U.S. v. Laurenti (9th Cir. - Sept. 30, 2013)

The "chutzpah" award of the day goes to Bryan Laurenti.  Who argues that it's substantively unreasonable to sentence him to three years in prison for helping to operate a "pump and dump" scam.  Despite the fact that he made tons of people lose money, continues to deny responsibility, and transferred assets to his ex-wife to attempt to avoid his restitution obligations.

Be glad it was Judge Hatter instead of me.  Because three years was the middle of the guidelines range.  I might have imposed the top end.

Then you'd really complain.

In Re M.R. (Cal. Ct. App. - Sept. 30, 2013)

I just don't know what you do with some people.  Seriously.  What do you do?

M.R. is fifteen years old.  We want him to be a productive member of society.  There's a real downside if he's not.  Both to himself -- obviously -- and to society in general.

But here's his status quo:

"On August 2, 2012, the Alameda County District Attorney filed a juvenile wardship petition alleging that 15-year-old M.R. was a habitual truant under section 601, subdivision (b). It was alleged that M.R. had missed 255 school periods during the previous school year without a valid reason. M.R.'s alleged truancy was the sole basis for the juvenile wardship petition.

M.R. admitted the allegations of the petition at a hearing conducted on October 19, 2012. The court declared him a ward and ordered that his care, custody, and conduct were to be supervised by his probation officer. He was directed to reside in the home of his parents. The court imposed a number of probation conditions, including that M.R. attend school daily, comply with a 6:00 p.m. curfew, and not stay away from home overnight without the prior permission of his probation officer.

The court conducted a progress report hearing on November 30, 2012. In the report prepared for that hearing, the probation officer stated that M.R. had failed to attend school daily and had failed to abide by his 6:00 p.m. curfew. According to the report, M.R. had attended only two of the 15 school days since the last court hearing and arrived home at around 11:00 p.m. almost every night. At the progress report hearing, the court imposed an additional condition requiring M.R. to attend Weekend Training Academy (WETA) three times. WETA, a weekend program that is an alternative to detention, provides wards with community service opportunities as well as social values training. . . .

The court conducted the next progress report hearing on January 4, 2013. In the report prepared for that hearing, the probation officer stated that M.R. had gone to only one out of the three WETA's he was ordered to attend. M.R. called his probation officer and told him he was unable to attend any further WETA's due to illness. However, M.R.'s mother reported that he was not ill when he claimed to be. . . . The probation officer also reported that M.R. continued to violate his 6:00 p.m. curfew, had gone to Reno without his permission, and continued to be absent from school. For the one-month period ending December 13, 2012, M.R. had missed six full days of school in addition to 19 period absences. M.R. had received all F's in the previous quarter . . . .”

Skipping 255 periods.  Getting home every night at 11:00.  Going to Reno without permission.  Getting an F in every single class.  Continuing to defy his mother -- and even the court -- with impunity.

I'm just not sure that anything that can be done matters.  You don't want to give up.  At the same time, what do you do when someone's on a certain path seemingly inexorably?

A depressing way to begin a Monday morning.

People v. Valadez (Cal. Ct. App. - Sept. 27, 2013)

"In response to another hypothetical, [Officer Krish testified that] a person in a gang would still be a gang member, even if he or she moved away from the area, got a bachelor's degree, went to law school and became a lawyer, and returned to the neighborhood to play basketball and drink beers with other gang members."

So presumably that attorney would be subject to a gang enhancement too?

Watch out, those readers who've turned their lives around.

Dow v. Virga (9th Cir. - Sept. 5, 2013)

I agree with Judge Reinhardt there was pretty telling prosecutorial misconduct here.  You can't tell a jury that the fact that the defendant "tried to hide a scar on his face" during a police lineup proves that he knows he's guilty when you know full well that the person woo made everyone at the linup wear a Band-Aid over their "scar" was the defendant's attorney, purportedly following the standard practice for these sorts of things.

That's just wrong.  Moreover, particularly given the absence of  much evidence linking the defendant to the crime, as well as the fact that his first jury trial deadlocked, that error's not harmless. 

So the California Court of Appeal's contrary decision gets reversed on fededral habeas.  That decision is an unreasonable application of, and contrary to, federal law.

The California Court of Appeal issued its decision in 2004.  Shortly before I started this blog.  And the decision was also unpublished.

Which means that I didn't comment on it.  But had the situation been otherwise, my comments would likely have been along the same lines as Judge Reinhardt's.  (Comments joined, I might add, by Judge Milan Smith and Judge Carr, who was sitting by designation from the Northern District of Ohio.)

I might also add that, as it happens, I was sitting in the audience for the oral argument of this case, as I was waiting my turn to argue a different case before the same panel.  It was pretty clear which way this one was coming out from the oral argument.  Not surprising to anyone that Dow gets a new trial.

I'll add just one point that I didn't appreciate at the time.  Dow's conviction was affirmed in 2004.  It's now 2013.  Nine years later.  The docket number in the district court below begins with 06-. 

I can't figure out why it took so long to get this thing resolved.  During all of which Dow gets to rot in prison.  Seems unjust.  Especially for a guy who may be innocent, and who (at an absolute minimum) certainly deserves a new trial.

Mave Enterprises v. Travelers Indemnity (Cal. Ct. App. - Sept. 26, 2013)

You don't have to be a brilliant scholar of civil procedure to figure out that (1) when a plaintiff files in state court, (2) the state court stays the action in favor of arbitration, but (3) retains jurisdiction, the state court's going to be able to confirm the subsequent arbitration award.  Even if the defendant files a federal lawsuit to vacate the arbitration award one day before the state court's asked to confirm that award.

State court had jurisdiction first.  Still had it.  That defendant ran in first and filed a federal suit to vacate the award doesn't mean squat given that the plaintiff filed in state court years ago.

The California Court of Appeal does the right thing.  As will -- I strongly predict -- the Ninth Circuit when it hears defendant's pending appeal in federal court of the federal court's absention in favor of the pending state court suit.  Which has not been set for oral argument yet, but which is presumably coming up.  (Unless it's settled or dismissed.  Which, truthfully, it should be.)

State court suit filed first.  State court gets to confirm or vacate the award.  Not federal court.

P.S. - Reading this opinion also made quite palpable to me the "repeat player" problem of private arbitration.  Something that I knew about before, but that really hit home when I read this one.  The parties intially choose to arbitration before Justice Panelli.  It's an insurance bad faith suit with a high-low baseball arbitration of $500,000/$7.5 million, with the limits undisclosed to the arbitrator.  The insurance company -- Travelers -- subsequently requests (and receives) Justice Panelli's recusal.  (A decision they might, in retrospect, regret.)  The parties then decide on Alex Polsky.  Polsky hears the case and decides in plaintiff's favor.  Awarding a pretty astounding award:  only $100,000 or so in compensatory damages, but another $50,000 in interest, $2.4 million in punitive damages (based upon Traveler's "shocking" handling of the claim), and then adding another 40% on top of all of this -- another cool million dollars plus -- for Brandt fees.  So a total award of nearly $3.7 million.  For a case with (remember) a compensatory damage award of only $100,000.

So you can see why Travelers is bummed, and files a motion to vacate.  Which it's going to lose, mind you.  Even if Polsky erred.  It's arbitration.  It happens.  You're done.

But what's palpable to me is what Polsky must be thinking -- if only in the back of his mind -- about the case.  Travelers is a repeat player.  So are their attorneys.  Plaintiff's not.  Polsky has got to know that Travelers ain't going to select him again once he gives this award.  They aren't going to forget this one.  Lots of other insurance companies may have a similar view.  So unlike an actual trial court judge, Polsky's self-interest is definitely at stake.

Sure, Polsky's got lots of other potential arbitration parties.  And it's not like he's going to the poor house anytime soon in any event.

But still.  If you want to stay a "player" in the big-ticket arbitration world, you've got to be thinking -- if only in the back of your mind -- that awards like this risk your status.  A lot.

I had this keen sense when I read the parts of the Court of Appeal's opinion when the court mentions Polsky's repeated statements that this was an "unusual" case and that he doesn't usually slam people as much as he did here and that this was really special.  I'm certain he feels that way.  Genuinely.

But I also wonder if he didn't somewhat feel compelled to say that.  In the same way that other private arbitrators might feel compelled, at some level, to make sure that their awards are not only just, but also palpable to everyone.  So that no one -- or (more dangerously) no repeat players -- get crushed in a way that they (and others like them) won't forget.

