Cuero v. Cate (9th Cir. - June 30, 2016)

Relatively harsh words from the Ninth Circuit this morning.

The majority -- Judge Wardlaw, joined by Judge Silverman -- believe that there was a plea deal (and that the state breached it).  Judge O'Scannlain, dissenting, believes that there was no deal.  The three judges are looking at the same documents and the same transcripts, yet come to starkly different conclusions.

Judge O'Scannlain's dissent starts by saying that he "respectfully" disagrees with the majority, and repeats this same word throughout his opinion.  Judge Wardlaw's opinion, by contrast, does not use that same word -- or even similar words -- when describing Judge O'Scannlain's dissent.  Instead, here's a fairly typical passage from Judge Wardlaw:

"Absurdly, the dissent attaches the very document that the court and both state and defense counsel identified as the written plea agreement as purported proof that there was no agreement. The dissent’s analysis reads like the caption 'This is not a pipe' below Magritte’s famous painting of a pipe. Even more mystifying, the dissent disregards the entire plea colloquy, transcript of proceedings, and the written plea agreement itself to reach this convenient conclusion. The dissent stands alone in its erroneous conclusion—not even the state disputed the existence of the plea agreement, until oral argument, and it waived that argument by failing to raise it in the answering brief."

Tell us what you really feel, Judge Wardlaw!  Wow.

You can read for yourself the competing options, which attach the underlying documents and transcripts as exhibits, to see which side you think is right.

But in the Ninth Circuit, it's Judge Wardlaw's view that prevails.  And she's not shy about telling everyone that she's darn confident that she -- not Judge O'Scannlain -- is correct.

U.S. v. Lindsay (9th Cir. - June 28, 2016)

I have two related comments about this opinion by Judge Gould.  One small, one larger.

Both involve the same issue:  materiality.  To be convicted of wire fraud, your false statement needs to be "material".  That's a pretty important element.  If you say something that's meaningless, even if it's untrue, that doesn't put you in prison for a couple of decades.

According to the Supreme Court, here's the relevant test for when statements are material:  “In general, a false statement is material if it has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.’”

Makes sense.  To be clear:  The false statement doesn't have to be the main thing that the victim relies upon to be tricked.  The false statement just has to have  "a natural tendency to influence, or [is] capable of influencing," the victim.

Now let's apply it to the present case.  One of many in the modern era.

Borrower applies for a mortgage.  He submits documents.  Some of the statements in those documents are allegedly false.

He wants to say that the statements at issue weren't "material" for a couple of different reasons.  First, he says that they weren't material because the lender was super happy -- indeed, wanted -- them to be false.  There's a ton of evidence (seriously: a ton) that lenders during the real estate boom didn't care at all that "liar loans" were full of lies since that way they could fund the loans, sell 'em off, and thus profit regardless of the underlying lies.  In short, the lender was an active participant in the fraud, knew that the statements were false, didn't care in the slightest (indeed, wanted 'em to be false, since otherwise they couldn't sell the loan), and hence the statements weren't material.

That's a decent defense, in my view.  With the added bonus that it happens, in a ton of cases, to be entirely true.  If I tell you "Give me your car, I'll give it back to you tomorrow," all the time winking at you, but you know full well that I'm going to rob a bank with that car and actually return the car to you in a week -- with a bundle of cash from the bank robbery "accidentally" left in the back seat -- my view is that, sure, my statement to you was "false", but there was no actionable wire fraud, because my "lie" to you wasn't material:  you knew full well it was false but didn't care in the slightest.

In many areas, that was the mortgage industry in the go-go 2000's.  Different only in form, not in content.

The Ninth Circuit nonetheless holds that a statement can be material even if the lender was totally in on it.  Judge Gould's opinion says:  "[T]hat does not mean that lenders can be victimized by intentional fraudulent conduct with impunity merely because the lenders were negligent, or even because the lenders intentionally disregarded the information in a loan application."  I agree with the former clause, but the latter seems far more dubious.  I understand Judge Gould's intuition that "Two wrongs do not make a right, and a lender’s negligence, or even intentional disregard, cannot excuse another’s criminal fraud."  But I'm not persuaded that it's in fact fraud if the lender wasn't actually defrauded -- doctrinally, if the lender's in on it, and knows/wants your statements to be false, then those statements aren't material.

