Monday, December 30, 2013

People v. Virgo (Cal. Ct. App. - Dec. 30, 2013)

When the SWAT team comes to get you, this is what you do not do.  Otherwise you'll be spending the rest of your life in prison.  Despite the fact that you had absolutely no shot whatsoever at either (1) escaping, or (2) actually hitting the officers with any of the bullets you sporadically fired towards them.

Not that actually hitting them would have done anything other than gotten you the death penalty.  Because in this particular context, you were surrounded and were going down.  Why David Virgo decided to "shoot his way out" -- or, more accurately, fire shots indiscriminately into the woods -- and then give up is beyond me.

Apart from the fact that he's probably seen too many movies.  That he didn't realize were fake.

Federal Ins. Co. v. WCAB (Cal. Ct. App. - Dec. 3, 2013)

"The applicant for workers’ compensation was a professional basketball player who was not employed by a California team, has never resided in California, has played one professional game in California out of 34 games played during the 2003 season, and has suffered no specific injury in California. She seeks a workers’ compensation award in California against her former non-California team and its insurer for a disability based on a cumulative injury."

From that opening salvo, do you get a sense of where the Court of Appeal is going in this one?

Adrienne Johnson -- an OSU graduate who played in the WNBA for the Cleveland Rockers, Orlando Miracle/Connecticut Sun, and the Seattle Storm, and who has at various times resided in Florida, New Jersey, and Kentucky -- does not get to take advantage of California law.

However wonderful it might be.

Friday, December 27, 2013

People v. Rios (Cal. Ct. App. - Dec. 27, 2013)

You read the first two pages of this opinion, which describe the basic facts of the case, and (if you're like me) you think to yourself:  "Good.  Couldn't be happier the guy is in prison, without the possibility of parole, for the rest of his life.  Can't think of a more purely evil person."

Then you read the next half-dozen pages.  Which describe the circumstances in more detail.

And what was depressing at first becomes even more so.

Ross v. Roberts (Cal. Ct. App. - Dec. 23, 2013)

Even an old fogey such as myself knows who "Rick Ross" is.  He's the latest incarnation of the rapper/drug dealer persona.  With an emphasis on the accumulation of wealth through any means.  He has a following that's particularly large and proud.  So much so that even people like me have heard of him.

But what I didn't know -- until now -- is that "Rick Ross" isn't actually Rick Ross.  His name's actually William Roberts.  Or, were we to shorten it, "Billy Bob".  Which makes me understand why he might prefer the name "Rick Ross."

Moreover, while "Rick Ross" portrays himself as a drug-dealing "gansta" livin' the life of crime, he's actually . . . a former prison guard.  Not exactly something he's excited to tell his fans.  So he tries to keep that fact -- as they say -- on the "down low".

All of which is interesting.

But what I also didn't know until now is that there's actually a Rick Ross.  He's a real person.  Moreover, he's also -- or at least was -- someone famous.  So much so that there's substantial -- indeed, fairly huge -- evidence that the "current" Rick Ross took his name, and story, and the persona from this other (real) person.  Someone who happens to be currently alive.  Not only appropriating his life story and personality, but even some of his memorable "catch phrases".

The "real" Rick Ross was/is also knows as "Freeway Ricky" Ross.  He was a huge cocaine dealer during the crack epidemic of the 80s and 90s.  And boy do I mean huge.  As in selling nearly a billion dollars of coke.  A performance that achieved for himself some no small amount of renown.  The type of renown that the later "Rick Ross" thought could be capitalized upon.

Apparently the real Rick Ross discovered that you could get really cheap cocaine from Nicaragua.  So he undersold his competitors.  And distributed it throughout the country through Crips and Bloods.

The words "Nicaragua" and "80s" may perhaps ring a bell for you.  Maybe you vaguely recall something about the contras.  No coincidence.  There's lots of evidence that Rick Ross had contacts with the CIA and that the U.S. government was fully aware of the drug-dealing that simultaneously provided funds to the contras as well as permitted Ricky to make his living.

Ultimately Ricky got busted.  But now he's out of prison.  And he thought that since his life had been ripped off by the "new" Rick Ross, he'd sue.  So he did.

The California Court of Appeal affirms the dismissal of the lawsuit filed by the "true" Rick Ross.  Albeit on alternate grounds than those relied upon by the trial court.  The Court of Appeal holds that the "fake" Rick Ross had a First Amendment right to appropriate the persona of the "true" Rick Ross because his use of that persona was "transformative."  The "new" Rick Ross has a variety of attributes -- rapper, entertainer, etc. -- that the "old" Rick Ross didn't have.  So that makes it a new expressive work.  One that's protected by the First Amendment.

For me, it's a very difficult line to draw between "derivative" and "transformative" works.  Even in general, and as applied to traditional works (e.g., books, movies, etc.).  But that's especially the case here.  When we're talking about appropriating the existence of someone else.

Everyone recognizes that you don't have a First Amendment right to conduct identity theft.  Or go around dressing and singing like Mariah Carey and selling tickets while pretending to be her.  That's taking away someone's right of publicity.

But what about tribute bands?  Or people who are "sort of" like their doppelgangers?  What's the correct line there?  When do you have the right to "sort of" pretend to be another person?  Which, in my mind, is pretty much transpiring here?

It's especially difficult in a case like this in which there's a nontrivial amount of time between the filing of the lawsuit and the "new" person's appropriation.  Which is something I wish the Court of Appeal would have addressed in its opinion.  The Court of Appeal strikes a resonant chord with me when it says that the new Rick Ross is sufficiently different from the "original" Rick Ross to make a difference.  After all, the new Rick Ross does indeed do a lot of things nowadays that the old Rick Ross didn't do.

But what about when Billy Bob first started appropriating the life of Rick Ross?  What about when Billy first started calling himself Rick Ross, and wasn't yet rich and famous?  At that point, Billy wasn't all that he now is.  He hadn't really done much -- if anything -- transformative.  He hadn't expanded his franchise.  He didn't have the abilities (or talents) he now has.  It'd be hard to argue that what he was doing at that point was really transformative.  He was simply trading off of someone else's fame and good name.  If that's true, how can something that's initially wrong become right merely through the passage of time?  Even if it's true that an ultimately transformative character was created, if the only thing that permitted such a transformation was the initially illegal acquisition of someone else's personality, how's that okay?

It might perhaps be that even the "initial" (new) Rick Ross was so radically dissimilar to the (original) Rick Ross that even that persona was transformative.  But I strongly doubt it.  If so, the case is especially tough.  It then involves not only how you draw the relevant line, but when.  Making things doubly difficult.

But at least for the meantime, (former) King of Cocaine Rick Ross loses to the (current) King of Cocaine Wanna Be Rick Ross.

And we all get a little more educated.

Thursday, December 26, 2013

Alto v. Black (9th Cir. - Dec. 26, 2013)

Usually when you're an adopted child, you're a child.  All the benefits (and liabilities) arising thereto.

With one big exception.  Indian children.

Sometimes the tribe may care -- deeply -- about not giving you (or your descendants) a share of gaming revenue.  And the resulting dispute may be litigated in so many different ways, and in so many venues, that it'll be hard to even keep track of them all.

But it all ends here.

Happy Boxing Day.

Monday, December 23, 2013

Lexin v. City of San Diego (Cal. Ct. App. - Dec. 23, 2013)

Just what the City of San Diego needs:  More multi-million dollar expenses arising out of the whole pension debacle.  This time it's on the hook for paying the criminal defense costs for various members of the board of directors of the San Diego City Employees' Retirement System.