A neat little dynamic plays out here.  Both on the litigation as well as the arbitration side.

Worth mention.

Beauchamp v. City of Long Beach (9th Cir. - Sept. 17, 2013)

I can answer this certified question from the Ninth Circuit.  With the answer that I believe both the California Supreme Court would give and that the Ninth Circuit's looking for.

Here goes:

The statute provides that when someone violates the California Disabled Persons Act, the plaintiff is entitled to statutory damages of $1,000 "for each offense."  Which is fine.  But here, the plaintiff sues the City of Long Beach, claiming that at one intersection there was the absence of a "curb cut" and three insufficient curb cuts (as well as tree roots), which he went to once a month, and then says that four times a week during the same continuous period he tried to use an intersection near a bus stop where there were three noncompliant curb cuts.  The district court gave him $17,000 in statutory damages.  But plaintiff wants $440,000 in statutory damages.  All for repeatedly going to the same noncompliant place again and again and again.

Maybe it'd be okay to give him a half a million dollars if there was deliberate misconduct; e.g., if the City was repeatedly informed of the problems during this entire period and did nothing.  But since the statute doesn't require that, there's no way we're going to give plaintiff a total windfall of nearly a half million dollars -- plus attorney's fees -- for what some would call "setting up" the City.  We're going to narrowly interpret the penalty provision so that "each offense" is more limited.  Or, alternatively, the holding is going to be that it's a violation of due process to impose such severe penalties in the absence of something special (e.g., mens rea).

I'm sufficiently confident of this answer that I might not have certified the question.

Or perhaps I'm just sufficiently confident in the justness of the answer.

Simpson v. The Kroger Corp. (Cal. Ct. App. - Sept. 25, 2013)

That "butter" that you think you're buying, with the huge words "butter" repeatedly and prominently displayed on the package, isn't actually butter.

But you can't sue.

Maciel v. Flores (9th Cir. - Sept. 25, 2013)

James Maciel gets convicted of committing lewd acts against a child, and is sentenced to over 42 years in prison.  He does his time and is released.  He's currently over 65 years old.

When he was sentenced, the trial court didn't impose a parole term.  Nor did it require that Maciel register as a sex offender.

Nonetheless, the state decided to impose a three-year parole term anyway.  Since it said that it doesn't matter that it wasn't part of Maciel's judgment, it was nonetheless required by state law.  Ditto for the sex offender registration.  Doesn't matter that the trial court didn't impose it or there's no judgment anywhere that requires it.  Gonna make you do it.

Maciel violates his new-found parole -- almost certainly for violating the new-found sex offender provisions -- and gets thrown back in prison for some more time.  Which, again, he serves.  Despite the fact (again) that the parole and sex offender provisions were never imposed by a court or part of any judgment against him.

Maciel files a habeas petition.  He wants a ruling that says he shouldn't have been subject to parole and can't be subjected to lifetime sex offender provisions since there's no judgment against him that imposes these conditions.

Justice Cardozo wrote a unanimous opinion for the Supreme Court in 1936 that holds that unless it's in the criminal judgment itself, you can't impose punishment against someone.  Even if it's obvious that it should have been part of the judgment.  The Second Circuit similarly held in 2006 that you can't put someone on parole -- even if it's required by state law -- if it's not part of the judgment, and that the Supreme Court's unanimous 1936 decision makes that rule "clearly established" (and, as there, accordingly justified habeas relief even under AEDPA).

Maciel's case seems pretty darn similar, eh?

Judge Nguyen nonetheless writes an opinion in which the Ninth Circuit refuses to give Maciel any relief.

As for his illegal parole provision, well, during the whole briefing process, he served his time, and is now out of prison.  So Judge Nguyen says that one's moot.

As for the fact that Maciel has to register as a sex offender for the rest of his life -- and get thrown back in prison if he makes a mistake -- Judge Nguyen says that's okay.  Even though it's not part of the judgment against him, it's permissible for California to do that.

So for the rest of his life, Maciel can't live within a half-mile or so of any school or park.  And gets to be continuously GPS monitored.  And has to report his address each and every month while he's homeless.

That's okay.  Doesn't have to be part of an actual judgment.

For whatever it's worth, from the briefs filed in a race discrimination case currently pending in the California Court of Appeal (filed by Maciel's former parole officer), it looks like Maciel has been found to be totally disabled and is confined to a wheelchair.  Apparently that makes it difficult to find a place for him to live.  (Not surprisingly, I might add.)  Especially when you're subject to the various, quite stringent residency restrictions of sex offenders.

So according to the California Attorney General's brief, Maciel got placed in a place called "Beautiful Homes for the Elderly," but had to move out of there once they found out it was too close to a school or park.  But since there was no place -- anywhere -- that anyone could find that was compliant with Jessica's law that (1) could treat a disabled elderly individual, (2) in a wheelchair, (3) who required 24 hour care, the state placed Maciel in "temporary custody."  Then they finally release Maciel once they find a place for him to stay, but they give him the wrong address, which results in him going to a noncompliant Motel 6.  At which point they violate his parole and put him back in prison.

What a world.

Mt. Holyoke Homes v. Jeffer Mangels (Cal. Ct. App. - 24, 2013)

Be careful whom you list as references on your resume.

Mt. Holyoke Homes L.P. sues Jeffer Mangels for legal malpractice.  There's an arbitration clause, which the trial court enforces.  Former Judge Patricia Collins gets selected as the arbitrator, but she gets bounced because she's got a prior relationship with defendant's counsel.  So former Judge Eli Chernow gets selected.  Judge Chernow discloses certain things, but ultimately the parties are okay with him.

The case gets arbitrated.  Jeffer Mangels wins.  Judge Chernow rejects plaintiff's malpractice claim, gives defendants $18,000 in unpaid legal fees, and awards defendants almost $300,000 in attorney's fees and $150,000 in costs for the arbitration.

Flat out victory for Jeffer Mangels.

Except for one thing.

After being crushed, plaintiffs go online.  They find a resume in which Judge Chernow lists Robert Mangels -- a pretty big player at Jeffer Mangels -- as a reference.

Plaintiffs move to vacate the arbitration award.  The trial court denies the motion.

The Court of Appeal reverses.  Holding the plaintiffs were compelled to arbitrate.  But that Judge Chernow's failure to disclose that he listed Mangels as a reference could reasonably lead someone to doubt his ability to impartially adjudicate the lawsuit against Jeffer Mangels.

So the arbitration award's for naught.  Do it all again.

Well-known arbitrators are generally "big names" in a particular legal community.  They know a lot of people.  They may even list some as references.

But it can get you disqualified.  So be careful.

And it's something to check out.  At least once you've lost the arbitration.

Heinemann v. Satterberg (9th Cir. - Sept. 24, 2013)

It's worth publishing this opinion just to point out what the 2010 amendments to the Federal Rules of Civil Procedure alerady make crystal clear:  You can't grant a summary judgment motion just because the opposing party failed to oppose it.  Regardless of what the local rules might say.  Can't do it.

Mind you, as the Ninth Circuit held, the motion for summary judgment here had merit.  So the district court's decision gets affirmed.

But on the merits.  Not because -- as the district court held -- the local rules say that the failure to file an opposition is deemed consent to the motion.  That may be good enough for ordinary motions, but not motions for summary judgment.

P.S. - I'm not entirely sure what type of lawyer wants to jump into a meritless case that the plaintiff has unsuccessfully (and repeatedly) litigated below pro se.  But somehow Mr. Heinemann gets an attorney in the Ninth Circuit.  Doesn't prevail.  But at least gets the Ninth Circuit to agree with him on one point.  Albeit an irrelevant one in this particular (meritless) case.

POSTSCRIPT - Informed readers tell me that plaintiff's lawyer was appointed by the Ninth Circuit.  Which makes sense, and I had thought that was possible at the time.  But the attorney wasn't part of the "usual" Ninth Circuit pro bono crowd, and I didn't immediately look up the docket.  Thanks for the informed e-mails, as always.

Swanson v. State Farm (Cal. Ct. App. - Sept. 23, 2013)

I'm surprised that this even needed to be said.  But if it's worth saying -- which apparently it is, since the appellant thought it was worth it to file an appeal -- then I'm glad the Court of Appeal said it.

The insurance company provided Cumis counsel to an insured, as required by California law, in light of the insurance company's reservation of rights.  Thereafter, however, the insurance company withdrew is various reservations, and agreed to fully defend the insured.