Or at least it seems to me.  So "negligence" I agree doesn't cut it.  But actual fraud by the lender?! That doesn't count either?!  That seems a little off.  At least to me.

That's related to the second thing.  Where Judge Gould's opinion goes, I think, far too broadly; and, on this point, way too broadly.

Judge Gould ends his opinion by saying, essentially, that everything is by definition material.  Here's the relevant quote from the final paragraph:  "[We] hold, as a matter of law, that when a lender requests specific information in its loan applications, false responses to those specific requests are objectively material for purposes of proving fraud."

What?!  Really?

So I take out a loan application and, where it asks for my name, I write "Shaun Pat Martin," even though my middle name is actually "Patrick".  Or they ask me how long I've lived in my current house, and I write "20 years, 1 month," even though the truth is that it's been 20 years and two months.  Let's assume that none of those statements matter in the slightest to the lender:  let's say the evidence is undisputed that the lender doesn't even use my middle name when it pulls my credit and other reports (and I gave them my correct social security number anyway), so shortening my middle name couldn't make a whit of difference.  Or the missing one month of the 20 years wouldn't at all affect whether the lender would give me a loan -- which, in fact, is totally true.

The Ninth Circuit has now held that I can nonetheless be found guilty of wire fraud and sent to prison for years (if not decades), and that these meaningless statements are nonetheless "material".  On the theory that any blank that the lender puts in front of me is necessarily material "as a matter of law".  So if the lender asked me my favorite color, and I said "red" when it was really blue, that's fraud too, even though the lender put the question on there purely on a lark.

That just seems crazy to me.  As well as in stark conflict to the Supreme Court's express holding that "material" statements are only those that have a natural tendency to (or are capable of) influencing the victim.  There's no way that "red" or "Pat" has a natural tendency to influence someone, and if there's evidence -- as there would be in these situations -- that those answers in fact mean nothing to whether or not the lender makes the loan, then I honestly don't understand how these statements can at all be found to be "material" without violating Supreme Court precedent.  As well as common sense.

So, look, I understand that Judge Gould adopts his "bright-line" rule -- everything that someone asks is by definition material as a matter of law -- from an analogous case from the First Circuit that may seem to adopt precisely such a test.  But, as Judge Gould says, two wrongs don't make a right.  This test seems clearly wrong to me.  And if the First Circuit adopted it as well, so much the worse.  We shouldn't make the same mistake.

That's my view, anyway.

People v. Olivas (Cal. Ct. App. - June 28, 2016)

"A jury convicted defendant Jose Rodriguez Olivas of 17 felony counts related to his continuous sexual abuse of M.M. (minor) between 1995 and 2003."

Oh boy.  That's a serious offense.  I wonder how much time he's going to get in prison?

"The trial court imposed a 78-year determinate prison sentence for the continuous sexual assault and the forcible lewd act counts. It also imposed a consecutive indeterminate term of 75 years to life for the aggravated sexual assault counts."

That's a lot of time.

People v. Becerra (Cal. Supreme Ct. - June 27, 2016)

Defendant is representing himself (with the court's permission) for a while, but then the trial court relieves him and appoints counsel, finding that the defendant has been dilatory.  The defendant then tells the court:

"I haven't done nothing to take this privilege away from me. You‟re taking my constitutional rights from me and that is a reversible error in [sic] your part. And I‟m going to take this on a writ. And if this is all you have to say, this is all I have to say. I'll take this . . . up on a writ. You‟re not going to take my constitutional rights when I have the rights to represent myself. This is my life, your Honor. You're dealing with my life. . . . You want to fuck with me, I'll fuck with you."

Now, I know what you're thinking.  It's not good to threaten a judge.  Doesn't work.  Rarely, if ever, productive.

All true.

But you know what the weird part is here?

Defendant turns out to be right.

He gets sentenced to death, but today, the California Supreme Court reverses.  Unanimously, no less.  And in an opinion (1) by Justice Corrigan, that's (2) less than a dozen double-spaced pages.  Wow.  (Compare that opinion, by the way, to the other unanimous death penalty opinion that the California Supreme Court published today, which tops out at 162 pages.)