No chump change, either.  Over $1.7 million for Cathy Lexin.  Over a million bucks for Webster.  Nearly another million for Vattimo, over three quarters of a million for Saathoff, and nearly a half-million each for Torres and Wilkinson.

Merry Christmas.

Friday, December 20, 2013

U.S. v. Shorty (9th Cir. - Dec. 20, 2013)

Judge Reinhardt's right.

Personally, I think the defendant knew full well what she was getting into.  She (and her lawyer) wanted a bench trial, and after a brief colloquy with the trial court, she expressly waived her right to a jury trial.  So if nothing was at issue other than the ability of a person -- albeit one with an indisputably low i.q. -- to waive her right to a jury trial, I think the right result here would be to uphold the waiver.

But there's another thing at stake.  An actual rule.  Federal Rule of Criminal Procedure 23.  Which expressly states that "If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves."

There's no doubt that the waiver here wasn't in writing.  So the first part isn't satisfied.  For a textualist, that should be the end of the story.  Period.

But precedent hasn't entirely been written by textualists.  Which -- notwithstanding the clear dictates of the rule -- permits oral waivers as long as there's a detailed colloquy with the trial court in which the defendant is told that (1) the jury's twelve people, (2) the defendant gets to help select the jury, (3) the verdict must be unanimous, and (4) at a bench trial, only the judge decides guilt.  The district court here only disclosed two of those four facts.  That, plus the fact that the defendant is learning disabled, results in reversal.

I also agree with Judge Reinhardt on the sufficiency of the evidence issue.  There's enough evidence of guilt.  So on remand, a jury gets to either convict or acquit.  At its leisure.

It's also interesting to see who gets reversed here.  The district court judge who conducted the trial and who found the defendant guilty -- the judge who does not get reversed -- is Judge Snow.  The district court judge who conducted the jury-waiver colloquy -- the judge who does get reversed -- is Judge Murguia.

Who's now on the Ninth Circuit.

People v. Rios (Cal. Ct. App. - December 20, 2013)

I don't think I fully understood just how dominant gangs are in prison until I read this opinion.

Did I know they're pretty central?  Yes.  Did I know that members of rival gangs get separated?  Of course.  No one -- neither the prisoners nor prison officials -- want mortal enemies sharing a cell.

But I didn't realize the full extent of it.

For example, here, in Monterey County, there are separate portions of the jail -- separate dorms -- for (1) people who do not associate with gangs (i.e., people like you and me); (2) Norteno gang members and associates; (3) Sureno gang members and associates (the Norteno and Sureno gangs are the largest in California, and are enemies); and (4) gang members who are associated with "lesser" gangs (e.g., Bulldogs from Fresno or Hell's Angels).

So you get placed with your "type".  Your friends.  Your buddies.  Or at least not your enemies.

To accomplish this mission, officials get information from the prisoners.  They ask 'em what gangs they're associated with.  They try to make sure they're not "dropouts" from the gang -- people who left the gang, since that means they'll be attacked if they're housed with members of the gang.  Stuff like that.

But this isn't totally easy.  Because if the prisoner admits he's part of a gang, that can be used against him at trial, and might lead to a pretty serious gang enhancement.  So jailers sometimes have a tough time making sure they segregate the prisoners like they want.

So here's what they do.  They have the prisoner fill out an inmate screening questionnaire (ISQ).  They then take the inmate into the relevant gang dormitory -- in other words, they put the inmate into the "gang" they believe he belongs.  Jail officials then put the prisoner on a second-tier bunk and make him fill out paperwork under guard.

During that time, the existing gang prisoners check out the new arrival.  They decide -- under the watchful eye of the jailers -- whether the dude is in good standing with the gang.  If he's not, "within seconds," they "roll him up"; i.e., assault him or otherwise turn him away.  If he is, they leave him be.  Either way, the guards then leave.  They now know the scoop.  If the guy's been attacked, they know he belongs somewhere else.  If not, they know they've chosen wisely, and leave him there.

Ever see red ants and black ants placed together?  Maybe as a kid?  Or ants that might be from a different colony?  Same thing.

Only in prison.  With humans.  Under the bureaucratic gaze and implementation of state officials.

One more thing.  If the prisoner is not attacked, the state gets to use that fact at the defendant's trial.  To prove that they guy was, in fact, a gang member, and hence may be subject to a gang enhancement.

I can only imagine what a visitor from another planet would think of all this stuff.

Thursday, December 19, 2013

People v. Williams (Cal. Supreme Ct. - December 19, 2013)

Merry Christmas, Robert Williams.  We're going to kill you.  Notwithstanding your 17-year old daughter's plea at your sentencing at we spare your life.

Not that you should be particularly surprised, Mr. Williams.  One of the dangers I learned from reading this opinion is that when you knock off banks, although the police might not know who you are, others in your neighborhood might.  Which in turn occasionally leads to entrepreneurs like Mr. Williams coming up to you and saying:  "I know you niggers out there getting licks and I want my share of the money."  "Licks," I now know, meaning "robberies."

Which in turn leads Gary and Scott to hit a credit union.  In part to get money for themselves and in part to get money to pay Mr. Williams.  Apparently it's not just organized crime that effectively encourages crime.

Scott, unfortunately, was captured by the police during a high-speed chase after the robbery.  Whereas Gary fled in a different car and escaped.

Ironically, Scott was the lucky one.

Mr. Williams and two of his confederates subsequently show up at Gary's house. After returning from dinner, Gary's there with his girlfriend, and Gary's father -- Roscoe -- temporarily leaves for the store.  Williams and his buddies display guns.  They're wearing gloves but no masks.

Uh-oh.  When you're wearing gloves but no masks, that means you don't want to leave any evidence.  But you're not worried about witnesses.  Which is definitely bad news for the witnesses.

Defendants grab up all the available jewelry and money.  They tie up the girlfriend and threaten to rape and kill her if the occupants don't tell them the location of additional money they suspect is in the house.  Gary's father returns to the house, and defendant tells his confederate to "snatch his ass in the house," which the confederate does.  Gary reveals the location of additional money in a cologne bag in the bathroom, but Mr. Williams is unsatisfied, saying:  "“That ain’t all the money . . . . Gary just hit two banks back to back.”

It's not a good sign when the person robbing you knows the details of your robberies.

Williams sexually assaults the girlfriend in a bathroom.  He then tells his confederate -- chillingly -- to "Do his old man in front of him."  Referring to Gary's father.

I shan't describe what transpires next.  Suffice it to say it involves a brown trash bag placed over a head and various knives sliced across throats.

By a miraculous series of events, the girlfriend survives.  Having jumped naked from the waist down out a window, already covered in blood (with additional amounts gurgling out her throat).

Ugly.  That the jury votes for the death penalty is not a surprise.

Riverside (Moreno Valley).  1995.  The scene of some pretty dark stuff.

U.S. v. Anderson (9th Cir. - Dec. 19, 2013)

Roosevelt Anderson sells 350 copies of fake Adobe software and makes around $70,000 as a result.  The federal court sentences him to two years in prison.

I presume I need not mention what you have to do to be sentenced to two years of prison in state court.  Suffice it to say that it's a lot -- lot -- more severe than lamely selling some counterfeit software.

Wednesday, December 18, 2013

Los Angeles USD v. Garcia (Cal. Supreme Ct. - Dec. 12, 2013)

Despite my general approval of certifying state law questions, as I said a while back, I'd have elected to decline to answer this question certified by the Ninth Circuit.

But one needs no reminder to recall that my vote counts for absolutely nothing.  The California Supreme Court decides to answer the question.  Doing so in a unanimous opinion.

