaryan v. Barr (9th Cir. - Sept. 17, 2020)

You see people kicked out of the country for a lot of things.  You generally don't see 'em kicked out for road rage on the 101-405 interchange.

Eduard Safaryan comes to the U.S. on a tourist visa from Armenia in 1999.  He overstays his visa, finds love, and marries his wife in Los Angeles in 2000.  He and his wife have three kids (all U.S. citizens) and his wife (who was a permanent resident) becomes a citizen in 2002.

The problem for Mr. Safaryan is the whole "road rage" incident.  Another car cuts him off on the (very busy) 101-405 interchange in Sherman Oaks, Ms. Safaryan gets super miffed, and after following the offending car for a couple of miles "fake" swerves into it and then intentionally sideswipes it.  That's the only crime he's ever committed (as far as I can tell), and he ultimately gets convicted and sentenced to 270 days in jail.  Though he actually only serves 5 days.

But those 5 days are a big deal.  Since the U.S. is now moving to deport the guy back to Armenia.  On the grounds that he's now been convicted of an offense of moral turpitude.

So that road rage incident and five days in prison leaves three U.S. citizen children without a father and a U.S. citizen spouse without her husband.

That's a pretty big deal.

Wednesday, September 16, 2020

Bare v. Barr (9th Cir. - Sept. 16, 2020)

Today's Ninth Circuit opinion mentions that the petitioner, Ibrahim Farhab Bare, stowed away on a ship and came to the United States from Somalia, at which point he was granted asylum.  During subsequent years, he committed various crimes, and the government now seeks to deport him.

You see various opinions with similar facts.  Nothing special there.

But the opinion also notes that in 2009, "Bare and his [common-law] wife moved to Whippoorwill, Arizona, a small community deep in the Navajo Nation."  Hmmm.  I had never heard of that place.  I wondered where it was.

So I tried to locate it on a map.  Which was definitely not easy.  Mr. Google didn't help much.  It took ten minutes of diligent searching to find the place.

It's definitely a desolate place.  Nothing around for miles and miles and miles.

Though there are apparently around 1500 people who live in this "Chapter" (the Navajo equivalent of a town or county).  All but 6 of whom are Native American, and half of whom are under 21 years of age.

That's a young community.  Very young.  The median age in the United States is around 38.  A median age of 21 means either that parents in that community have a lot of children, that life expectancy in that area is very low, or that people leave the place shortly upon reaching adulthood.  Or several the of above.

The opinion describes Bare's presence in Whippoorwill this way:  "Bare began operating an unlicensed pawnshop out of his home, where he also sold alcohol and drugs. His pawnshop dealt in firearms as well, which is how he came into possession of the firearms he was convicted of possessing. Not surprisingly, Bare’s business attracted trouble for this quiet, rural community. There was an influx of vandalism, crime, violence, and unsavory characters."

I couldn't help but wonder if that's an outsider's description of what transpired.  It's a stereotypical story of an unspoiled rural community that's radically disrupted by the arrival of someone from outside the area -- in this case, a person from Somalia.  Whether that's an accurate depiction of what happened -- the resulting "influx of vandalism, crime, violence, and unsavory characters" into "this quiet, rural community" -- is obviously something that's beyond my knowledge.  But one wonders if that's an idealized vision of reality.

Anyway:  Whippoorwill, Arizona.  Deep, deep in the heart of the Arizona desert.

Tuesday, September 15, 2020

Burchell v. Loma Linda School of Medicine (Cal. Ct. App. - Sept. 10, 2020)

Particularly in retrospect, Defendants might have wanted to settle this one when they had the chance:

"In 2014, Burchell sought medical care after discovering a small lump in his scrotum. At the time, he was 41 years old. He was experiencing some scrotum pain but had no complaints about pain, deformity, or disfunction of his penis, and he reported that he was sexually active.