At that point, does the insurance company still have to pay Cumis counsel, or can it simply defend the suit with whomever it prefers?

It's the latter.  Which seems obviously true to me.  As it did (apparently) to the trial court and the Court of Appeal.

Whether it's obvious or not:  That's the law.

U.S. v. Arqueta-Ramos (9th Cir. - Sept. 20, 2013)

Ah, the majesty of criminal justice in federal court.  Like when you pack a group of 66 unrelated illegal aliens into a courtroom -- alongside their numerous lawyers -- and take their pleas en masse, telling the assembled masses to "stand" if they don't understand you, and dispensing justice in the same way you slaughter cattle.

And do the same thing, over and over again, hundreds of times a year.

That's "Operation Streamline" for you.

The latest permutation of which doesn't satisfy Rule 11 either.

Pacific Shores Properties v. City of Newport Beach (9th Cir. - Sept. 20, 2013)

Are you surprised that the City of Newport Beach didn't like "group homes" populated by individuals with substance abuse problems?  So passed an ordinance that basically made it difficult or impossible for these places to open (or persist) in Newport Beach?

The City Attorney realized that there was potentially a housing discrimination problem.  You can't target peole with substance abuse issues, so the theory behind the ordinance was that "groups" of individuals hanging out in a single home created "problems".  The City Attorney accordingly said that to avoid a lawsuit, Newport Beach should similarly regulate vacation homes.  Since those were similarly rented to groups of individuals.

Are you surprised that the residents of Newport Beach went ballistic about that proposal?  And said that they were happy to drive out groups of low-income druggies, but leave the rich people alone?

Not at all.

Finally, are you surprised that Judge Reinhardt writes an opinion that says that this is illegal?

Not.  Not surprised at all.

P.S. - I love the new, large fonts on the Ninth Circuit's opinion page.  Good for old people with failing eyesight.  Like me.

U.S. v. Sheldon (9th Cir. - Sept. 19, 2013)

We may be rethinking long sentences for drugs and the like.  But we're still happy to give super long sentences for certain things.

I know you're thinking that's stuff like murder, organized crime and the like.  But today, that's not what gets you forty years in prison.

It's instead possessing kiddie porn and making lewd videos of kids.

Moreno v. Quemuel (Cal. Ct. App. - Sept. 17, 2013)

Normally you can't open your car door into the middle of traffic and hit someone.  There's a statute that says so.  Or, if you do, you're liable.

But according to the Court of Appeal, if you're a police officer who's stopped someone for doing a "California stop" at a stop sign (i.e., a "rolling stop"), that doesn't apply any more.  The police officer is allowed to open his or her door directly into traffic -- here, into a motorcycle -- and there's nothing anyone can do about it.  Opening a door to get out of your vehicle and ticket someone who's already pulled over apparently counts as "immediate pursuit".  Hence no liability.

I'm sure that doesn't seem at all fair to the motorcyclist here.  Nor to anyone else who's injured by the negligence of someone else.

Though I'm sure it seems pretty fair to police officers.  As well as to cities that employ them.

See whether it seems fair to you.

Regardless, in the meantime, watch out for police cars.  Assume they're going to open their doors right into traffic.

Because they totally can.

Moradi v. Marsh USA (Cal. Ct. App. - Sept. 17, 2013)

This is a major expansion of employer liability.

Maybe it's right.  Maybe it's wrong.  But it's a major expansion.

You'd think that there's obviously no employer liability.  Plaintiff's driving a motorcycle and gets hit by someone driving home from work.  There's a longstanding "coming and going" rule that says that employers aren't liable for accidents like these because living elsewhere (i.e., someplace other than at work) is for the "benefit" of the employee, not the employer.  So you'd think this is an easy case.

You'd think that principle is even more applicable here than usual.  The employee works on South Fig in LA.  She lives in Woodland Hills.  A nicer place.  When she hits the plaintiff, she's not even going directly home.  She's pulling in to eat some frozen yogurt.  On her way to a yoga.  If that's not personal -- rather than for the benefit of the employer -- what is?

But the Court of Appeal holds that the employer could still be held liable.  Because sometimes the employee used her personal vehicle to do work stuff.  With the knowledge of her employer.  So the employer might be liable as well.

Think whether this principle applies to you.  Ever drive your own car to a client meeting?  Ever drive it to court?  Can your firm be liable for an accident that happens on your way to and from work?  The typical answer would be "No."  This case requires one to think again.

To reiterate:  Maybe that's a good rule, maybe it's a bad rule.  But this is definitely a broader view of employer liability than we've had before.  In a way that might well touch millions of people.

Lawyers included.

U.S. v. Grandberry (9th Cir. - Sept. 17, 2013)

I agree with everything Judge Berzon says here.  Every caveat, every distinction, every expression of concern.  Every single word.

It's not that Judge Watford doesn't have a point in his concurrence.  He does.  He notes that it's a bit anomalous that a parolee might have a higher expectation of privacy in someone else's home than in their own home.

That's right.  It's somewhat weird.

But it's not that weird.  Or, more accurately, it's the natural consequence of where we are.  And unlike Judge Watford, I don't think that's a reason to rethink -- or overrule -- existing circuit precedent.

We are where we are because of the deal the state made.  The state granted parole -- and the parolee accepted it -- on the condition that he subject his residence to search at the request of the police.  His residence.  As a result, he can't object when the police search his residence.  Acceptable.

But he can, however, object to a police search of places that aren't his residence.  Because he didn't consent to that.

That's the deal.  That's the contract.  Maybe it makes sense.  Maybe it doesn't.  But if it's the latter, it's not our fault.  It's the deal the parties made.

Let me put this in a slightly different way than Judge Berzon does.  Imagine that Grandberry had only consented to the search of his residence as a condition of parole.  Thereafter, the police -- without any reasonable suspicion of a crime -- searched (1) his vehicle, (2) his computer, (3) his girlfriend's place, (4) a Target at which he shopped once, and (5) his anal cavity.  You can see why Grandberry might well complain, right?  Why he might, indeed, move to suppress any evidence arising therefrom.  And why he'd be entirely right to do so.

Judge Watford would be correct that it'd be somewhat strange to say that Grandberry was entitled to feel more secure in his car (or at his girlfriend's place) than in his "castle" -- his home.  But that's not a surprising result at all given the deal that was struck.  Grandberry gave up his security in his castle.  But he didn't give up his security elsewhere.

The present case is absolutely no different.  Indeed, it involves (3).  Grandberry couldn't object to a search of his home because he waived that as a condition of parole.  But he didn't agree to permit the police to search his girlfriend's place, which was neither his residence nor (with the caveats explained by Judge Berzon) was it a place under his control.  It was her place.  The police couldn't invade her home without a warrant merely because they were allowed to invade his.

Judge Watford notes -- and I think he's right about this -- that this provides a way for criminals (like Grandberry, allegedly) to circumvent the law.  To avoid the search condition, they can simply sell crack out of their girlfriend's place rather than out of their own.

That's true.  Though that's, again, the result of the deal.  The same would be true if the parole deal covered a parolee's residence but not his car.  That'd similarly allow a criminal to circumvent the law by selling crack out of his car rather than his home.  Fair enough.  But that fact wouldn't allow us to say that someone who's agreed to permit his home to be searched automatically permits a warrantless search of his car.  That's not, in fact, what the conditions say.

How could the state get around this?  Well, it could perhaps condition parole on an agreement to allow everyplace the defendant has ever been to be searched without a warrant.  Would a potential parolee agree to that condition?  Maybe.  Though, for the reasons Judge Berzon notes, maybe not.  Maybe a parolee would be willing to have his own place searched without any suspicion of a crime but would not similarly sacrifice his girlfriend's constitutional rights.

Or perhaps the state wouldn't be willing to do so either.  Maybe voters might not like it were a state to say that whenever you let a parolee in your home, the state might use the parolee's search condition to encourage the police to search your home without a warrant.  That might simply go to far.

Yet that's pretty much exactly what the state here is contending the standard warrant conditions say.  Judge Berzon properly rejects that view, and I think for good reason.

If there's an anomaly here, it's not really the one that Judge Watford identifies.  At least in my mind.  It's instead the fact that we use purported standing requirements to prevent people from challenging searches that directly target them.  Judge Watford says that Grandberry shouldn't have standing to contest a search of his girlfriend's place, since it's not his.  Despite the fact that the only reason the police searched this place was to get evidence against Grandberry, the only basis of this search was Grandberry's parole condition, and the only evidence ever obtained was against Grandberry.