The certification process took approximately two years from the date the question was certified to the date it was answered.

Imagine how long it might take if the question was a hard one.

Tuesday, December 17, 2013

Long Angeles DCFS v. Superior Court (Cal. Ct. App. - Dec. 17, 2013)

Read the first two sentences of this opinion and tell me if you can guess which way the Court of Appeal is going to come out:

"The Department of Children and Family Services (Department) seeks a writ of mandate to reverse respondent court's order dismissing a petition filed under [Cite]. Respondent court dismissed the petition, finding that a two-year-old male, S.G., was not at substantial risk of sexual abuse by S.G., Sr. (father), even though father was convicted of sexually assaulting young boys on two separate occasions, was civilly committed as a sexually violent predator (SVP) for almost 13 years after his 7-year prison term, and discontinued any sex offender treatment after his release in 2009."

Yeah.  You guessed it.  Father isn't going to win this one.

Which means he doesn't get to live with his child.

P.S. - There are a ton of sex offender/SVP/dependency cases in the Court of Appeal.  But it's memorable -- because it's rare -- that you see the words "Muslim" and "sex offender" in the same opinion.  Here, one of the reasons the father got out of prison (after serving his time and then another dozen additional years for his "civil" commitment) was because he adhered to the Muslim faith while in prison.  And one of the reasons the Court of Appeal expressly mentioned as a basis for taking his son away from him was because the father no longer practiced the Muslim faith.  Pretty unusual stuff.

People v. Nguyen (Cal. Ct. App. - Dec. 17, 2013)

Perhaps you zoned out during your first-year criminal law class.  No matter.  You went into civil law anyway.  Or you dealt with more substantive offenses.  No loss on your end.

The Court of Appeal, unfortunately, does not have an equivalent luxury.  They have to go into excruciating detail about the subtle distinction between "larceny by trick" and "theft by false pretenses".  A distinction that may be material in terms of punishment and instruction, but that is otherwise a remnant of history that really doesn't matter in the slightest.  Law professors pouring over the development of common law crimes in the seventeen century may be fascinated.  Everybody else just has to deal.

For what it's worth, here's the answer.

Monday, December 16, 2013

Palagin v. Paniagua Construction, Inc. (Cal. Ct. App. - Dec. 16, 2013)

Cases are hard when the statutory language conflicts with legislative history.  Or the text conflicts with the purposes of the statute.  Or the legislative history conflicts with public policy.  There's lots of stuff that goes into statutory interpretation, and sometimes sorting out what's dispositive isn't easy.

But I don't think I've ever seen a case in which the right result was as clear as it is here.  The statutory text is totally unambiguous.  It says that "As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award.”  There's no doubt that you've got to file a bond first, and that it's a precondition to filing the appeal.

The Legislative history is similarly transparent.  Under a prior version of the statute, which was unclear about when a bond needed to be posted, the Court of Appeal held that the trial court had discretion to extend the deadline for filing a bond.  In response, the Legislature expressly changed the statute -- stating that the Court of Appeal's decision was "contrary to the purposes" of the statute -- with the express goal of overruling that decision and squarely requiring a bond in all circumstances prior to the filing of an appeal.

Public policy is similarly served by such a rule.  As the Legislature noted when it amended the statute, were an employer allowed to delay filing a bond after it files an appeal, that might result in the employer using that time to wind down its business so there's no money left to pay the employee.  Which was (1) exactly what had transpired after the Court of Appeal's ruling, and (2) was why the Legislature amended the statute:  to stop that potential abuse.

In short, the right result is crystal clear.

Notwithstanding all of the above, the trial court thought it was totally okay to allow an appeal to go forward as long as it eventually posted a bond.

Fortunately, the Court of Appeal saw things the right way.

It's so easy to write an opinion when things are this easy.

Lee v. Intelius, Inc. (9th Cir. - Dec. 16, 2013)

It's amazing to me that an attorney -- or anyone else -- can argue with a straight face that the consumers in this class action case actually knew what they were buying.  As opposed to what I'm infinitely confident is in fact the case:  A clever strategy designed to confuse consumers into accidentally buying something and yet making enough easily overlooked disclosures so that the contract "appears" legal and will thus be enforced.

The Ninth Circuit and the district court take the right approach.  This is just a decision on whether the consumers are compelled to arbitrate.  But I feel pretty good about how this case is ending up on the merits as well.

Friday, December 13, 2013

Rollins v. MERS (9th Cir. - Dec. 12, 2013)

MDL cases are often a mess.  The whole MERS (Mortgage Electronic Registration System) stuff is also a mess.  So it's perhaps not surprising that when the two come together, it's a total mess.

That's especially the case when, as here, the MDL court splits up causes of action, changes its mind, makes confusing (and/or arbitrary) distinctions, and the like.  Ugh.

For these reasons, I can see why the panel here is somewhat uncertain as to whether it has appellate jurisdiction, and hence remands for more details.

But, to be honest, it's not actually confusing in the slightest.

There was absolutely no way the MDL court was trying to make a Rule 54(b) finding -- and hence permit appellate review -- when it dismissed the causes of action at issue here.  That would require it to expressly state that there was no just reason for delaying appellate review.  That's a basic requirement of Rule 54(b).  Even (smart) first-year law students know it.  The fact that the MDL court didn't even try indicates that it wasn't trying to follow Rule 54(b) in the slightest.

So the Ninth Circuit shouldn't be "confused" about whether the MDL court "intended" to invoke Rule 54(b).  It didn't.

Now, what the Ninth Circuit may really be saying is that it thinks that there's no just reason for delay, and that the not-entirely-on-top-of-it MDL court should have realized that it could (and needed to) invoke Rule 54(b) in order to permit appellate review of this otherwise interlocutory dismissal.  Hence the Ninth Circuit's going to effectively remind the MDL court of that fact -- and give it an opportunity (once again) to invoke Rule 54(b) -- in the guise of seeking "clarification".

If that's what the Ninth Circuit's doing, well, shucks, I totally understand that.

Though that's not what the Ninth Circuit says it's doing.  Not surprisingly.  Because that's not the way the system's supposed to work.

So I don't think this case is confusing at all.  Seems pretty clear to me.  Both on the surface as well as under it.

People v. Freidt (Cal. Ct. App. - Dec. 12, 2013)

Yeah.  I agree with the Court of Appeal.  The process of infinitely "revoking" probation for people who are making agreed-upon payments of their restitution order ain't right.  Regardless of how routine this apparently is in some courtrooms.

Thursday, December 12, 2013

People v. Contreras (Cal. Supreme Ct. - Dec. 12, 2013)

Maybe the jury would have sentenced you to death anyway.  Despite your relative lack of criminal history. You shot a store clerk, after all.

But here's the thing I think that solidified the needle:  When, after shooting the clerk once, you approached him as he was prostrate the ground and said:  "“I told you I was going to kill you.”  And then kicked him and shot him a second time.  In the back.  With a shotgun.  With a smile on your face.

Conviction and death sentence unanimously affirmed.

Dzakula v. McHugh (9th Cir. - Dec. 11, 2013)

I got so excited when I read this opinion by Judge Graber.  It's the latest installment of a two-part series about what you do when a person who files for bankruptcy wrongfully fails to disclose on their bankruptcy schedules a pending lawsuit (which is an asset of the estate).  Do you dismiss the lawsuit on judicial estoppel grounds?  Or do you let it go forward?