After some initial examinations and tests, Burchell agreed to undergo surgery to remove the mass and send it for testing. The consent forms described the procedure as a “local excision of a scrotal mass,” which Burchell was informed was simple, consisting of the surgeon, Barker, making a small incision, removing the mass, and then closing the incision. The common risks and side effects were bleeding, infection, and possible injury to surrounding tissue. The surgery was to be performed under general anesthesia, but as an outpatient; Burchell was expected to go home the same day and be “back on [his] feet” the next day. Burchell designated a proxy, his ex-wife, to make medical decisions on his behalf while he was unable to do so.

During the surgery, which was performed on August 12, 2014, Barker discovered that the mass was larger than expected. Presurgical examinations had detected what Barker believed to be about a one-centimeter mass in the scrotum. In surgery, Barker discovered that the mass was much larger, and it appeared to be vascularized and invading the nerves, blood vessels, and erectile chambers of Burchell’s penis. From what he could observe, Barker believed that the mass was malignant, and he understood that even a benign tumor could be harmful.

Barker considered removing only a portion of the mass for biopsy. He decided, however, to instead remove the entire mass, excising tissue not only from Burchell’s scrotum but also the penis—a “resection of the proximal corpora.” In all, Barker removed a specimen measuring eight by five by two and a half-centimeters. The mass would later be identified as a benign cystic lymphangioma.

Barker knew that this more extensive surgery would render Burchell impotent, causing the “immediate loss of the erectile chambers,” and damaging the nerves and blood supply to the penis. Barker made the decision to perform this procedure without further consulting either Burchell or his designated proxy, Burchell’s ex-wife. Burchell was under general anesthesia, so he could not be consulted without stopping the surgery. Although Burchell’s ex-wife was present at the facility during the surgery, Barker did not realize she had been designated to act as Burchell’s proxy; he never looked at that portion of the consent form. After the surgery, Burchell could not be sent home as an outpatient, but instead he was hospitalized for several days for “observation and pain control.”

Some of the more minor side effects of the surgery resolved in time. A week or two after the surgery, Burchell had to seek emergency treatment for an infection. He had “four huge boils” drained and described his pain as “excruciating,” but the infection was ultimately cured. Also, initially, Burchell had pain and numbness in his arms, apparently from not being repositioned during a surgery that took much longer than expected. That issue, however, resolved over time.

Other effects of the surgery have been longer lasting. Since the surgery, Burchell’s penis substantially “deviates to the right side,” a result of a large section of the right proximal corpora having been removed. He continues to have “spraying of his urinary stream and difficulty voiding in the standing position.” He has had constant pain internal to the base of his penis and no feeling at all in his penis."

Plaintiff made a $1.5 million CCP 998 settlement offer.  Defendants didn't accept it.  At trial, the jury awarded $9.27 million in damages.  Plus Plaintiff got another $1 million-plus in prejudgment interest.

I bet that $1.5 million offer is looking pretty good right now.

Mayron v. Google (Cal. Ct. App. - Sept. 9, 2020)

It's good to be Google.  Because you get opinions like this one.

With which I couldn't agree less.

Section 17602 of the Business and Professions Code places strict limits on "automatic renewals" -- subscriptions, monthly fees, etc.  That's a good law.  We all know full well sleazy companies put things like this in small print and you find yourself charged $19.95 a month forever even though you had no idea that's what the contract you signed or box you clicked or whatever would make happen.

So Section 17602 says that if you're doing stuff like this the automatic renewal part has to be clear and conspicuous; that if you're getting a "free gift" (as you often do with these things) the monthly charge is listed near the gift and not someplace off on the corner of the screen; that the company has to clearly tell you how to cancel the damn thing, etc.  Hurrah.  I'm totally in favor.  The only companies this hurts are sleazeballs trying to trick you.  For them I cry not.  Everyone else can readily and easily comply.  The world would be a better place.