Yes, the Supreme Court says you sometimes can't challenge the invasion of the rights of someone else.  But in circumstances like these, that's silly.  Grandberry should be able to say that the police exceeded their legitimate authority and hence that the evidence they deliberately (and illegally) obtained should be excluded.  Judge Watford says that to so hold would be anomolous, but it seems to me that a contrary holding would be even more anomalous.

So, again, I think that Judge Berzon (joined by Judge Rakoff, sitting my designation) gets this one exactly right.  I might have expressed certain points slightly -- ever so slightly -- differently.  With alternative analogies, perhaps.

But everything she says resonates with me.  Perfectly.

Mt. Vernon Fire Ins. Co. v. Oxford Hospitality Ent. (Cal. Ct. App. - Sept. 16, 2013)

Plaintiff's definitely sympathetic.  She was horribly burned when a patron at the business at which she worked threw a lit soda bottle filled with gasoline at her.  Terrible event.  You can see why the person who threw the bottle was sentenced to life in prison.

But I've nonetheless got to agree with Justice Croskey (and the trial court).  There's no insurance coverage.  The insurance policy excludes coverage for assault and battery.  What the patron did is battery.  That there was no physical contact between the two people doesn't matter.  Throwing a bottle at someone counts as battery.  That's the end of the case.  Stipulated judgment for $10 million is worth nothing.

P.S. - I thought that Justice Croskey was also (understandably) kind to the plaintiff, despite the fact that she loses the appeal.  Justice Croskey describes her as a "nightclub dancer".  Which is true.  A little research reveals that the nightclub at issue was called "Babes and Beer".  You can guess what type of nightclub it was and the nature of the dancing thereupon.  Someone less nice than Justice Croskey might have used an occupational description slightly different than "nightclub dancer."

Doe v. Gangland Productions (9th Cir. - Sept. 16, 2013)

Congratulations!

You produce a series on television (Gangland) and broadcast the identity of an informant, who told you a lot -- on camera -- about a particular gang.  He alleges that you agreed to conceal his identity (which you indisputably didn't); however, the release he signed expressly gives you the right to do what you did.  Unfortunately (for you), plaintiff claims that he's pretty much illiterate, and that you told him that the release was just a receipt for the $300 (!) you gave him.

The district court denied your anti-SLAPP motion, holding that the motion didn't satisfy the first part of the two-part test (i.e., that the cause of action didn't rise out of your First Amendment rights).  The Ninth Circuit disagrees.  Big win!!

Except for one thing.  The Ninth Circuit simultaneously finds that even though you prevail on the first prong, for most of the causes of action, you lose on the second.  Plaintiff has established that it's probable that he'll prevail on the merits.

Oops.

That summary judgment motion that you were thinking about filing later on now looks much less likely to succeed.

Sometimes a victory on appeal ain't as good as it initially appears.

Gonzalez v. City of Maywood (9th Cir. - Sept. 9, 2013)

This is a civil rights attorney's fees case.  How much should the plaintiffs' lawyers receive?

Plaintiffs themselves received $500,000 total (as part of a settlement).  Plaintiffs are thus entitled to move for fees, and the parties have stipulated to a cap of $1,000,000 (plus a cap of $25,000 in fees-on-fees).

Plaintiffs allege a lodestar of around two million, and request the full million dollar cap.  The district court is very displeased with the fee application, awards around $475,000.  The Ninth Circuit reverses.

I must say that it's sometimes difficult as a judge to "explain" why you're picking a certain figure for your "fee haircut" rather than a different figure.  Sometimes it's like obscenity:  You know it when you see it when an attorney is billing an absurdly inflated amount, but you can't really explain with particularity why you think it's inflated by 60% as opposed to 50% or 30%.  You just know what you know.

The Court of Appeals nonetheless understandably requires district courts to try their best.  And Judge Wright's apparent best here simply wasn't good enough.  At least for the Ninth Circuit.

I'll give two predictions about this case.  One testable, the other not.

The testable one first.  I predict that, on remand, Judge Wright does one of two things:  (1)  He awards the exact same figure.  Or nearly the exact same.  Just with more detailed explanation.  And that, thereafter, the Ninth Circuit will affirm.  Or (2)  He awards plaintiffs nothing.  The "throw up the hands" approach.  That's a permissible response.  He might well even get affirmed were he to do so. But I think that, upon reflection, he will be sufficiently worried about being reversed, and the case remanded to a different judge, who will award the full million, that he'll do (1) instead.

See if I'm right.  At least if the case doesn't settle upon remand.  Which -- another testable hypothesis -- I do not think it will.

Second prediction.  Not testable:

Normally you don't remand to a different judge.  But I saw in the caption that the district court judge was Judge Wright, and then read what he said at the oral argument.  Normally, those two things get a remand to a different judge.  Which is what plaintiffs indeed request of the Ninth Circuit.

But I also saw that the opinion was written by Judge Randy Smith.  At which point I predicted that the case would not, in fact, get reassigned.

I was right.  Not reassigned.

But my nontestable claim is that at least a third of the panels on the Ninth Circuit would have reassigned this case to a different judge.

Let's see what happens on remand.

U.S. v. Lopez-Cruz (9th Cir. - Sept. 12, 2013)

Judge Reinhardt -- like the district court -- holds that just because you consent to have someone "search" your phone doesn't mean they're allowed to answer incoming calls and pretend to be you.  Plus holds that the defendant here had standing to object to the search.  Those are pretty straightforward principles, and I can totally get on board with them.

Whether you can read text messages on the phone would be a different issue.  That's much more akin to a straightforward search.  But even though someone could argue that the "search" of a cell phone necessarily involves its manipulation, you can see how extending that principle to hitting the answer button and talking with the person on the other end might involve something qualitatively different.

So the evidence here is suppressed.

That said, to be honest, I'm pretty darn impressed with the police work here.  From the rural portion of my (adopted) hometown, no less:

"One evening, border patrol agent Soto and his partner were patrolling Highway 80 near Jacumba, California, an area near the border with Mexico known for the smuggling of undocumented individuals. The agents began surveillance of Lopez because he was driving a car that they did not recognize as belonging to any of the residents of the nearby small town, and because he was 'brake tapping,' behavior that the agent recognized as consistent with people being 'guided in to pick up somebody or something.' When Lopez
pulled over to the shoulder of the road to make a U-turn, the agents stopped their unmarked SUV behind him and activated the lights to indicate that they were law enforcement personnel.

The agents walked up to the car and agent Soto asked Lopez where he was going and what he was doing. Lopez told him that he was going to pick up a friend, border patrol agent Amawandy, at a nearby casino. He also told the agent that the car that he was driving belonged to a friend. Agent Soto testified that he did not ask Lopez who the friend was, but that Lopez’s “answers changed a lot.”

During their discussion, agent Soto noticed two cell phones in the car’s center console. Soto asked Lopez whether the phones were his and Lopez responded that the phones, like the car, belonged to a friend. The agent then asked, 'Can I look in the phones? Can I search the phones?' Lopez consented by responding 'yes.' When conducting the search of the phones, Soto took them behind the car, out of Lopez’s presence where he could neither 'see [n]or hear what [the agent] was doing with the phones.'

Within about a minute, one of the phones rang. Rather than ignoring the call or asking Lopez’s permission to answer it, the agent answered the phone and initiated a conversation with the caller. The caller asked, 'How many did you pick up?' The agent responded, 'none,' and the caller hung up. The phone rang again less than two minutes later. The agent answered again and a different caller asked, 'How did it go?' The agent replied in Spanish, 'I didn’t pick up anybody. There was [sic] too many Border Patrol in the area.' The caller told him to return to San Diego. Shortly thereafter, the caller phoned again, believing she was speaking with Lopez, but instead informed agent Soto that there were two people next to a house where there was a lot of lighting, and gave instructions to drive there, flash his high beams, and the two people would come out.

The agents arrested Lopez and followed the caller’s instructions, which led them to pick up two people, who
admitted to being Mexican citizens without documents."

Pretty darn smart by agent Soto.  Got consent to search the phones.  Thought incredibly well on his feet when the phone rang, said exactly the right thing to get an incriminating response.  There's no way I'd have been even half as quick.

Sure, in the end, maybe he could have been even smarter.  Asked for consent, for example, to answer the phone.  Might even have gotten it.