Mr. Becerra was correct.  There were, in fact, insufficient grounds for the trial court to relieve him of his pro per status.

Death penalty reversed.  Retrial.  After nearly twenty years in the California Supreme Court.

Crazily enough.

U.S. v. State of Washington (9th Cir. - June 27, 2016)

It's hard to argue with Judge Fletcher's opinion in this case.  It's an exhaustive opinion, topping out at 59 single-spaced pages.  It's exceptionally well reasoned.  And it's unanimous.

You could perhaps raise some issues about timing.  The district court caption starts with "01-", which means that this single matter has taken 15 years to get through the district court and the Ninth Circuit.  That's a lot of time.  Plus, the appellate caption starts with a 13-, so that's a heady amount of time in the Ninth Circuit alone, and the case was argued and submitted back in October of 2015.  That's a fair amount of time for a unanimous opinion.

Still.  The opinion is long, comprehensive, and articulate.  As well as important.  So you can see why the Ninth Circuit might want to make sure it gets this one right.

This is another one of those "Pacific Northwest Salmon" cases.  The U.S. entered into treaties in the nineteenth century with various Indian tribes.  They ceded tons of land to us and we promised in turn that we'd respect their rights to fish.  Needless to say, we promptly violated those treaties, repeatedly, but we're trying at this point to comply.

When we negotiated the treaties, we told the tribes that, yeah, we'd take a ton of their land, but we'd make sure they were still able to fish.  The basic scoop was something like this:  "Governor Stevens repeatedly assured the Indians that there always would be an adequate supply of fish. Professor White wrote that Stevens told the Indians during negotiations for the Point Elliott Treaty, 'I want that you shall not have simply food and drink now but that you may have them forever.' During negotiations for the Point-No-Point Treaty, Stevens said, 'This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?'”

The problem is -- as you might expect -- that the salmon population has substantially collapsed.  In no small part due to human intervention.  So how do we comply with our promises?

Well, one problem is that we -- and by that, I mean "Washington State" -- keep making it harder for the salmon to breed.  One way we do that is at issue here; namely, there are lots and lots and lots of culverts over streams, and many of those are built in a way that make it too tough for salmon to swim up 'em.  Easy for us to drive over, and cheaper than more expensive culverts (or actual bridges), but this whacks the salmon.  Hence resulting in fewer promised fish for the Indian tribes.

So the district court orders lot of 'em to be replaced, albeit over a 17-year period and/or when the normal lifespan of these culverts expires.  Washington State doesn't like that, so files an appeal.  But the Ninth Circuit affirms.

Judge Fletcher's analysis seems spot on.  At least most of it: there's something that seems messed up in the transition from pages 9 to 10 of the slip opinion; like there's a paragraph (or more) missing.  So hopefully that'll be worked out.  But otherwise, definitely solid, and a persuasive resolution of the appeal.

Judge Fletcher also does something relatively unusual, and something that you rarely want to see when you're on the losing side of an appeal:  He quotes from the oral argument.  Here it is:

"Washington contended that it has the right, consistent with the Treaties, to block every salmon-bearing stream feeding into Puget Sound:

The Court: Would the State have the right, consistent with the treaty, to dam every salmon stream into Puget Sound?

Answer: Your honor, we would never and could never do that. . . .

The Court: . . . I’m asking a different question. Would you have the right to do that under the treaty?

Answer: Your honor, the treaty would not prohibit that[.]

The Court: So, let me make sure I understand your answer. You’re saying, consistent with the treaties that Governor Stevens entered into with the Tribes, you could block every salmon stream in the Sound?

Answer: Your honor, the treaties would not prohibit that[.]"

Yeah, that's a tough question.  And the answer is indeed something that hoists the state on its own petards.  Since I strongly doubt that was the contemporaneous understanding of the Indian tribes as to what they were giving up under the deal.  So you can see why Judge Fletcher responds to this claim in the opinion with the line:  "The State misconstrues the Treaties."

More salmon for Native Americans.  More salmon for everyone.  But roads that are a bit more expensive.