What happens if the company doesn't comply with these rules?  No biggie, really.  We don't throw 'em in jail or impose a statutory fine of $500 per violation or anything like that.  Section 17603 says that if they automatically renew stuff without complying with Section 17602, the consumer doesn't have to pay the renewal fees.  She can instead just treat the product or service or whatever as "as an unconditional gift."

Great.  Love it.  Seems like an entirely appropriate remedy.

Here, Eric Mayron says that Google doesn't follow any of these rules when it charges $1.99/month for additional storage space on Google Drive.  Personally, I have no idea if he's right.  I would expect (and hope) that Google's not an idiot and that it has good lawyers and that it's willing and able and desirous of following the rules.  You don't have to trick people for this stuff.  They'll happily pay.  Just let 'em know that they've actually gotta pay, and follow the rules.

But the Court of Appeal never decides whether Google breaks the law or not.  Because it holds that a consumer doesn't even have standing to raise this claim.  In an opinion that seems indisputably wrong to me both as a matter of doctrine as well as public policy.

Justice Grover says that there's no express private cause of action listed in Section 17602 and 17603.  I'm not sure that's right, since it expressly says you get to keep the stuff, and I feel like similar statutes have indeed been held to permit private enforcement.

But whatever.  Justice Grover says that the only way that individuals can possibly sue (since there's no private right of action under Sections 17602 and 17603 themselves) is to file a Section 17200 UCL claim, since that incorporates underlying statutory violations.  Plaintiff  here expressly does that.  So he's good to go, right?

Wrong.  Justice Grover says that he doesn't meet the standing requirement because he hasn't "suffered injury in fact and has lost money or property as a result of the unfair competition" as required by Section 17204.  To which Mr. Mayron responds:  "But I did lose money; they took my $1.99/month."  At which point Justice Grover says:  "But the loss has to be caused by the violation.  You never said you wouldn't have signed up for the service if they'd have made a more conspicuous disclosure etc.  There's no causal link, hence no standing."

Facially, that response makes sense.  But it's nonetheless wrong.

The causal loss flows from the statute.  The statute expressly makes the item a gift.  And when you take (or demand) money for a gift, that's a monetary harm -- hence standing.  Justice Grover analyzes the usual way we find causal links, to be sure:  by looking at the underlying statutory violation (e.g., the absence of conspicuous disclosure).  That's one way to establish causation, yes.  But it's not the only way.  When a statute grants a particular remedy -- as the statute here unquestionably does -- that remedy can be the link in the causal change.  Which, here, it is.

I'll use an example.  One that's not even far off from the present case.  Imagine that we have a social problems with people mailing unsolicited items to people and them billing them for what was sent.  We think that's deceptive; that people end up paying for the items out of guilt, or uncertainty ("Did I order that thing?"), or what have you.  We think it's a bad practice, and doesn't advance a truly competitive marketplace.  So we pass a law that says:  "If you mail a package to someone who didn't order it, and you know they didn't order it, it counts as an unconditional gift.  They don't have to pay for it."  (If you want, you can change the hypothetical to a law that says that anyone who receives a package at home on a Sunday gets to keep the package for free, as a way of making sure that homes are undisturbed on a day of rest; the principal is the same.)

Imagine that Amazon starts mailing tons of things to people they know didn't order the stuff, and bills for the things.  Someone (call him "Shaun") gets a package, sees a bill, has no idea whether he or his kids (or spouse) has ordered it, and pays the thing.  Then he realizes he's been scammed and sues.

But let's say he admits (truthfully) that he paid the bill not because the thing was "mailed" to him (the statute only covers things that are mailed), but simply because it was presented to him -- he'd have paid it if it was personally delivered, left on his doorstep, sent by carrier pigeon, whatever.  Under Justice Grover's reasoning, there'd be no "causation' and hence standing.  But that's not right.  The monetary injury was that I paid $30 bucks for a thing I didn't order.  And then Amazon didn't give me my money back, which is what they were required to do under the statute, since the thing was deemed to be an unconditional gift.  And, parenthetically, that's true even if I got a thing that's worth $30 (as I likely did).  I'm still injured.  To the tune of $30.  Because Amazon took $30 of my money for a gift.