What I loved about this dispute was that, earlier this year, I had written an extremely long post about this exact issue.  Prompted by the issuance of the Ninth Circuit's first opinion on this issue (back in July).  Among other things, my post anticipated the present holding, and argued that distinguishing the earlier case (in an appropriate factual setting) would be a good idea.  Which is exactly what Judge Graber does here.

Or so I thought.

When I went back to read (and link to) my earlier post, I discovered what has become all-too-common in my busy-but-way-fun career.  Had I written nearly 1000 words or so on the topic?  Yes.  Did that make it overly long?  Certainly.  Yet I was still not finished.  Tired.  But still not finished.  So I left the post in "draft" form.  To be finished and posted another day.

A day that never came.

So I was a tiny bit disappointed in that.  Because I had spent so much time on the thing, and thought that I had some tolerably decent points.  Yet it was all for naught, since I never actually finished the thing.

Though, to be honest, I'm not nearly as bummed as one might initially think.  For one thing, the most recent opinion did the right thing, so as far as "advancing the law" goes, no blood, no foul.  Plus, were I to be totally honest, the most fun part for me about writing these things is figuring the stuff out for myself.  Lots of this stuff is incredibly complicated.  It's often a challenge to figure out what the right rule is.  Especially since (as faithful readers well understand) the fact that a court has decided X in no way conclusively determines -- to me, at least -- that X is right and Y is not.  The interesting part is thinking about whether X or Y is right, not (to me, anyway) necessarily trying to convince others.  The law's a puzzle.  Trying to figure out the puzzle is the part that's the most fun.  Taking a picture of the finished puzzle and showing it to others is a bonus, to be sure.  But when time and other constraints don't allow that to happen, so be it.

Still, I'd by lying if I said that a part of me wished I had completed the thing.  Because the underlying debate (in the first case) between Judge Graber -- who wrote the majority opinion -- and Judge Bybee (who wrote the dissent) was, and remains, awesome.  Both sides made (and make) great points.  It's the battle of two very bright people mutually articulating eminently reasonable arguments.  Yet coming out opposite ways.

Ironically enough, in the present opinion, it's Judge Graber -- the author of the current opinion -- who cuts back on the scope of Judge Graber's earlier (split) opinion.  Not in a way that's results-oriented or that makes no sense.  But rather in a way that's both principled as well as designed to achieve some of the same objectives discussed in Judge Bybee's earlier dissent.

Which I love.  Especially since I found several of those points pretty powerful.  Even at the time

Seeing how law develops is sometimes like watching sausage being made.

Other times, it's a beautiful thing.

Like here.

Wednesday, December 11, 2013

Hunter v. CBS Broadcasting (Cal. Ct. App. - Dec. 11, 2013)

I'm glad that the Court of Appeal decided to publish this opinion.

Because it's often good to get erroneous holdings out in the open.  Including this one.

I understand where the Court of Appeal is coming from.  But I think the decision is nonetheless clearly wrong.  Both doctrinally and as a matter of policy.

It's a straightforward issue:  Does the anti-SLAPP statute apply when CBS allegedly discriminates against an old, not-very-attractive white guy by refusing to hire him as an on-air weather news anchor because it instead wanted young, quite-attractive women?

Let me just say at the outset that I find it immensely plausible that a news station would, in fact, refuse to hire old, fat white guys in favor of young, hot women for this particular job.  I'm, indeed, exceptionally confident that this happens.  Pretext notwithstanding.

But the issue is whether such alleged discrimination is an act in furtherance of the new station's right to free speech.  The Court of Appeal thinks it is.  Hence the old guy's got to prove his discrimination case at the outset, and is liable for attorney's fees if he fails.

I think that's clearly wrong.

Just because you're running a news station doesn't mean that everything you do -- including discriminating (allegedly) against various protected groups -- entails conduct "in furtherance" of your right to free speech.  The present case is a perfect example.  There's no reason why you need a hot young woman in order to get your message across about whether it's going to rain tomorrow.  The fact that you're engaged in corporate speech doesn't mean that everything you do is somehow immunized and protected by either the Constitution or the anti-SLAPP statute.  The usual rules instead apply.

Were I on the California Supreme Court, I'd take this one up.  It's pure error correction, to be sure.  But it's sufficiently wrong -- and sufficiently pernicious -- that it's worth correcting the Court of Appeal.

It's a forthright, and sensibly motivated, opinion.  But it's nonetheless still wrong.

In Re Marriage of LaMoure (Cal. Ct. App. - Dec. 11, 2013)

If you ever wonder why some people hate attorneys -- including but not limited those previously married to them -- take a look at this case.

It's the story of a years-long effort by sole practitioner (and USC Law graduate) Nathan LaMoure to avoid paying attorney's fees to his ex-wife.  Principally by trying to hide assets in a pension account.

It doesn't work.  But boy did it cause the parties to expend a lot of time, effort and (further) attorney's fees.

It's also not LaMoure's first shot at avoiding paying his former spouse.  Witness this opinion from 2011.

LaMoure can still practice law.  At least currently.  He was suspended in 2010 for failure to pay child support and in 2011 for failure to pay Bar dues.

So if you want Newport Beach attorney who knows how to game -- albeit unsuccessfully -- the family law system, feel free to look him up.

But he's not exactly giving other attorneys a great reputation.

Tuesday, December 10, 2013

U.S. v. Olsen, Part Two (9th Cir. - Dec. 10, 2013)

So now you've had the chance to read Chief Judge Kozinski's dissent.  Whatchathink?

I'm less interested in its merit -- though that's admittedly intriguing -- than what it says about those who wrote or joined it.  It is, as I said, a powerful statement.  With truly a "take no prisoners" approach.

For that reason, it's perhaps not surprising that it obtains the express concurrence of some other "true believers" on the Ninth Circuit.  Judges who truly fear the power of the state that can be marshaled in the support of criminal charges.  Judge Pregerson.  Judge Reinhardt.  Even Judge Thomas.  Plus Judge Watford, a relative newcomer.  That the latter joins Judge Kozinski's powerful expression may say something about what we'll see from him going forward.

By contrast, lots of other judges -- even those who might well be sympathetic to Judge Kozinski's views -- don't expressly join the thing.  It's too strong.  Too outraged.  Too "in your face".  That says a lot about those judges as well.

It's a matter of style.  Though it's simultaneously more than that.

Which got me thinking a little bit about the underlying merits.  Not whether there was a Brady violation here, or whether the error (if any) was harmless.  But rather about a related point that Judge Kozinski makes.  A section of the dissent that argues that prosecutors have powerful reasons to withhold even evidence that they know might be exculpatory because (1) they're rarely caught, (2) even when they are, there's often not any consequence, because the Court of Appeals affirms based upon the alleged "overwhelming" evidence against the defendant (i.e., harmless error), and (3) that even if (1) and (2) aren't true, the worst that transpires is a retrial at which the evidence gets disclosed.  No biggie.

I think (1) is clearly true.  Number (2) is also demonstrably the case.  Though my sense is that prosecutors are probably less likely to withhold exculpatory evidence if guilt really is crystal clear, since in those cases, it's not worth it -- reputationally, results-wise, or otherwise -- to withhold evidence, since the defendant is likely to be convicted either way.  And number (3) is surely the case.  Though one might well add that any conviction-preferring prosecutor would nonetheless not take absolute solace in (3) since s/he'd be running the (admittedly low) risk of an acquittal at the first trial, so it's not like "jumping to a retrial on remand" is the preferred approach.

The net result is that Judge Kozinski is probably correct when he says that the institutional constraints that reinforce the Brady rule are pretty darn weak.  For this reason, he -- and others -- might perhaps have very legitimate concerns that the judiciary needs to keep a very sharp eye out in this area, as it's the only effective bulwark against potential prosecutorial tyranny (or at least injustice).