P.S. - Washington State's best argument is, perhaps unfortunately, blocked by doctrine.  The state says that the United States is totally wrong about the culverts being a violation of the treaty because the U.S. itself has placed a plethora of the exact same types of culverts under its own (federal) roads, thereby blocking salmon.  It'd be totally unfair, Washington says, to let the U.S. successfully sue us, and make us take out our culverts, when the U.S. gets to keep its own identical culverts over the exact same streams (in violation of the exact same treaties).  To which Judge Fletcher says, essentially:  "Maybe.  But welcome to the wonderful world of sovereign immunity."

Which is almost surely right as a matter of doctrine.  But if there were an affirmative defense of "Manifest Hypocrisy," Washington State might well crush on this one.

People v. Sanchez (Cal. Supreme Court - June 23, 2016)

Justice Liu writes a concurrence that, as usual, raises a variety of fascinating doctrinal points.  It's definitely worth a read.

The facts of the California Supreme Court's opinion are also worth review, but for an entirely distinct reason.  It's an incredibly depressing story of various "takeover" robberies and, ultimately, murders.

That people brutalize and kill people purely for money is a telling feature of our society.  Sadly.

People v. Willover (Cal. Ct. App. - June 21, 206)

I am indeed reluctant to sentence juveniles to life in prison with absolutely no possibility of parole, ever.

Yet I fear the day -- if it ever comes -- that this person gets released from prison.

Horrible, utterly senseless murders.

People v. Young (Cal. Ct. App. - May 26, 2016)

Some cases are extraordinarily hard.  Some are fairly easy.

This is an example of the latter.

California law provides that if you're on parole, and have finished up a year, you're required to be discharged from parole within 30 days.  Here's what the statute says:

“(a) The county agency responsible for postrelease supervision . . . shall maintain postrelease supervision over a person . . . until one of the following events occurs: (1) The person has been subject to postrelease supervision pursuant to this title for three years at which time the offender shall be immediately discharged from postrelease supervision. . . . [or] “(3) The person who has been on postrelease supervision continuously for one year with no violations of his or her conditions of postrelease supervision that result in a custodial sanction shall be discharged from supervision within 30 days.”

Mr. Young had been on parole for one year and one day when the police searched his home (and found child pornography) pursuant to a parole condition.  He says that this was impermissible since he was entitled to be off parole after a year.

Nope.  The statute says that after a year, the authorities have 30 days to take you off.  That 30-day period had not yet expired.

Hence the search was valid.

Exactly right.  The statute means what it says.

Butler v. LeBouef (Cal. Ct. App. - June 20, 2016)

In a non-trivial number of cases, an appeal is not only unsuccessful, but also results in a published opinion that makes the appellant look bad.

This one may take the cake.

There are so many findings in here that West Hollywood attorney John F. LeBouef would not want publicized.  You can get the slightest glimmer of them from the first paragraph of the published opinion from the Court of Appeal:

"An ethical estate planning attorney will plan for his client, not for himself. (See Estate of Moore (2015) 240 Cal.App.4th 1101, 1103.) A license to practice law is not a license to take advantage of an elderly and mentally infirm client. As we shall explain, the factual findings of the trial court compel the conclusion that appellant used his license to take advantage of an elderly and mentally infirm person to enrich himself. The trial court factual findings are disturbing, fatal to appellant's contentions, and suggest criminal culpability."

The remainder of the opinion contains the disturbing details.  Go ahead and take a gander if you'd like.  Suffice it to say that it's not a story that Mr. LeBouef would probably like circulating around for all to see.  Yet there you have it.

Justice Yegan ends the opinion by not only awarding costs and attorney's fees against LeBouef, but also enters the following:  "The clerk is directed to forward a copy of this opinion to the California State Bar (Bus. & Prof. Code, § 6103.6) and the district attorney for the County of Santa Barbara."

We'll see where things go from here.  Regardless, I think we can confidently say that the appeal did not go as Mr. LeBouef hoped it would.

People v. Garrett (Cal. Ct. App. - June 15, 2016)

Ryan Garrett drives a red BMW to a QuikStop convenience store at 2:00 a.m., grabs a number of gift cards, and approaches the register.  He's got a wallet belonging to Julie Skelton and a credit card that bears her name.  Before he can make the purchase, however, he spots some police officers, who have an arrest warrant for Mr. Garrett, who've been looking for him (and his red BMW), and who have just rolled up on the QuickStop.  Mr. Garrett ditches the wallet and credit card in the trash can, looks to get out of the QuickStop through a back door, but is ultimately arrested.