That's injury.  Caused.  By the violation of the statute.

So too here.  When Google didn't follow the law, the statute made the extra months of service a gift.  When they nonetheless then continued to charge Mr. Mayron a monthly fee, they injured him.  And what transpired here is even worse than the hypothetical I gave because Google's actually affirmatively taking additional money, whereas Google was simply not giving it back. (You can do this same hypo with the "Can't deliver on Sunday" hypo if you'd like -- the fact that Shaun would have accepted or paid for the package even if delivered on a Saturday doesn't matter; it's still a gift, hence injury.)

Oh, and by the way, this is not a hypothetical.  (Well, the "Sunday" one is, but not the other.)  California has that exact statute.  It's Section 1584.5 of the Civil Code.  Which makes sending unsolicited stuff an unconditional gift.  (Ditto for federal law, by the way.)  Just like the statute here.   For the same reason you can bring a 17200 claim under that statute -- and have standing -- the same is true in the present case.  Even though the Court of Appeal concludes otherwise.

I admit that standing involves complicated doctrinal issues.  But when a statute makes something a gift, and when someone nonetheless bills you for it, you've lost money.  You've got standing.

Except not here, apparently.  Not when you're trying to sue Google.

Monday, September 14, 2020

People v. Superior Court (Frezier) (Cal. Ct. App. - Sept. 11, 2020)

Are we seriously doing this?

Christopher Frezier has serious mental health issues.  The Escondido police department arrested him after his mother complained that he was behaving erratically and claimed that the family cat was "evil."  When the police came, they found Mr. Frezier locked in a bathroom, and when the police got inside, they found Mr. Frezier as well as a decapitated cat.

Take that, evil.

The police arrested him, and the criminal proceedings against him were suspended because the trial court found Mr. Frezier not competent to stand trial.  Around a year later, Mr. Frezier became competent, and criminal proceedings were reinstated.  Mr. Frezier entered a plea of not guilty by reason of insanity, and everyone stipulated that, yep, Mr. Frezier was insane at the time of the offense.  So the trial court enters an order committing him to Patton State Hospital.

So far, everything's normal.  It's playing out like usual.

The wrinkle is that Mr. Frezier never, in fact, gets transferred to the Hospital.  Inexplicably, he just stays locked up in jail in San Diego.  Essentially for a year; just sitting there, not getting treated.  He's there so long that (when combined with his pretrial custody credits) his "sentence" to the Hospital is now over.  So he's entitled to be immediately released.

Back into the community.  With zero treatment.  (Maybe we can civilly commit him -- or maybe not -- but the present opinion doesn't involve that issue.)

You might reasonably ask:  "Why did we just leave him in the local jail?  Why wasn't he taken to the Hospital and treated?  Like the judge ordered and the sentence requires?"

Good question.  The District Attorney's Office doesn't appear to have answered that question.

Below, "the trial court suggested that defendants committed to state hospitals were not being transferred to those hospitals because of the COVID-19 pandemic."  But two things.  First, Mr. Frezier was ordered to the Hospital in September 2019, way before the pandemic hit.  Why wasn't he transferred then?  And second, what?!  Our solution to the COVID-19 crisis is to simply leave insane people in local jails?!  A "solution" that works, I guess, if you think (1) there's very little COVID transmission in jails, and (2) the people to be institutionalized will simply get better on their own.  No problem then.

So while I initially thought this was a one-off opinion, perhaps we've in fact got a lot of people found to be criminally insane lingering in the San Diego jail population.  Which is suboptimal.  To put it lightly.