But it struck me that there's one other substantial thing at work here as well.  Even apart from normative morality (and potential prosecutorial desire to follow the law).  Which is culture.

The judiciary (amongst others) constantly hammers away into everyone's head that while prosecutors are at liberty to use hard blows, they must employ fair ones.  Don't convict someone you know's innocent.  Don't break the law.  Don't suppress evidence.  Stuff like that.  That's an inherent part of having prosecutorial power.  The restraints -- even if they're only internal and/or cultural -- that come alongside this power.

I have a keen sense, however, that Judge Kozinski (inter alia) doesn't think that's a very effective limitation.

There are some reasons for that.  Related to background, temperament, ideology, etc.  All of which I want to put aside for now.

Rather, what struck me is how there probably isn't, in fact, as nearly an effective cultural constraint against state-sponsored Brady violations as we'd hope (or expect) there to be.  We'd want prosecutors to show the utmost respect for the law.  To play their roles aggressively, but with inscrutable fairness.  To never -- and I mean, never -- knowingly depart from the law.  To not do those sorts of things that, for example, seem fairly clearly to have been done here; for example, not calling someone important back for months (or at all) for fear they'd be telling you about some exculpatory evidence that you'd then have to reveal.  Despite the fact that -- and here, Judge Kozinski's absolutely right -- if that same caller was expected to have evidence that would be useful against the defendant, you could bet your life on the fact that the prosecutor would call her back repeatedly.  Within an hour.  Or less.

I can imagine a prosecutor's office that was totally, scrupulously ethical.  I'm confident that there are, in fact, prosecutors who were (and are) entirely that.  I know some of them personally.

But I'm also exceptionally confident that this is not a uniform rule.  That there are plenty of offices out there with a culture that's more "aggressive" and adversarial.  Where hard blows are not only fully expected, but if some of them end up being below the belt, well, that's the nature of the beast.  No big deal.  At least you hit hard.  That's the important thing.

Why is that?  Why is the cultural practice so far (at least in individual cases) from what we'd all both want it to be as well as systemically proclaim it is?

Lots of this stems, I think, from the view of criminals as "others".  I can't tell you how many officers, agents and even prosecutors have expressly used the word "scum" to me when referring not only to individual offenders, but to everyone convicted (or even arrested) for an offense as a group.  That's pretty informative.  Particularly when, as with me, they're using this language with someone whom they've just met or who they have no reason (one way or the other) to think shares this view.  If that's what they say in public, imagine what they think in private.  Or in a self-selected group of those like-minded.

But I think it also has a lot to do with culture and self-selection.  People aren't chosen to go to law school randomly.  They elect to do so.  Those people tend to like to argue.  To be aggressive.  To have -- for lack of a better phrase -- a "win/lose" mentality.  Giving the other side evidence makes it more likely for them to win and hence for me to lose.  That's bad.  So I'm not going to do it.  Unless I'm forced to.

That's true on the civil side, and it's undoubtedly true on the criminal side as well.  Regardless of whatever mantra we try to pound into the heads of individual prosecutors.

Plus, whatever mantra you chant, results speak for themselves.  Prosecutors are expected to win.  A fact only enhanced by the reality that they usually do.  Winners get respect.  Winners get promoted.  Sure, there may be truly "ethical" prosecutors in the office who are appreciated and liked.  Maybe who even rise to the top.  But when you're expected to win, and see winning as almost uniformly entailing justice (for the system, for the victim, and for society as a whole), it shouldn't be surprising if we found that prosecutors may not take to heart our sincere normative claims about turning over evidence to the other side.  We grow up in a culture that keenly understands winning and losing.  More subtle preferences, like those associated with what we call "justice", are precisely that.  More subtle.  Hence harder to inculcate.  However important.

I'm not sure that, in the end, I'm as passionate as Judge Kozinski.  Is he right about the danger of the state?  Absolutely.  Is he right about lots of the incentives?  I think so.  Strongly.  Indeed, the more I think about it, the more correct he appears to be.

Though there's another side as well.  A side that doesn't negate the wisdom of Judge Kozinski's opinion.  But that may nonetheless temper it.  That I see as well.

But I still think it's worth thinking a lot about the culture of prosecutorial offices, as well as others in the law enforcement community, and how that works alongside the doctrinal principles the judiciary develops and applies.  Judge Kozinski's opinion is a darn good start in that regard.  Though I think there's lots more to be said, and thought, on this topic as well.

Interesting stuff.

U.S. v. Olsen (9th Cir. - Dec. 10, 2013)

I'm pondering this dissent from the denial of rehearing en banc at some length, and hope to have more to say about it in a little bit -- perhaps later this afternoon.

In the meantime, simply enjoy.  It's another classic Judge Kozinski dissent.  Strong.  Vituperative.  Powerful.  Full of anecdotes and current events.

Whether you agree with him or not, the guy definitely has a style.

Monday, December 09, 2013

People v. Jackson (Cal. Ct. App. - Dec. 3, 2013)

Read this opinion.  See the evidence that the trial court -- and the Court of Appeal -- allowed to be admitted.  Then ask yourself this question:

Imagine that a retired police officer started up a similar business and wanted to offer nearly identical "expert" testimony on behalf of the defendant.  Which basically -- as here -- just summarized the evidence introduced at trial and explained, in essentially the same way that counsel will at closing argument, why this evidence is in favor of the defendant and establishes that he's likely not guilty.

What are the odds that this testimony would be allowed?

I see very little benefit in allowing this sort of testimony.  Including but not limited to the testimony admitted here.  And lots of dangers.

Notwithstanding the Court of Appeal's opinion.

Friday, December 06, 2013

In Re Brianna M. (Cal. Ct. App. - Oct. 24, 2013)

Here's another wonderfully uplifting family law case:

"Brianna (born Mar. 2005) is the biological daughter of Stephanie P. (mother) and Francisco. Brianna‟s half-brothers, Ronnie H. (born Mar. 2007) and Anthony H. (born Apr. 2008), are the children of mother and Ron. Brianna‟s half-sister, L.G. (born Dec. 2011), is the daughter of mother and Jonathan G. (Jonathan).

On June 6, 2012, the Los Angeles County Sheriff's Department conducted a parole compliance check of Jonathan at the family home. Jonathan and mother took the children into one of the bedrooms and barricaded themselves in it. When deputies entered the room, they discovered a loaded gun accessible to the children and 'deplorable' home conditions. The home 'was extremely dirty and messy, [a] non-operational dishwasher was in the bedroom, the home had a foul odor, trash [was] strewn throughout, roaches [were] everywhere, dead flies were in the refrigerator and animal feces [were] scattered throughout. It was also reported that the child [L.G.] was dressed in a heavily urine soiled blouse and she too also had [a] strong foul odor to her.' The sheriffs arrested mother and Jonathan and detained the children.

The Department of Children and Family Services (DCFS) filed a juvenile dependency petition for Brianna and her siblings on June 11, 2012. It alleged: Jonathan hit and choked mother in the children's presence, and such violent conduct in the children's presence endangered their health and safety and placed them at risk of physical harm (a-1, b-2); mother and Jonathan allowed the children access to a loaded firearm and refused to comply with law enforcement requests to exit the home (b-1); the family home was in a filthy and unsanitary condition, endangering the children‟s health and safety (b-3); and mother had a history of illegal drug use and was a current user of marijuana, which rendered her incapable of providing regular care for the children (b-4)."