But still, even though the evidence is suppressed, not all is lost.  They can still prosecute the defendant if they can get someone to flip.  And even if they can't, Soto and his partner were still able to do their job and catch a couple of undocumented immigrants.  Those people still go back, notwithstanding the suppression.

So it's half a loaf.  But that's still half.

Much less than you'd have to eat if it was Agent Martin on the job.

Amponsah v. Holder (9th Cir. - Sept. 12, 2013)

You don't usually see the Ninth Circuit demand a "rolling" response.  Like this one:

"Within 14 days after entry of this order, and within 90 days periodically thereafter, Respondent shall file a status report advising this court of the status of the Board of Immigration Appeals’ proceedings in the cases in which the Board is considering whether to overrule or modify Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 1976). See Petition for Panel Rehearing at 8 (“[T]he Board has recently called for supplemental briefing in two cases presenting the issue of whether the rule in Matter of Cariaga should be overruled or modified.”). Submission is withdrawn pending further order of this court."

The fact that it's a continuing duty puts some degree of pressure to actually get the thing done.

I like it.

Blaisdell v. Frappiea (9th Cir. - Sept. 10, 2013)

Can you retaliate against a prisoner -- someone over 18 years of age and not a party to a lawsuit -- who agrees to serve process on behalf of another prisoner?  To put it another way, can a prison official who's served with a lawsuit filed by a prisoner permissibly throw the prisoner who serves that official with the lawsuit into administrative segregation for 60 days?

Of course you can.  According to the Ninth Circuit.

Perfectly legitimate.  Doesn't violate anyone's rights at all.

Ellis v. Toshiba America (Cal. Ct. App. - Sept. 10, 2013)

Oops.  Did I say $11,000?  I meant $11,900.  My bad.

Oh, yeah.  Did I say Toyota?  I meant, of course, Toshiba.

I'll pay a little more attention next time.  Says the Court of Appeal.

Joffe v. Google (9th Cir. - Sept. 10, 2013)

Sometimes I just mention cases because they're neat.  Particularly when they involve a class action in which I (and probably most of my readers) are members of the class.

Like this one.

Judge Bybee makes it easy for me.  Here's the first paragraph of his opinion:

"In the course of capturing its Street View photographs, Google collected data from unencrypted Wi-Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi-Fi network is an 'electronic communication' that is 'readily accessible to the general public' and exempt under the Act. 18 U.S.C. § 2511(2)(g)(i). The district court rejected Google’s argument. In re Google Inc. St. View Elec. Commc’n Litig.,794 F. Supp. 2d 1067, 1073–84 (N.D. Cal. 2011). We affirm."

Yep.  That's the scoop.  Accurate and concise.

So it's an actionable claim.  Hence the class action goes forward.

Look for a settlement.  Look for lots of money for the class action lawyers (e.g., Lieff Cabraser).  Look for very little (if any) money for the actual class.  Notwithstanding the fact that the minimum statutory damages are pretty darn high.

I hope I'm wrong.  But I bet I'm not.

Sylvia Landfield Trust v. City of Los Angeles (9th Cir. - Sept. 9, 2013)

Imagine that you're an (alleged) slumlord and the City of Los Angeles has put your building in its "REAP" program, which permits tenants to pay their rent into an escrow account -- which the landlord can use to repair the premises -- once a landlord has failed to repair habitability violations.  You filed a federal lawsuit claiming that this program is unconstitutional, but the district court dismissed your lawsuit.  You've filed an appeal to the Ninth Circuit.

You now learn that your panel includes . . . Judges Pregerson and Fletcher.  With Judge Pregerson writing the opinion.  What are the chances the opinion comes out like this?

Virtually certain.

Affirmed.  Doesn't even need oral argument.

What L.A. did is entirely reasonable.  You're an (alleged) slumlord.  You've failed to comply with your repair obligations.  To say that you're nonetheless entitled to full and unfettered access to your tenant's rent and that L.A. can't do anything to ensure that the property gets repaired is . . . well, let's just say, not required by the Due Process Clause of the Constitution.

Pizzuto v. Blades (9th Cir. - Sept. 9, 2013)

Sorry, Gerald.  Your IQ is 72.  That's two points higher than the cutoff.

So you die.

A couple of quick points.  Wholly beyond the obvious arbitrariness of killing someone who has an IQ of 72 but letting someone live if their IQ is 69.  Particularly when the standard error of measurement of the IQ test is plus or minus five points.

First, to get a sense of just what it means to have an IQ of 72, I took an online IQ test.  I answered each and every one of the thirty-eight questions "False."  Didn't even read them.  My IQ was 83.  Not that far off from -- and even greater than -- 72.  So if a monkey's IQ is 83, that tells you something about what it means for a person to score lower than that.  (I'm sure that real tests are much more accurate than the online version, but I think it nonetheless highlights both the standard error point as well as just how low one can go and still not be "mentally retarded" under Idaho law.)

Second, I thought it was interesting that the panel discounted the "Flynn effect," which is the tendency of IQs to go up over time as the population gets smarter and more used to taking tests.  This is a pretty important issue.  The panel says that the Flynn effect "is not uniformly accepted as scientifically valid."  I'm sure that's true.  The same's also true for global warming.  As well as evolution.  I'm not sure that's really the relevant standard.  Aren't we more interested in finding out whether it's actually true?  Particularly when deciding if someone lives or dies?

Finally, I'm a bit more skeptical of than the panel of Idaho's rule that whenever one side moves for summary judgment, that means that there's necessarily no genuine issue of material fact.  Indeed, "skeptical" might be an understatement.  It's actually a total crock.  (Idaho's not alone, by the way, in having such a rule.)  Yes, when one side moves for summary judgment, the court may permissibly grant summary judgment to the other side.  If in fact there are no genuine issues of material fact.

But even when both sides move for summary judgment, in no way, shape or form does that mean that there are definitionally no genuine issues of material fact.  A straightforward hypothetical proves the point.  Imagine a car accident.  P claims that D was negligent.  P moves for summary judgment, saying "I saw D speeding, so grant me summary judgment."  D opposes the motion, saying:  "No, I was not speeding, so not only deny P's summary judgment motion, but grant me summary judgment too."

Do both sides claim there's no genuine issue of material fact?  Yes.  Are they right?  No.  Neither of 'em are.  Does the fact that both sides move for summary judgment mean that the trial court can grant it to one side or the other -- apparently, to whichever "looks better" on the papers -- since both "concede" there's no genuine issue of material fact?  No.  Not at all.  To do so would be to do no better than flipping a coin.  Without an evidentiary hearing, or trial, it'd be utter nonsense to try to decide the case.

Yet that's what Idaho law provides.  Petitioner here wants an evidentiary hearing to prove that his IQ is less than 70.  But since Petitioner also says he's entitled to summary judgment, Idaho (and the panel) says that he's "admitted" that there are no disputed facts, so there's definitionally no need for an evidentiary hearing.

Suffice it to say I'm not persuaded.

Drawing bright-line rules is always difficult.  Particularly when those bright-line rules determine who lives and who dies.

Cunningham v. Magidow (Cal. Ct. App. - Aug. 30, 2013)

Right on, Justice Rothschild.

I agree with every single word she writes in this opinion.

It's an otherwise boring little case about how one satisfies a judgment.  But it's a perfect example of an appellate court stepping in and stopping one of the parties from successfully being the _______ that he is.

The trial court didn't do justice.  The Court of Appeal definitely did.

Kudos.

P.S. - I like this one too.  Also by Justice Rothschild.  Rendered on the same day.  Straightforward and utterly correct.

Gravelet-Blondin v. Shelton (9th Cir. - Sept. 6, 2013)

I take particular interest whenever someone new is appointed to the Ninth Circuit.  You always wonder what they're going to be like.  Will they be smart?  Will they be funny?  Will they be a leftie?  A rightie?  Will they feel free to dissent?  Will they go their own way?

In short, what's it going to be like living with this person -- in a jurisprudential sense, anyway -- for the next twenty years?

You don't find out much at first.  (Similar to dating, I might add.)  It takes a while for the new person to percolate through they system.  They get confirmed.  They move into their chambers.  They get assigned to panels.  They read the briefs.  They participate in oral argument.  They spend a fair amount of time researching and writing stuff.

Only then, much later, do you have the opportunity to begin to view their work.  Which initially comes out in a trickle.