People v. Henderson (Cal. Ct. App. - Sept. 14, 2020)

It's struck me as strange as I was reading it that this opinion referred to the defendant by his last name (Henderson) and the key male witness the same way (Aguilar), yet referred to the key female witness by only her first name (Tiffany).

It may perhaps be that the panel doesn't know Tiffany's last name.  But she submitted a declaration in the case, and was also interviewed by an investigator (and we have the transcript), so I presume her last name is known to the parties.  Plus, the opinion's all about whether defense counsel should have called her as a witness; a pretty central player.

I can't find the briefs online right now, so for now, she's simply a last-nameless "Tiffany."  Someone who witnessed the defendant beating someone else up and screamed "Please do not kill my baby’s daddy” but was not called as a witness at trial.

Friday, September 11, 2020

Anderson v. Neven (9th Cir. - Sept. 11, 2020)

Come on, Judge Wardlaw.  Stop holding back.  Tell us what you really think.

Judge Wardlaw authored an unpublished memorandum disposition.  Her new colleague Judge VanDyke, who joined the court earlier this year, pens today a published dissent from the refusal to hear the case en banc.  Judge VanDyke's dissent is fairly . . . strident.  Judge Wardlaw responds with some choice words of her own, saying (among other things):

"Our panel’s unpublished memorandum disposition had no precedential effect. It therefore could not disturb the “uniformity of [our] court’s decisions.” Fed. R. App. P. 35(a) (criteria for en banc rehearing). Nor did this appeal present a “question of exceptional importance.” Id. While undoubtedly important to the parties, there was nothing to distinguish this case from the hundreds of habeas petitions our court adjudicates every year. Thus, it is little surprise that a majority of active judges concluded this was not the rare case worthy of en banc review.

Yet to read the dissent from denial of rehearing en banc, one would think that we mounted a full-on federal takeover of the Nevada state courts. In the dissent’s eyes, our “resultsdriven” decision, through its “layers of irony,” “menaces federalism” and was “deeply disrespectful” to our colleagues on the state bench. Dissent at 12, 28, 39, 40. Indeed, the dissent claims that the reasoning behind our unpublished 10- paragraph disposition leaves readers lucky to escape “disaster” or even death by “dysentery.” Dissent at 13.

I will not attempt to refute these histrionics point by point. Instead, for the benefit of those who have managed to survive their exposure to the panel disposition, I add only a few words in response to the dissent’s more egregious mischaracterizations of what transpired in this case."

Yikes.  Enjoy working together on the Ninth Circuit for the next many years, my friends.  (Chief Judge Thomas joined Judge Wardlaw's concurrence, and Judge Tashima writes:  "Because, as a senior judge, I am prohibited from voting on whether to hear or rehear a case en banc, I file this separate statement. For the reasons briefly and succinctly stated therein, I agree wholeheartedly with Judge Wardlaw’s opinion concurring in the denial of rehearing en banc.")

Judge Bumatay was the only person to join Judge VanDyke's dissent from the refusal to rehear this case en banc.  For whatever that's worth.

Thursday, September 10, 2020

Mai v. United States (9th Cir. - Sept. 10, 2020)

Not surprisingly, eight of the conservative judges on the Ninth Circuit (including all but three of the Trump appointees) dissent from the refusal to rehear en banc the latest Second Amendment opinion, which held that individuals who had been involuntarily committed to a mental health facility do not possess a constitutional right to own guns.

Obviously the underlying issue evokes strong feelings on both sides, and it's a high-profile case, so my particular perspective probably won't add much.

Nonetheless, I read Judge Bumatay's dissent, and did have a thought worth sharing (if only briefly).

Judge Bumatay's most persuasive concept, to me, was his principal that the Second Amendment shouldn't be treated as a "second-class" constitutional right.  He says -- and there's some weight to this, I think -- that we don't deprive people who've at some point been declared mentally ill of their First Amendment rights, for example.  Or their Fourth Amendment rights.  Or a wide variety of other liberties.  Sure, we take away some of these rights during their active institutionalization.  But after they're released, we mostly give 'em back all the rights they lost.  That's the principal, he says.  So we should do the same thing here.  Take away their rights while they're actively mentally ill, but restore 'em thereafter.