Thursday, December 05, 2013

Edwards v. Broadwater Casitas Care Center (Cal. Ct. App. - Dec. 5, 2013)

I'm about to demonstrate my shocking ignorance of federal bankruptcy law.  Because I agree with the Court of Appeal.

Plaintiff files a lawsuit and loses, and incurs an adverse cost award of (around) $20,000 and another adverse fee award of $160,000 on top of this.  She then files -- not surprisingly -- a Chapter 13 bankruptcy petition, alongside an appeal.  The bankruptcy court acts quickly, and confirms her bankruptcy plan, which includes paying a portion (eight percent) of the cost and fee award to defendants -- to which plaintiff didn't object at the bankruptcy stage.

But she still prosecutes her appeal.  At which point the defendants move to dismiss.  Claiming res judicata as a result of the bankruptcy confirmation decision.

The Court of Appeal refuses to dismiss.  I think that's right.

Justice Turner's opinion is a little confusing in parts because he says things like there's no res judicata because the validity of the claim was never "actually litigated" in the bankruptcy court.  Stuff like that conflates the two types of res judicata -- issue preclusion ("collateral estoppel"), where we do care about that requirement, as opposed to claim preclusion ("true" res judicata) where we don't.  Since we're talking about the latter here, it doesn't matter if the thing was actually litigated (which it wasn't), only if we require it to be.  So for ubergeeks like me, I think the language and analysis here is a tiny, tiny bit off.

But on the merits, yeah, I think Justice Turner is right.  Just 'cause the bankruptcy court says you need to pay $20,000 (or whatever) doesn't mean you actually have to pay it.  You still get to litigate whether you actually owe the debt.  You're not required to do that in bankruptcy court.  You can do that -- as here -- on appeal.  Which is where we'd want these things adjudicated in the first place.  It's not like the bankruptcy court has either the time or expertise to decide whether a state civil appeal is meritorious or not.  Ergo the appeal goes forward and doesn't get dismissed.  Which is precisely what the Court of Appeal holds.

So it seems like this result is right.

That said -- and, again, here I'm about to demonstrate why I don't teach bankruptcy -- I totally don't fathom how/why a bankruptcy court can/should approve a reorganization plan that involves radically nonfinal (and substantial) debts.  Take the present case.  Imagine Edwards has $180,000 in debts from the civil lawsuit, $20,000 in credit card and other debts, and $16,000 in assets.  It'd make sense to confirm a bankruptcy plan in such a setting by providing (as here) that she pays eight cents on the dollar to both -- $14,400 to the defendant in the civil suit and $1600 to the credit card company.  Boom.  Done.  Fair all around.

But look what happens if she's able to -- as the Court of Appeal permits -- continue with her appeal to try to strike the civil award.  Imagine she's successful.  Then her $180,000 debt goes away, and she still only has to pay $1600 of her $20,000 credit card debt, even though she has $14,000+ left to pay it.  Nice for the debtor, but hardly equitable.

Justice Turner's opinions gives (I think) the correct doctrinal answer to this problem, which is that plans are never actually "final" and can always be modified if assets turn out to be greater, etc.  I'm sure that's right, as the cases he cites (e.g., real property sales, sales of businesses, etc.) demonstrates.

But as a practical matter, my strong sense is that just ain't right.  A credit card company ain't going to be scanning the pages of the California Appellate Reports to see whether Edwards' appeal was successful to potentially reopen the case.  It just isn't worth it.  So Edwards is going to make out like a bandit if we don't dismiss her appeal and she's successful.  She'll have obtained the benefit of having a $180,000 debt without actually having to pay it.

That's the strongest argument in favor of dismissing the appeal.

Ultimately, however, I think this is an objection to the bankruptcy process, not what happens on the civil side.  Were I designing the bankruptcy system, or adjudicating plans, I'm not sure we should confirm plans like this one so quickly.  Maybe wait until we find out whether the appeal's successful.  Particularly when, as here, we're otherwise processing the case super quickly.  Let's first determine -- in the only place we can (the Court of Appeal) -- whether the appeal's going to be successful, and only if it's not grant defendant the type of relief they seek.  If they don't like it, they can dismiss their appeal, or their bankruptcy.  Or simply wait.  I'm not sure the urgent need for a plan outweighs the equities in a case like this.  Particularly where, as here, the disputed debt -- which we know for certain is disputed -- is a substantial portion of the debts.

But I nonetheless agree with the Court of Appeal because, as it happens, we're required to take the federal bankruptcy system as we find it.  Nothing a state appellate court can do to change was federal bankruptcy judges do, or have done.  The plan's already confirmed.  Even if it shouldn't have been.  At least in theory, it can also be reopened.  Given these realities, there's no res judicata.  Appeal goes forward.

U.S. v. Kahre (9th Cir. - Dec. 5, 2013)

I couldn't be happier about the result in this case.

At least one of the sentences is quite high, and the others are not nominal.  Rightly so, in my view.

Nevada.  Often still the Wild West.  At least as far as paying taxes goes.

Wednesday, December 04, 2013

People v. Abundio (Cal. Ct. App. - Dec. 4, 2013)

Perhaps continuing my theme from earlier today, opinions like this one -- which also came out today -- tend to somewhat frustrate me.  (I originally wrote "hack me off," but that's perhaps too harsh.  Maybe it's more accurate to say that opinions like this simply seem less forthright than I would prefer.  Strongly.)

Here's how Justice Whillhite introduces the opinion:

"In an unprovoked, premeditated attack, appellant Jose Abundio stabbed marijuana dealer Timothy Wong to death in order to rob him of marijuana appellant could not afford to buy. After appellant’s first jury deadlocked and a mistrial was declared, a second jury convicted him of first degree murder. The jury also found true the special circumstance allegation that he committed the murder in the commission of a robbery, and the allegation that he used a knife. [Cite] The trial court sentenced him to life in prison without the possibility of parole, plus one year. On appeal, he contends that his sentence constitutes cruel or unusual punishment under California Constitution, article I, section 17, and [Cite]. We disagree and affirm the judgment."

Well, that seems obviously correct, right?  It's a murder, for goodness sake.  Of course LWOP is okay.  Even plus one year.

What follows this introduction constitutes a full half of the opinion.  All the facts.  The murder, the blood, etc.  And, dude, of course, there's totally no (good) reason for the murder.  Senseless.

You've got some stuff in there that makes the defendant marginally sympathetic.  Yes, he stabbed the guy.  More than once.  But didn't seem like he was actually trying to kill him.  Plus, right after the murder, when a detective happens to be in defendant's neighborhood, defendant walks up to him with his hands raised and says sua sponte "I’m sorry. I did something really bad and wrong. I’m sorry and I’m scared.”  Then during an interrogation promptly admits everything, saying:  "'I didn’t really mean to do it but when I did it, I – I couldn’t believe I did it ‘cause I was just – I was shocked, I was scared, I ran.' Detective Leslie asked appellant if he went home after it happened, and he replied, 'No. I was out and running around ‘cause I
didn’t know what to do. I was – I didn’t even believe I did – that I even did it myself. I was just scared. I didn’t even – I didn’t mean to hurt anybody.'"

Of course, the point is, he did do it.  That's murder.  How absurd that the guy thinks his sentence is even potentially unconstitutional, right?

Then the opinion continues with some legal analysis.  Murder is bad.  Etc.  Long sentences are okay.

The text of the opinion spans 13 pages.  It's only in middle of the 11th page that the Court of Appeal states that defendant's 18 years old.