The wallet and credit card were stolen from Julie Skelton's car.  In Mr. Garrett's BMW "police found three canisters of pepper spray, a large pair of metal bolt cutters, and a punch tool for breaking windows."  On Mr. Garrett's cell phone "the police found text messages discussing the sale of a $300 Macy’s gift card for cash or drugs."  On Mr. Garrett "police found a half-gram of heroin."

Needless to say, Mr. Garrett gets charged with a series of crimes.  Rightly so.  "On March 5, 2014, the prosecution charged defendant by information with six counts: Count One—Commercial burglary (Pen. Code, § 459); Count Two—Receiving stolen property (Pen. Code, § 496, subd. (a)); Count Three—Possession of heroin (Health & Saf. Code, § 11350, subd. (a)); Count Four—Misdemeanor identity theft (Pen. Code, § 530.5, subd. (c)(1)); Count Five—Possession of burglary tools (Pen. Code, § 466); and Count Six—Possession of tear gas by a felon (Pen. Code, § 22810, subd. (a))."

The case gets resolved like you think it would.  Especially since they've got Mr. Garrett largely dead to rights.  He's a felon, so he's got a prior strike.  So they pick a charge, let him plead to it, and then negotiate a sentence.  "On June 12, 2014, defendant pleaded no contest to Count One (commercial burglary) and admitted the strike allegation in exchange for 32 months in state prison and dismissal of the remaining counts."

One might argue whether two and a half years is the appropriate sentence for Mr. Garrett.  Maybe it's too short.  Maybe it's too long.  But it's a deal.  He gets 32 months.  Off to prison he goes to serve his time.

But not so fast.

Because two weeks after Mr. Garrett pleads guilty, initiative supporters turn in enough signatures to get Prop. 47 on the ballot.  And, that November, they pass the thing.  At which point Mr. Garrett promptly moves to be released.

He says that the crime he actually pled to -- Count One -- was in fact shoplifting. (with the value of the gift cards around $50).  And that's a misdemeanor.  Hence he's eligible for resentencing under Prop. 47.  Sure, he was charged with other crimes.  But he wasn't convicted of those.  He solely pled guilty to the one charge, which was admittedly charged as a felony, but was actually a misdemeanor, so he's eligible for relief.

The Court of Appeal agrees.  Reverses and remands.

The Court of Appeal's reasoning is fairly solid.  I don't have a huge problem with that.  The rules and laws appear to indeed be what Justice Marquez says they are.

Yet there's still something about this case -- and presumably others like it -- that bothers me.

I think what's gnawing at me is that this was a deal.  It was essentially random which count people like Mr. Garrett plead to.  Sure, they want to plead to the facially least serious count.  But what the prosecutor really cares about -- understandably enough -- is the sentence.  So as long as the guy gets 32 months, in truth, the deal's probably based a lot on some more serious charges (e.g., possession of tear gas by a felon), but if he wants to plea down to burglary/shoplifting, that's fine.  As long as the guy does the 32 months.

But then along comes Prop. 47.  Which upends things.  If the prosecutor knew about that pending initiative, and its potential application, no way this deal gets made.  They'd make Mr. Garrett plead to a more serious charge, one to which Prop. 47 clearly doesn't apply.  Of that I'm certain.  So it seems somewhat untoward -- random, even -- that Mr. Garrett doesn't have to serve the sentence to which he agreed merely because of the happenstance of the particular charge that was selected for the plea.  My reaction is also especially strong in the present case because of the very short time between when the plea was taken (June) and when the initiative qualified for the ballot (later than month) and passed (in November).  If the timing was just a little bit different, no way Mr. Garrett gets relief, since there's no way the prosecutor would have made this particular deal.  S/he would instead have insisted on a plea to a more serious charge, and Mr. Garrett would have to do the full 32 months (minus, of course, the various good time credits, etc.).

I understand that, in other cases, the Court of Appeal has held that Prop. 47 is indeed retroactive, that it applies to negotiated pleas as well as convictions after trial, etc.  All of that seems fine to me.