But, as with some other things, first impressions nonetheless matter.  So you try to get a feel for the person based upon what you can see.

There are lots of recent members of the Ninth Circuit for whom this is true.  Indeed, for me, anyway, it's been true for nearly all of them over the past quarter-century.

But I nonetheless mention it now in connection with Judge Nguyen.  She was appointed last year.  Today, she wrote this.  Which may perhaps give one a sense of what's to come?

It's an extremely unfortunate situation however you slice it.  An elderly man -- Jack -- decides that life may no longer be worth living.  He gets in his car, attaches a hose to the exhaust pipe, puts the other end through his car window, gets in the car and starts it.

His family members find out about this and call 911.  Officers promptly respond.  They've been told had Jack owns a gun and may well have it with him, so they're very careful.  They approach the vehicle gingerly and tell Jack to get out.  Jack complies, and has his hands at his sides.  The police officers tell Jack to show him his hands more clearly, but for whatever reason, Jack doesn't comply.  So the police tase the old man.  Who then falls to the ground (hard), at which point the officers pile on him to handcuff and restrain him.  At some point, for whatever reason, the old man pulls his arms underneath his body.  At which point the police tase him again while he's on the ground.

You may be thinking to yourself:  "Oh.  You're right.  That is unfortunate.  Maybe even excessive.  I bet the opinion's about whether the old man can sue the police for tasing him."

But you'd be wrong.  This lawsuit's about a different guy.  Donald Gravelet-Blondin.  Jack's next-door neighbor.

Don and his wife are watching TV and hear the commotion.  So Don goes outside to investigate.  Don's in shorts, a t-shirt, and slippers.  Clearly just a neighbor, not some gun-wielding nutjob.  He sees the old man on the ground, moaning in pain, with the police aggressively on top of him.  Concerned for his elderly next-door neighbor, he calls out:  "What are you doing to Jack?"

Don's 37 feet away at that point.  As Judge Nguyen points out in her opinion, that's "a little more than half the distance between the pitcher's mound and home plate" on a major league baseball diamond.

(To be a bit more accurate, it's actually closer to two-thirds of that distance, rather than halfway.   Or, to be even more accurate, 37 feet is pretty much three-quarters of the way from home plate to the mound, but closer to two-thirds of the way to the rubber.)

Oh, there's also Jack's car in between Don and the officers.  In short, Don's definitely interested in what's going on, and doesn't seem to be more interested in Jack's welfare than in the police's.

The police promptly see Don and scream at him.  One yells:  "Stop."  The other yells:  "Get back."  Leave to one side that these instructions are contradictory.

For whatever reason, Don does the former but not the latter (or, if he does the latter, only by one or two steps).  Don says he's frozen with fear.  Maybe that's true.  Or maybe he simply feels entitled to watch the police officers from 37 feet as they sit on top of his elderly next-door neighbor.

Don stands there for fifteen seconds.  Judge Nguyen notes that's a pretty substantial period.  Saying:  "[F]ifteen seconds is a long time to remain motionless when multiple police officers are yelling at you to retreat. (Try counting to fifteen one-thousand out loud, and see for yourself.)"

So what do the officers do?  Don doesn't move:  He stays 37 feet away.  One of the police officers moves towards him during this period.  Then one of the officers starts to tell Don that he'll be tased if he doesn't leave.  But apparently decides that there's no need to actually finish that sentence.  So tases Don in the middle of it.

(Oh, and if you're wondering what the officer's underlying attitude was, immediately after he fires the taser at Don, and Don drops to the ground twitching, the officer says:  "[You] want it again?!"  Then turning to Don's wife, located a distance away, and telling her:  "You're next."  Nice.)

Remember that Don hasn't moved.  He's 37 feet away.  He hasn't committed an aggressive act -- or even moved or spoken -- for 15 seconds.  A long time.  He's in shorts, a t-shirt and a slipper.  He's just standing there.  Watching.

Is it okay for the police to tase a bystander in a t-shirt and slippers standing 37 feet away, standing there for 15 seconds watching the police repeatedly tase an old man?

Judge Nguyen says:  "Yes."  She would hold that the officer is entitled to qualified immunity.  Judge Hawkins, by contrast, writes the majority opinion, saying "No."

I'm certain that Judge Nguyen doesn't like it that Don didn't obey the police.  My sense, for what it's worth, is that Don (1) didn't much like it that the police were repeatedly tasing his elderly neighbor for seemingly no reason, and (2) felt like the police were abusing their authority when they told him to go away, and so didn't feel the need to comply.

Similarly, I have a very strong sense that the police didn't like -- not one little bit -- that Don was not, in their view, sufficiently deferential.  They thought he had an "attitude".  Which played no small part in their decision to tase him.  As well as their decision to gratuitously threaten another tasing, as well as his wife, thereafter.  (It also helps explain why, after tasing him, the police also arrested him for "obstruction of justice," charges that were dropped by the district attorney.)

Let me set the stage one last time.  There were five police officers with guns.  There was one old man on the ground, moaning, after being repeatedly tased.  There was a next-door neighbor in slippers, shorts and a t-shirt 37 feet away.  Standing there.  Doing absolutely nothing.

Does that situation present a danger to the police sufficient to permit them to tase the guy?

Let's assume for purposes of argument that the police officers -- rather than simply being pissed at the dude (and I think a reasonable jury could easily so conclude) -- were actually worried about their safety.  Would such a fear be reasonable?  The guy's 37 feet away.  Assume that this t-shirt wearing guy all of the sudden decides to bum rush the five officers.  My guess is that an average person could close a 37 foot gap in about two seconds.  Maybe longer in slippers.

Two seconds is a long time.  Take Judge Nguyen's suggestion and count it out.  One one thousand.  Two one thousand.  Do you think that any of the five officers could pull their guns and shoot the guy within that period?  Especially if they're already on alert and, perhaps, already have their guns drawn?

Don't forget, by the way, that there's a car between the slipper-wearing neighbor and the officers.

(There's apparently a fairly well-developed body of literature on how long it takes for officers to shoot a charging assailant.  As well as a rule well-known to police officers -- the "21-foot" rule -- derived from that literature.  Here's a sample.  Suffice it to say that even a dude in sneakers who decides to bum rush five guys with guns stands absolutely no chance in hell.)

[Here's a helpful way to think about it.  Imagine that the NRA takes over major league baseball.  A pitcher beans a batter.  The pitcher carries a gun.  So does every other member of the infield.  What's the chance a batter can "storm the mound" before getting shot and killed?  I'd bet not much.]

Judge Nguyen says that the Ninth Circuit's being its classic nutty self and showing insufficient deference to police officers, that the officers here are entitled to immunity, and that no reasonable juror could possibly hold to the contrary.

Maybe this dissent's an outlier.  Or maybe it's an indicia of more to come.

Either way, it's an interesting case.  Judge Hawkins has one take.  Judge Nguyen has another.  See which one you find more plausible.

Alamo v. Practice Management Info. Group (Cal. Ct. App. - Sept. 5, 2013)

Congratulations.  I guess.

Defendant fires one of its employees a mere three hours after she returns from a three-month maternity leave.  She sues -- shockingly, I know -- for pregnancy discrimination.  She wins at trial.

Defendant appeals.  Loses the appeal.  But the California Supreme Court's hearing a pending case about the jury instructions in these sorts of cases, and decides it defendant's way, so thereafter sends the case back to the Court of Appeal.  Which, today, reverses the judgment and remands for a new trial with the correct instructions.

Normally that's an unambiguous win.

But as I noted when the original Court of Appeal opinion came out last year, defendant only got hit for $10,000 in damages at trial, and $50,000 in fees.  Not devastating.

It remains to be seen what happens on remand.  Sure, maybe defendant prevails.  Or maybe it gets spanked with $100,000+ in damages and $200,000+ in fees.  This time with correct instrucions, so it stands.

Could easily happen.

So maybe it's a win.  Or maybe it's a Phrrhic victory.

Time will tell.

Roman Catholic Bishop v. Bowen (Cal. Ct. App. - Sept. 5, 2013)

Boy, it is a hassle to reorganize the Catholic Church, isn't it?

The beginning of the opinion makes it sound like it's a simple case.  But as I read on, it actually sounds like this is pretty complicated.  It definitely at least looks like the Secretary of State isn't totally on top of things.  And may well be acting inconsistently, even if (perhaps) appropriately in the present case.

Figuring out how religious corporations work, and how they mesh with domestic corporation laws, ain't easy.