Now you understand the argument.  Why defendant says LWOP isn't okay.  Because the California Supreme Court has squarely held that you can't sentence a 17-year old to LWOP.  Even when he shoots someone nine times in a deliberate (and successful) attempt to kill him.  Defendant here is basically the same age.  But has nonetheless reached perhaps a "magic" number, 18.  Now you understand the argument.  As we reach the end of the 11th page of this 13-page opinion, only now is the debate (and analysis) actually joined.  Or even introduced.

You shouldn't have to read halfway through an opinion to figure out what it's about.  We shouldn't try to indoctrinate a reader with half an opinion's worth of persuasion before introducing the hard part of the case.

Let's instead be honest -- from the outset -- what the case is about.  Does it matter whether a defendant is 17 or 18 when we decide to send him to prison for life without the possibility of parole?  Is drawing that admittedly somewhat (indeed, largely) arbitrary line okay?  How is the relevant line, if any, implicated in the present case?

Confront things in an honest, and straightforward fashion.  Briefs are advocacy pieces.  Opinions aren't.  We should strive to be more forthright.  Which includes not hiding the bad facts -- and, indeed, the relevant issue -- until halfway through.

P.S. - I just wanted to add the same thing's true for good briefs.  Be upfront about things.  But it's even more frustrating when the contrary is done by a neutral judge.

U.S. v. Hullaby (9th Cir. - Dec. 4, 2013)

Judge Wallace is right.  As far as he goes.

But his relatively straightforward opinion doesn't address at all what I think the central issue is here.

It's true that the police can use unsavory confidential informants.  It's true that the police can give them a good deal.  It's true that the police can continue to use even informants who continue to commit crimes during their "use" by the police.  All true.  None of this -- even together -- makes the government's conduct sufficiently outrageous to violate the Due Process Clause.  At least in contemporary society.  We're used to it, we're okay with it, it's fine.

But what Judge Wallace's opinion doesn't highlight is the fact that this is a reverse sting that set up fictional robberies of purported stash houses.  So on the one hand, you've got an undisputed criminal who's facing an 115-count indictment, and life in prison, for actually dressing up as the police and battering down doors and using AK-47s to rob drug dealers by raiding stash houses.  That guy gets . . . wait for it . . . four years of probation.  On the other hand, you've got someone -- the defendant -- who may not have ever in fact raided a stash house, but who nonetheless is persuaded to do so by a fictional raid set up by the informant.  That guy gets a boatload of time in prison.  Even though there were, in fact, no drugs, and no raid.

So, to summarize:  Actual Invasions = Probation.  No Factual Invasions, Only Pretend = Prison.

It's that anomaly that seems stark.  Same crime.  But one's real and one's fake.  Yet the former not only gets a benefit, but essentially a free pass.  Just so we can stop fake crimes that would never have transpired in the first place but for the decision of the informant, with the active assistance of the government, to set them up.

I understand giving a defendant a deal in order to testify against others.  That's the nature of the beast in the modern era of plea bargaining.  (I admittedly believe that, at some point, history will not judge this practice especially favorably.  But that's another issue.)  You're not going to get a court to strike it down.

But at some point, especially with fake crimes, isn't the contrast in fact pretty outrageous?  Especially as the crimes get -- as here -- more severe?

Let's change the facts just slightly.  Make it murder.  The informant has killed twelve people instead of previously raiding twelve stash houses.  He's facing (as here) life in prison.  He agrees to go to bars and pretend to be a hitman, chatting up patrons who seem unsavory.  He stumbles across someone who chats about how he hates his spouse, the informant volunteers to kill her for $10,000, the patron agrees, and the police arrest him.  Patron gets 50 years in prison; informant goes free.

Wouldn't that, in fact, be outrageous?  I think we should rightly go ballistic about that.  Serious crimes.  Same crimes.  One real, one fake.

That's incredibly close to this case.  The only difference being that the informant's offenses here involve a huge (and deliberate) risk of murder rather than -- fortunately -- actual murders.

So that's the part that's the at-least-somewhat-outrageous part.  The nature of the crimes and the fact that only one side of the equation involves "real" ones.  The side that doesn't get punished.

That's the part that Judge Wallace's opinion doesn't really discuss.  Which gets short -- actually, no -- shrift.

Which is not to necessarily say that the Ninth Circuit should have reached a different result.  All of us are, at least in part, a product of the era in which we live.  Including but not limited to judges.  Maybe the social and judicial consensus is that once in for a penny, we're in for a pound.  So there's no qualitative difference at all between fake murders, fake stash houses, and fake jaywalking.  Informants can set up all of the above.  We are okay with all of it.  As well as the resulting deals.

But when we write opinions, we should deal with the hard stuff.  We should recognize -- and address forthrightly -- the real arguments on the other side.  We shouldn't try to make things look simple when the reality is a lot more complicated.  When things are gray -- as they are here -- we shouldn't try to make them look black and white.

That's my critique here.

Tuesday, December 03, 2013

Hagan v. City of Eugene (9th Cir. - Dec. 3, 2013)

Everyone on the panel -- Judge Alarcon (who authors the opinion), Judge Milan Smith, and Judge Hurwitz -- is on board for this one.  So why am I really troubled by it?

The Ninth Circuit holds that an employer can permissibly retaliate against a police officer for engaging in speech designed to protect citizens.  Which -- according to the unanimous verdict below -- is exactly what transpired here.  But the opinion concludes that, as a matter of law, the Eugene Police Department was able to get away with it.

Why?  It's not because the police officer's speech was unconnected with a matter of public interest.  For it indisputably was.  Brian Hagan was a K-9 officer occasionally deployed with the Eugene SWAT team, and he started complaining when -- wait for it -- the SWAT team would repeatedly accidentally shoot people.  One dude accidentally shot another SWAT team sniper.  Another accidentally discharged his weapon when he was pulling the pin on a grenade (!).  Another SWAT team member shot yet another officer when he was climbing over a fence.  Another SWAT guy accidentally fired his weapon during the execution of a search warrant in a residential neighborhood.

Do we care that the SWAT team doesn't seem to know how to stop shooting innocent people?  You'd think so, right?  Surely that's a matter of public concern.  For the people shot.  For the taxpayers who have to pay for their care.  For everyone.

But when Officer Hagan raises these issues, the police department was pissed that he was the "spokesperson for the majority of the complaints," and (the jury found) retaliated against him by faking performance issues to transfer him from the K-9 unit and put him on patrol.

So why does the Ninth Circuit say that's entirely okay?

Because, Judge Alarcon holds, the police department "required" its officers to speak out about public safety issues.  Because the Eugene Police Department's employee manual said that employees are "responsible for reporting accidents, faulty equipment, unsafe practices of fellow employees, and/or unsafe conditions of work areas to their supervisors,” Office Hagan's speech was now "part of his job," and hence (at least in the Ninth Circuit's view" no longer a matter of public concern.  It's now not protected First Amendment speech.  So we can demote you, fire you, or do whatever else you'd like when you raise these issues.

Does this strike anyone else as a profoundly deleterious principle?

Look, it's not that I don't understand the complexity of the underlying First Amendment issue, or the practical difficulty of drawing lines.  We don't want to call every word that a government employee utters the exercise of First Amendment speech.  If the press secretary for the Governor gets up at a press conference and starts insulting his boss, saying how the Governor sucks, I get it, we can fire the guy.  Yeah, he's got the ability to express his opinions.  Just like every other citizen.  But when the speech interferes with his work -- when his entire job is to make a person look good -- the employee's free speech rights get subordinated.  I get that.

For that reason, I understand the need to distinguish between "work-related" speech, on the one hand, and other types of speech.  Something that's not always easy.