But there's nonetheless something about this particular cases -- and ones like it -- that still seems to me to be wrong.  If only because I feel confident that voters (including me) who voted for Prop. 47 may not have intended for people who in fact may have committed "serious" crimes, but who just-so-happened to plea to a lesser crime in turn for a particular negotiated sentence, to get relief.  There's an element of randomness here that just doesn't seem right.  Or intended.

In this particular case, admittedly, maybe everything turns out "okay" in the end, due to intended and/or unintended consequences of the system.  For example, here, the Court of Appeal remands for further consideration of whether Mr. Garrett is ineligible for Prop. 47 relief because he's a danger to society.  Okay.  If he is, then yeah, he does the full 32 months.  Moreover, even if he's not a danger, the reality is that Mr. Garrett is likely to serve all (or nearly) all of his original sentence anyway.  He pled guilty in June of 2014, so presumably has been in prison since then.  His Prop. 47 petition was denied in the trial court, and his appeal took the usual amount of time. so it's only now that he is potentially eligible for relief.  And there's still time for the state to petition for review, the necessary Prop. 47 proceedings on remand, etc.  The net result of all of which is that Mr. Garrett will almost certainly end of being in prison from 2014 to 2017 -- essentially, is full sentence.

But that particularized randomness (and potential injustice) hardly makes up for the systemic randomness (and potential injustice) of the underlying holding here.  Maybe it eventually "works out" for Mr. Garrett in some cosmic sense of karma:  he may end up having to serve his full time anyway.  But other people may end up spending too long, or getting out too early, in analogous settings.  The application of Prop. 47 in some of these cases just doesn't seem to me like it was necessarily how the voters intended.

That happens sometimes with statutes as well, of course.  And text matters.  Still.  There's something about cases -- or at least situations -- like these that seems a bit off.  At a very minimum, that it's not the best of all possible worlds.

People v. Endsley (Cal. Ct. App. - June 16, 2016)

I think I know what's going on here.  But I do wonder how cases like this will be viewed in 100 years.

And maybe how the underlying statutory scheme should be viewed now.

Over twenty years ago, Mr. Endsley killed his father while he was insane.  His jury so finds.  So he gets committed to Patton State Hospital.

He stays there, getting treated, for a long, long time.  Eventually, Mr. Endsley believes that he's now better, so he files a petition for a judicial declaration of the restoration of his sanity.  The trial court, after hearing a recommendation from the hospital staff, decides that, yeah, he's better.

Which doesn't mean that he immediately gets released.  Rather, under the statute, it just means that he gets conditionally released to an outpatient program first.  Then, if he's "successful" in the outpatient program, he can then seek unconditional release into the community.

Here, after around a year of Mr. Endsley's participation in the outpatient program, "the trial court revoked [Endsley's] outpatient status based on reports that he was not processing his anger issues with his group home staff."  So he gets sent back to Patton.  Not an especially nice place.

What strikes me about this process is just how completely subjective and arbitrary it is.  Mr. Endsley gets recommitted to Patton because he "was not processing his anger issues" adequately.  Really?  He wasn't perfect in "processing his anger issues"?  Who exactly amongst us is?  I'm confident that I've had plenty of times that I didn't "process my anger issues" in the manner that's most psychologically productive.  Should I be involuntarily committed to a state hospital as well?  Plus, it's such a vague and amorphous thing.  Okay, he gets angry.  Okay, he should deal with it better.  Ditto for all of us.  How exactly does one draw the line between "not okay, but tolerable" expressions of frustration versus "not processing" one's anger so well that it justifies another decade or so in an institution.

Now, if Mr. Endsley is punching people, or smashing lamps, or knocking holes in the wall, look, I get it.  That's a bad sign.  But I'm not sure that inadequate "processing of anger issues" -- which is all the opinion says he did -- really gets me to the ending point here.  Is that really all it takes?  If so, I'm a bit worried.  For people like Mr. Endsley as well as for everyone else.  It seems like we should expect more from our criminal justice system than for your liberty to be based upon whether or not any one particular person feels like you're "processing your anger issues" in an optimal way.  And, at least until today, I thought it did.

Of course, I get it.  Mr. Endsley shot and killed his father.  He's clearly got -- or at least had -- serious problems.  We want to make sure he doesn't reoffend.  And I'm certain that there's conduct short of punching someone that would make me conclude that, uh, yeah, that dude has serious anger issues and needs to be put back in the hospital.  Pronto.