This case proves it.

People v. Liscotti (Cal. App. Div. - Sept. 3, 2013)

People generally think about the Second Amendment as protecting -- at some level -- the right to own and possess guns.

But it's important to remember that that's not what it says.  It instead protects the right to bear "arms".

We know from context that "arms" doesn't mean the thing below your shoulder.  We also know from context that it means at least certain types of guns.  Since muskets and the like were what the colonists used.

But what about other things?  Knives?  Cannons?  Missiles?  Nuclear weapons?  What exactly is covered by the Second Amendment?

The Appellate Division publishes an interesting opinion here.  One that I haven't seen in this particular factual context before.  I've seen lots of cases about knives.  But never a Second Amendment case about a billy.

You're probably familiar with "billies" from the term "billy club".  There's a California statute (Section 22210 of the Penal Code) that specifically says that you're not allowed to sell or possess a billy.  Or, for that matter, a blackjack, sandbag, or sap.

The police catch David Liscotti with a billy.  In particular, he took a wooden baseball bat, bore a hole in its center, filled the hole with a metal bolt, and wrapped the whole thing in nylon rope.  A pretty neat weapon.  Something with which Liscotti can definitely hurt someone.

They charge him with violating Section 22210.  To which Liscotti responds -- fairly creatively -- that he has a Second Amendment right to bear the thing.

The Court of Appeal disagrees.  Holding that, nope, you may have a right to bear a gun, but you've got no right to bear a billy.

I'm not too displeased with the result.  I'm fairly sure that the Founders didn't intend to protect every type of creative weapon that one might craft.

I'll nonetheless mention that it's actually pretty difficult to reach this result under existing precedent.  And the Appellate Division's attempt to distinguish controlling authority ain't entirely persuasive.

Under the Supreme Court's decision in Heller, the Second Amendment doesn't protect possession of "dangerous and unusual" weapons, but instead covers only those weapons that are "typically possessed by law-abiding citizens for lawful purposes."  Purposes which include but are not limited to self-defense.

"Exactly," says Liscotti.  "I kept the thing for self-defense.  If anyone tries to attack me, I'll bash 'em with it."

The relevant inquiry, of course, is not Liscotti's subjective purpose, but rather whether weapons like these are typically (e.g., historically) possessed for lawful purposes; e.g., self-defense.  Liscotti argues that that's undoubtedly the case.  Even cavemen used clubs to bash people.  Time immemorial.

To which the Appellate Division responds:  "Although counsel argues in his appellant's brief that weapons such as these have been carried since the beginning of time, no evidence was introduced to that effect at the trial on this matter. Judicial notice of an important fact needs some substantiation based on evidence presented at a trial."

That seems a lame response to me.  If I argued that guns have been used for centuries, would an appeals court (or the Supreme Court) say "Sorry, you didn't prove that fact, so we don't agree?"  No way.  There are certain things are are indisputably true.  Including but not limited to the fact that clubs and guns and the like have been used forever.  It's just silly to say there's "no proof" of that.  We can legitimately take judicial notice of it.

The Appellate Division further says, "as an aside," that "historically, it appears to this court that billys, as used by the cavemen, were used primarily for hunting and for defense against animals, not as weapons for self defense against other cavemen. Or, if they were used against other cavemen, it was probably an escalation in use of force to gain an advantage, which would now be unlawful self defense."

I disagree with both of those sentences.  I'm darn sure that billies -- and I think that's the correct spelling of the plural form of "billy," rather than "billys" as used by the Appellate Division, but I'm far from confident of that fact -- were often used to bash animals.  But I'm also certain, sadly enough, that they've been used for centuries (indeed, millennia) to bash other people in the head as well.  Particularly by people without access to other forms of weaponry.

Don't believe me?  Check out Braveheart.  (But be forewarned that it's pretty gory.)  See all those clubs?  See all those clubs hit other people?  Lots of clubbing.  Long history of it.

Plus, to me, if you're a caveman and are out to hunt (or defend yourself against) an animal, you probably use a spear or a bow.  Not a club.  By contrast, a club's pretty good for hand-to-hand combat.  Whereas it's not so hot against, say, a lion.

Nor do I agree that when clubs "were used against other cavemen, it was probably an escalation in use of force to gain an advantage, which would now be unlawful self defense."  You know why?  Because when that other caveman came into your cave, guess what he was probably holding?  That's right.  A freaking club.  To take your food, your spouse, your children, or just to bash you in the head with.  It's not an "escalation" to protect yourself with a club against some other guy with a club.  Or even against a guy with only a rock.  It's totally fine.  Even under the old-style Law of the Cave.

Don't believe me?  It's not just cavemen who carry a club.  Think about the modern era.  I'll bet you a huge amount of money that throughout California, there are a huge number of clubs leaning against nightstands, in closets, by the door, and in similarly accessible places.  We call those clubs "baseball bats".  I've got one in my closet.  Yes, I use it for baseball.  Also.  But trust me when I say that on those rare occasions I've held it in my hand at 2:00 in the morning, it wasn't because I was heading to the batting cages.  It was because it is -- and long has been -- a lawful weapon for lawful self-defense.

And I bet I ain't the only one who has so employed it.  Far, far from it.

For this reason, I simply disagree with the Appellate Division when it says that a billy can't be (and normally isn't) used for lawful self-defense.  It is.  So you can't avoid the Second Amendment that way.

So might reach the same result in two alternative bases.  You might say that a prohibited "billy" under the statute is something more than a club.  So that even if clubs are protected, billies aren't.

I might be okay with that.  The only problem being that the only definitions of a billy that I can find define the word it as a "club or heavy stick."  Which would include your ordinary, unmodified baseball bat.  So if that's what the statute in fact means, it may indeed have a problem.

You might alternately say that even if the Second Amendment covers some billies, it doesn't cover this one.  That argument strikes me as more plausible.  I agree that most "lawful" citizens don't go around boring holes in baseball bats and wrapping them in nylon just for self-defense.  That seems more typical of someone who really likes to use the thing.  Perhaps someone like Liscotti.

So that argument I could get my head around.  Although it's different than the one the Appellate Division makes.

(You'd also have to deal with the fact that at least some lawful people might in fact deliberately modify their bats to make 'em more powerful despite the fact that they're purely used for self-defense.  I don't know how much "lawful" use is required before something's protected as an "arm".  For example, I am confident that lots of people use guns illegally, and that some guns -- I'm thinking of things like MAC-10s, for example -- may be predominantly used by criminals.  But that lots of people use something improperly doesn't mean that it's no longer an "arm" under the Second Amendment, right?)

So I think the Appellate Division reaches the right result here.  But its reasoning seems quite a bit overbroad, as well as factually way off the mark.

One other overstatement's worth mention, and may typify the type of analysis with which I have a problem.  The Appellate Division says that Liscotti's billy "appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen."

I totally agree with the "brawl fighter" part.  I completely disagree with the "cowardly assassin" part.  As far as I'm aware, there are lots of tools in your typical assassin's standard arsenal -- guns, knives, poison, etc. -- but as far as I'm aware, a billy ain't one of 'em.  Moreover, if an assassin decided to take someone out by hitting them with a baseball bat, that may be many things, but "cowardly" is not the word that comes to mind.  Shooting someone in the back, whacking them with a high-powered rifle from a quarter mile away, sneaking poison into their drink:  Those I might define as cowardly.  But an assassin who stands up to a government leader with a baseball bat -- even one with a metal rod inside of it -- and who says "Bring it on!", well, that's not a cowardly assassin.  More like a badass.

Not that I'm condoning assassination.  But I'm not sure that they really employ baseball bats, and not at all sure that it'd be at all a cowardly way of doing things if they did.

Sorenson v. Superior Court (Cal. Ct. App. - Sept. 4, 2013)

Christopher Sorenson has two jury trials in 2011 to determine whether he's sufficiently ill to be involuntarily committed.  For whatever reason, after the second of these trials, he's not committed.

Eight days later, he kills his mother.

You can see why newspapers might want to look at the transcript of the proceedings.  Did he really seem competent?  Did the jury find him sane?  Did the prosecutor dismiss the charges?  What went down in the week prior to his decision a week later to kill his mother?

The Court of Appeal notes that there are substantial interests both for and against the media's request.  On the one hand, there's a substantial (and understandable) interest in the proceedings.  On the other hand, any proceedings to involuntarily commit someone involve lots of private information, and are presumptively not open to the public.  You can walk into a criminal trial.  For good reason.  You can't walk into a proceeding to involuntarily commit someone.  For good reason as well.