But when a police officer is talking about other officers shooting innocent people, I hardly think that no longer entails protected speech about a matter of public concern merely because the employer has (smartly) put in its employee manual that it's part of the officer's job to tell his supervisor about such conduct.  Imagine, for example, that Officer Hagan found out that the department had begun summarily executing drivers caught speeding, and started complaining about it -- perhaps threatening to go to the press if it didn't stop.  But his supervisors enjoyed the sport shooting of motorists, so retaliated against Hagan by firing him.  Surely that's not permissible, right?  Yet under the Ninth Circuit's holding, it would be.  As a matter of law, no less.  The speech involved something related to work, and the department's employee manual almost surely would contain instructions requiring employees to report this stuff.  Ergo no rights.  Let the games continue!  All those who oppose shall be demoted!  Sounds like a wonderful principle of constitutional law.

It seems to me that we should be more protective of matters of public concern.  Particularly when, as here, the matters are really, really important.  Yes, that requires drawing lines.  Some of which will be drawn by jurors.

But I'm not entirely bummed by that.  Jurors represent the community.  If they think an employee is dealing with purely internal matters, they can decide the speech isn't really important.  Or, in an appropriate case, when the judge thinks that this is clearly just complaining about part of one's normal job, the case can be bounced at summary judgment.

But when an officer complains about the SWAT team accidentally shooting people left and right, and when a jury decides that the department retaliated against the officer who had the temerity to challenge the "thin blue line" that might be casually indifferent to this practice, I'm hard pressed to see how this is okay.  How this is not retaliation against speech that relates to a central public concern.  How we're better off if there's no right to speak up when innocent people are being shot.

But I'm clearly an outlier.  Since nothing in the opinion seems to express any concern in the slightest about the result reached -- as well as the legal reasoning -- articulated herein.

Monday, December 02, 2013

In Re Perdue (Cal. Ct. App. - Dec. 2, 2013)

I'll try to write an opinion that comes to the same conclusion as this afternoon's opinion from the Court of Appeal, but that's a little bit more forthright.  Here goes:

"Defendant was a felon and had a bulletproof vest ("body armor"), which is itself a felony.  So he was sentenced to six years in prison.  He says the law's void for vagueness.

He's got a point.  The statute says that people convicted of violent felonies can't possess "body armor" as that term is defined by Section 942 of Title 11 of the California Code of Regulations.  Through a complicated series of cross-references, the statute basically provides that felons aren't allowed to own or possess bulletproof vests of the type that police officers wear.  The regulations for which establish an incredibly detailed series of ballistic tests and other provisions designed to ensure that the vests that we give to cops actually work.

Which makes sense.  But it also means that if you're a felon, you're only prohibited from wearing "good" (e.g., tested-and-approved-for-police) bulletproof vests, not crappy -- or simply inferior or untested -- ones.

Defendant's totally right when he says that this statute means that a layperson can't tell whether he's violating the statute or not.  Not even a sophisticated person -- much less a regular person -- can tell whether a particular jacket qualifies as 'body armor' under the statute.  That's usually fatal.  As the Supreme Court has repeatedly said, a statute has to be definite, and tell people in certain terms what is permissible and what's not.  That's a big component of the Due Process Clause.

But the reality is that situations and circumstances matter.

Yes, the Supreme Court has struck down statutes that prohibited 'loitering' and the like on Due Process grounds.  'Cause no one can know what that really means.  Ditto for laws that require that doctors dispose of fetal remains in a 'humane and sanitary manner'.  Requires guesswork.  Not constitutional.

But this case isn't about loitering, which we're okay with (and sometimes even like).  Or abortions, which entail a constitutional right.  It's about body armor for violent felons.

Context matters, my friends.  Which is why the Supreme Court has taken a certain approach to, say, loitering statutes, and yet has applied these exact same doctrinal principles in a slightly different fashion to things like, oh, 'drug paraphenalia' and the like.  And guess what?  The judiciary has an even more favorable attitude towards bongs than it does towards a violent felon wearing a bullet proof jacket.

So, yes, "We'll know it when we see it" isn't a sufficient principle of constitutional law.  It doesn't ratify a statute challenged as being impermissibly vague.

Except when it does.

So were you surprised when the California Supreme Court upheld DUI statutes against a vagueness challenge?  Of course you weren't.  Can an ordinary person tell the difference between .10 (or .08) and, say, .07?  No.  They can't.  The statute's 'vague' to that extent.

But we don't like drunk drivers.  We're concerned that innocent people -- perhaps ourselves, even -- might be swept up by the police if we permit statutes that criminalize "loitering" or "vagrancy".  But once we start dealing with drunk drivers and the like -- and especially when we start dealing with bulletproof violent felons -- that concern doesn't really motivate us much anymore.  Now we're going to start saying that it's your fault, not the state's.  That even though the statute's vague, it's your fault, not ours, for getting close to the line.

I hear the complaints.  This is an unprincipled rule.  It's not actually set forth anywhere by precedent.  It's not justice.

Perhaps all true.

But the truth is that our laws -- even our criminal laws -- are at times necessarily vague.  Our civil laws too, for that matter.  Which is why we have to spend a whole semester telling even our smartest students what simple 'negligence' entails.  And don't even get me started on what counts as 'obscene'.

Doctrine may not vary depending upon context, but results nonetheless do.  Could the statute here have been clearer?  Absolutely.  Should it be?  Definitely.  It's silly to define a criminal statute by reference to tests and approvals that were designed to protect police.  A bulletproof vest should be a bulletproof vest regardless of how well it stops bullets.  At least as far as the statute here goes.  As we don't want violent felons wearing any of 'em.

But the harsh truth is that we can't define a 'bulletproof vest' any more that we can define a 'knife' or a 'gun' or a 'billy club'.  The terms are unalterably imprecise.  That's the nature of human language.  It's something that we deal with all the time.  Both in the law and elsewhere.

Sometimes, that gives us serious reason for pause.  Like when we're worried that an innocent child waiting for a bus might be incarcerated for being a vagrant.

But other times it doesn't.  Like here.  When it's a violent felon saying that he should be let back out on the street because there was no proof that the bulletproof vest in his possession had actually been subjected to the relevant tests that its manufacturer would have to perform were it to be permitted to sell such equipment to a police officer.

About that, we care very little.  So the statute's not vague.  You knew it was a bulletproof vest.  You were a violent felon.  You're staying in jail.

Ironically enough, sometimes precedent is as vague as the statutes we invalidate for vagueness.  But that doesn't mean we can't explain and, truthfully, distinguish and rationalize the cases so as to come to achieve a result that we like.  When you're drinking and driving or wearing a bulletproof vest, it's on you.  When you're walking on the street or performing an abortion, it's on the state.

Conviction affirmed."

My opinion is shorter.  Maybe more direct.  But I think it encapsulates the truth behind what the Court of Appeal -- as well as other courts -- routinely do in practice.

Jones v. US Trustee (9th Cir. - Dec. 2, 2013)

As is often the case after a long vacation, the Ninth Circuit returns from its hiatus with a vengeance.  After a five-day break, the court this morning publishes over a half-dozen opinions.

Fortunately for the Ninth Circuit, some cases aren't that hard.

As I often tell my students, federal courts don't like parties who commit fraud.  That principle is true both generally and -- with particular force -- in bankruptcy court.  When a debtor deliberately lies about his assets in order to obtain a discharge, and we eventually find out about it, don't be at all surprised that federal courts come down hard on the debtor; e.g., by revoking the discharge.

Judge Milan Smith's opinion is short, cogent and entirely right.

Not hard at all.