Now, one can readily understand the argument that guns are different; that there's little harm in letting a formerly institutionalized patient speak on a street corner or be protected from unreasonable searches and seizures, but as for giving the guy a gun, that's different, and a much greater risk of harm.  As history has occasionally quite starkly demonstrated.

But you also nonetheless see the counterargument.  "No, it's not different.  Same principle.  You get your rights back.  Sure, you did something wrong -- you were a active threat to yourself or others, so we put you in a hospital against your express wishes.  But once you're out, you're out.  We treat you like everyone else.  You get your rights back."

That strikes a fairly resonant chord with me.

But it'd strike a more resonant chord if the people who uttered that principle consistently believed and applied it.  Otherwise it just seems like a claim.  And as I read Judge Bumatay's dissent, I could not help but pretty much instantly think that all the arguments he's making apply with equal -- if not greater -- force to giving people who've at once point been in prison back their constitutional right to vote.  A principle with which I'm quite positive the vast majority of judges who joined Judge Bumatay's dissent (if not all of them) most definitely do not agree.  'Cause I'm quite confident that the fundamental right to vote is amongst the most important of political rights, and definitely shouldn't be given "second class" status either.  Yet we feel quite confident saying that if you've been in prison once, you should have your right to vote taken away foreverRegardless of how "reformed" or "good" you are now.

That's a belief that seems, to me, directly contrary to the one Judge Bumatay and his colleagues express.

Not surprisingly, Judge Butmatay has a response to this.  Down on page 25 of the dissent, he says that he's okay with the legal principle "once a convict, always a convict,” but not okay with “once mentally ill, always mentally ill.”

I just deny why you should believe the first of these.  Yes, they're technically different.  But it's the very same principle behind both of these aphorisms.  Sure, we know full well that just because you've once been mentally ill, that doesn't necessarily mean that you're currently mentally ill, and so (arguably) the presumption against you owning a gun shouldn't apply.  But we also know full well that just because you've once committed a crime, that also doesn't necessarily mean that you're currently a criminal or shouldn't possess the most basic political right of having a minimal say on the identity of the political leaders entitled to govern you.  To say that the former stereotype is wrong but the latter is perfectly okay just strikes me as both factually wrong and, to a degree, at least, fairly hypocritical.

It might be entirely consistent to say "Well, people guilty of a crime are constitutionally treated differently that people institutionalized for mental illness, and while I don't agree with the former, I'm nonetheless bound to treat them that way."  But even that's not true.  The Fourteenth Amendment just implies (at most) that states can take away the right of felons to vote, not that it should (and certainly not that it must).  If those who agreed with Judge Bumatay were the type of people who stood up and said "We firmly believe in letting bygones be bygones, and believe that you shouldn't have one's critical constitutional liberties taken away for any reason that's based solely on something that you formerly did -- mental illness, crime, whatever," then, I gotta say, I'd really respect that.  That's a strong argument.

But that's most definitely not what they're saying here.  They're saying:  "I believe in giving people back their guns notwithstanding their past sins, but not their right to vote; that's completely different."  That's a far, far less persuasive vision.

Of course, you can go the other way too, and say that people who believe in giving criminals back the right to vote but not giving the mentally ill back their guns are equally hypocritical.  But I think at least a decent argument that whereas giving a former criminal the right to vote doesn't result in pretty much any concrete harm to anyone, giving a formerly mentally ill person a gun might well result in a harms that are very much concrete.

All the time?  Of course not.  Most of the time?  I definitely doubt it.  Sometimes?  For sure.

Not sure you can say the same thing about voting.  At all.

So there's a powerful argument here.  I'm just not sure that I believe it given the central "caveat" that its authors enthusiastically embrace.