But I'm not sure that mere recitation of suboptimal "processing of anger issues with his group home staff" cuts it for me.  For me, I'd need to hear a lot more.  Otherwise it may sound like we're willing to send people back to a state hospital merely because some staff members think that someone is not "processing" things to the subjective satisfaction of others.  Which I would find troubling.

I hope Mr. Endsley gets better.  And I hope that we've got more definite rules -- standards, even -- for when people get deprived of their liberty rather than a mere inadequate "processing of anger issues".

Hyan v. Hummer (9th Cir. - June 14, 2016)

The Ninth Circuit is exactly right here.  So right that it doesn't need oral argument, nor more than a week after the date the case was deemed submitted to publish its opinion.

It may well be (and in fact is the case) that, in California state court, when the trial judge grants an anti-SLAPP motion that dismisses the claims against two of three defendants, that order is subject to an immediate appeal.  But, under the Erie doctrine, the same rule doesn't apply in federal court.  Rule 54(b) expressly says that such orders in federal court are not "final" orders and hence are not subject to immediate appeal.  You've got to wait until the end of the case.  That rule is dispositive here.

Technically, the Ninth Circuit's per curiam opinion leaves out one (important) step.  The opinion says that because there's a federal rule of civil procedure that governs the issue, federal courts follow that rule.  But in truth, the Ninth Circuit would also have to conclude, under Erie, that this rule is also arguably procedural and does not abridge, modify, or enlarge any substantive rights.  That's the test.

I'm certain that that's what the panel was implicitly thinking anyway.  Though, again, technically, they might have wanted to actually say it.

Still, the result is definitely right.  Appeal dismissed for lack of jurisdiction.

U.S. v. Christie (9th Cir. - June 14, 2016)

One of the problems with openly flouting federal drug laws is that, eventually, you may draw some interest from the federal government.  As Roger and Sherryanne Christie find out here.

Things were going swimmingly for a while.  Roger opens up the "Hawaii Cannabis Ministry" in Hilo, Hawaii in 2000.  Many sheep, seeking spiritual communion via marijuana, join his flock.  He says he has two to three thousand converts in Hawaii and 62,000 members of the church worldwide.  So many members, so much need for marijuana.  He's distributing half a pound of marijuana to his flock every day, and lines sometimes form out to the sidewalk in front of the church in order to receive his special sacrament.

Word of mouth and promises from Mr. Christie that church members will be free from arrest eventually prompt a federal investigation and, thereafter, an indictment.  And after pleading guilty (after some adverse pretrial rulings from the district court), Roger is sentenced to five years in prison and Sherryanne, his "assistant manager" (and eventual wife), receives a little over two years.

The Ninth Circuit affirms.  There's a legitimate state interest in stopping diversion of marijuana from religious facilities.  So the Religious Freedom and Restoration Act doesn't preclude Mr. and Mrs. Christie's convictions.

I'm certain it was good while it lasted, though.

U.S. v. Davis (9th Cir. - June 13, 2016)

You may perhaps recall Marks from your old law school days.  At least if you (1) took a course in Federal Courts, and (2) did so after that opinion was rendered in 1977.  That case involved the vexing, and difficult, issue of what controlling precedent is created when no particular opinion by the Supreme Court commands an absolute majority; e.g., 4-4-1 or 4-3-2 opinions.

The federal courts have struggled with interpreting and applying Marks for nearly the past four decades.  It hasn't gotten any easier.  The Ninth Circuit's no exception.

Last year, a Ninth Circuit panel decided a particular case (involving a motion to retroactively change a crack cocaine sentence) and held that circuit precedent precluded the relevant motion.  The panel was right -- a Ninth Circuit case from 2012 had involved the identical issue, and has expressly so held.

But Judge Berzon concurred, stating that although she agreed that circuit precedent dictated the result, the prior panel had gotten the issue wrong, and urged that the case be taken en banc.  She said that the prior panel had erroneously applied Marks to the issue when it elected to apply Justice Sotomayor's concurrence (in that 4-4-1 case) as the controlling legal principle despite the fact that all eight of the other justices expressly disagreed with her view.  So Judge Berzon thought the Ninth Circuit should take the case en banc and correct the error.