The Court of Appeal ultimately holds that the trial court didn't properly order the release of the transcripts.  It's a nonpublic proceeding.  However much interest one might have in seeing what goes on there.

A close -- and important -- case.

Drakes Bay v. Jewell (9th Cir. - Sept. 3, 2013)

Maybe you only care about this opinion if you're a "foodie" who likes local oysters from Marin County.

By the way, if so, you're out of luck.  Because the Drakes Bay Oyster Company is going away.  No more oyster farming in the Point Reyes National Seashore.  Drakes Bay had its forty-year lease from the U.S. (after selling the property therto), and it expired in 2012.  End of story.  The Secretary won't extend its permit, the district court won't issue a preliminary injunction, and the Ninth Circuit won't reverse.  Done.

The case is interesting -- to me at least (a non-Northern Californian who doesn't eat oysters) -- due to the lineup of the panel.  Judge McKeown writes the majority opinion.  Judge Watford dissents.

Similar, but by no means coextensive, sentiments.  Starkly different results.

On the merits, I think that both sides make darn good points.  I very slightly think that I'd side with Judge McKeown.  But that's a very slight preference.  I might well be wrong.  (As might she.)

But I think that Judge Watford's probably wrong that the Secretary of the Interior thought she was "bound" by the Congressional statute at issue, and hence that his decision was arbitrary.  It's a close question -- really close -- primarily (in my view) because the Secretary's decision is a classic example of obfuscatory legalege.  I think that the Secretary didn't feel compelled by the Act, but instead wrote a decision that wiffle-waffled and raised a ton of points and then just basically did what she wanted to do.  Which, I might add, she's entitled to do.  The closest Judge Watford can come to proving that the Secretary thought he was "bound" was when the Secretary said she gave "great weight" to a particular Congressional statute -- a statute that Congress later said the Secretary was free to ignore.  But the Secretary expressly gave "great weight" only to the "policy" behind that Act; that policy being the general desire for wildnerness lands to remain wild (rather than farmed).  I think the Secretary of the Interior internalizes that policy anyway.  You've just got some lawyer writing up all the reasons s/he can think of why a decision should come out a certain way, and it's a classic move to say that one of the reasons you're doing X -- which you totally want to do anyway -- is because you're "motivated" by a policy that's not merely your own naked preference but rather something that's "manifested" elsewhere.  And the policy here is manifested in that prior statute.  Yes, that statute's not dispositive.  But when the Secretary said there's an underlying policy, she's right.  She decided not to renew the permit because the Secretary of the Interior wanted a National Seashore to be "wild".  Shocking, I know.  She supported this decision by referring to a congressional policy preference -- one that does indeed exist -- that says that most wildnerness lands should indeed be wild.  It's true that that's not dispositive for the permit here, because Congress later expressly said that it's up to the Secretary to extend this particular permit or not.  (Thank you, lobbyists for Drakes Bay Oyster Co.)  But when she said "no, thanks, no permit," my gut tells me that was because she just didn't want to extend it.  Not because she actually felt "bound" -- as Judge Watford thinks -- by a "policy" preference articulated by a general (but not controlling) statute.

But I readily concede I might be wrong.  It's too bad that administrative decisions are often written in a confusing, overly legal manner.  Government officials do so precisely to avoid challenges to their decisions -- or at least successful ones -- but sometimes doing so is counterproductive.  As here.  It is also too bad we can't simply ask the Secretary what she meant.  But we can't.  And even if we could, I have little doubt that she wouldn't change her mind.  Fallacy of sunk costs, etc.

But my bet's that if we could peer into her soul, the Secretary here made the decision on the merits, and not on a mistake of law.  So her decision stands.

But just like the Secretary might perhaps have been wrong, so too for me.

God knows I've been wrong before.

But my bet's she's right.

U.S. v. Flores (9th Cir. - Aug. 30, 2013)

What's a "missile"?  Clearly this is one.  So's this.

But what about this?

That's what the Ninth Circuit has to decide.  Because you get a 15-level adjustment under the guidelines if the unregistered firearm at issue is a "missile".  But that term's not defined.  The district court held that the 40 mm cartridges here were indeed missiles.

The Ninth Circuit reverses.

I agree with Judge Paez and the rest of the panel.  These things aren't missiles.  A broad, dictionary definition might well include 'em.  Since anything -- even a pencil -- can be called a "missile" if it's thrown.

But that's not what the guidelines mean.  Exactly right.

However, for me, this is one of those cases in which a picture really is worth a thousand words.  Actually, in this case, a little over 3000 words.  Which is the length of Judge Paez's opinion.  He writes a lot about what a missile is and isn't.  But he keeps calling the relevant item at issue a "40-mm gold-tipped high explosive dual purpose cartridge."  I'm sure that's its proper name, but I don't have a firm sense of what that means.  Even after I read several thousand words.

I did have the sense that it wasn't a "cartridge" like I'm used to.  Something that holds a bullet or something like that.  I had a vague sense that it was more like a mortar.  But Judge Paez never even uses that word, so I thought I must be wrong.  He just keeps describing something that looks like a mortar and does damage like a mortar.  So I thought it was sort of like a mortar.  Something that I agree is not a missile.

Only when I looked up the picture of the thing did I understand.  Oh.  Now I get it.  It's a grenade.  They may not call it a grenade.  But you fire it out of a handheld grenade launcher.  I watch movies.  I know what that is.  Yeah, I agree.  That's not a missile.  It's a grenade.

I also then understand the potential confusion.  Certain types of grenades might be missiles.  I'm thinking like an RPG.  Sell one of these, or one of these, and yeah, maybe you get 15 levels up.

But not the old 40 mm.  That's just a regular old grenade.  You still go to prison for a long time.  'Cause it's a vicious weapon that we don't want on your hands.  But the extra 15 levels is for something even more totally serious.  Not this thing.

So maybe include picture, Judge Paez.  Or at least describe the thing a little better for the uninformed.  With language we're used to.  Because once you use the right words, or help our eyeballs a bit, we're even more on board.  That stuff makes clear you're totally right.

Benitez v. Williams (Cal. Ct. App. - Aug. 30, 2013)

It's Labor Day.  Which means no opinions.

But that doesn't mean we can't labor.  Or be required to labor.  Or critique the labor of others.

Because no one comes out looking good in this one.

Which one looks worse:

(1)  Plaintiff's counsel.  Who filed a federal copyright claim -- over which the federal courts indisputably have exclusive jurisdiction -- in California state court?  Clearly someone who didn't even take a "survey" IP class.

(2)  The trial court.  Judge Fahey.  Who told the plaintiff that he needed to "remove" the lawsuit to federal court , under penalty of dismissal.  Despite the fact that even first-year law students know that only defendants can remove.  (At the hearing, plaintiff's counsel asked whether only defendants were able to remove cases to federal court, to which Judge Fahey responded:  "I don't think that's necessarily the case."  Wrong.  It totally is.)

I'm going to have to say Judge Fahey.  Who should have known better.  Particularly after plaintiff's counsel filed papers letting him know that only defendants could remove.  That didn't deter Judge Fahey.  Who then dismissed the entire action -- including the state law claims -- on the ground that plaintiff had failed to remove the lawsuit to federal court as ordered.

It's certainly not the Court of Appeal.  Which totally understands this stuff.  Yes, you need to file federal copyright claims in federal court.  No, if you're the plaintiff, you can't remove them there.  Yes, it might be nice to have the supplemental state claims filed alongside the federal claims in federal court.  But that's not a requirement (and may not even happen anyway, depending on whether the federal court elects to exercise supplemental jurisdiction over them).  You can file your state claims in state court if you want, as long as the federal claims get filed where they belong.  Or dismissed.

The one thing I can slightly fault the Court of Appeal on -- and it's a gentle critique, because it gets this case exactly right on the merits -- is how long it took to get this case adjudicated.  The appeal took over a year to work its way through the system.  It's a totally easy one.  It could have been summarily adjudicated.  Instead the Court of Appeal gave respondents repeated extensions to file an utterly meritless brief and then took over two months after the oral argument was finished to file a seven-page double-spaced opinion that says stuff that couldn't be more true (and was presumably already written in draft form before the argument).

Not the most impressive labor by anyone in this history of the universe.  (Though, I'm sure, far from the worst as well.)