Later that year, the Ninth Circuit indeed took the case en banc.  And today, the Ninth Circuit decides the case.

The en banc court again agrees with Judge Berzon.  It overrules the prior panel precedent from 2012.  And the only judge who dissents from this decision to overrule that 2012 opinion is the author of that prior precedent:  Judge Bea.

But fear not.  Disputes about the proper interpretation of Marks nonetheless continue unabated.  Judge Paez's opinion for the Ninth Circuit decides to adopt the plurality opinion in the underlying Supreme Court case (rather than Justice Sotomayor's concurrence) as the controlling legal principle, but states that he's not deciding -- for now -- whether the reasoning of the dissenting justices in that case can be evaluated when deciding which rule to follow under Marks.  Judge Christen, by contrast, adopts that same controlling principle -- the plurality's -- but nonetheless writes separately to state that dissenting opinion should never be evaluated when deciding which rule to follow under Marks.

So there's still a fight about how to interpret the case.

Oh, and in a neat little coincidence, guess how many judges on the Ninth Circuit panel agree with the approach articulated by Judge Paez, and how many agree with the approach articulated by Judge Christen.

Five.  Each.

So it's a 5-5-1 on that point.  (And I'm not going to even address the additional complexity of Judge Bea's dissent on this issue, or whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion that involves the issue of whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion.)

Fear not.  There's still a ton to fight about with respect to how to read plurality opinions.  Both in the Ninth Circuit and beyond.

Plenty of work for lawyers.

In Re A.G. (Cal. Ct. App. - June 10, 2016)

Let's end the week with just one of the many depressing cases that all-too-regularly appear in the California Appellate Reporter.

This one, published earlier today, isn't even all that bad, really.  It's not vicious abuse.  It's not rape or murder or anything like that.  It's just totally mundane.

And maybe that's why it's so scary.  Just a ho-hum, run-of-the-mill story that's repeated thousands of times every year that generates little to no hope:

"E.G. was born in 2015 while his then 22-year-old mother, K.K. (mother), and 34-year-old father, R.G., were incarcerated. After his birth, mother arranged to have an unrelated female take E.G. home from the hospital. About two months later, SSA received a welfare report concerning the state of this woman’s home. SSA substantiated the report—the home was extremely unsafe and unsanitary—and SSA took E.G. into protective custody.

Shortly thereafter, SSA filed a dependency petition that alleged mother failed to protect and provide for E.G. According to SSA reports, mother started using methamphetamine in 2008, around the time of her 16th birthday. She was a daily user of methamphetamine until she became pregnant in 2010 with E.G.’s half sibling, B.G. Mother said she stopped using early in her pregnancy with B.G., and she was able to stay away from it for a couple of years. However, in 2012, mother returned to regular methamphetamine use, and B.G. went to live with his father.

In April 2012, mother was arrested for possessing drug paraphernalia. The court ordered her to attend an 18-month deferred entry of judgment program pursuant to PC1000. Mother reported being 'ordered to PC1000 three times,' and she said that she had enrolled in a program, but failed to attend.

In late 2012, mother was arrested for a probation violation after she missed an appointment with her probation officer. In 2014, she was convicted of evading a peace officer and driving under the influence of alcohol, and the court ordered mother to complete a three-month first offender alcohol treatment program.

By early 2015, mother was pregnant with E.G. and in jail with pending felony charges for possession of fictitious checks, stolen access cards, stolen property, and drugs."

Just another day in the Big City.  Orange County, this time.

Nothing to see here.

Peruta v. San Diego (9th Cir. - June 9, 2016)

The long-running dispute about restrictions in California on "concealed carry" of firearms has come to an end.  At least temporarily.

Back in 2010 and 2011, a district court held that limiting concealed carry permits to those who have "good cause" for 'em was permissible under the Second Amendment.  But in 2014, a divided panel of the Ninth Circuit reversed, holding that these policies (in San Diego and Yolo) were unconstitutional.

Today, the en banc court reverses.  The Second Amendment doesn't protect concealed carry.

The vote's a bit complicated, with five separate opinions.  But the basic scoop is this:  7-4.  Seven judges say the restrictions are fine, four say they aren't.  The seven win.

Judge Fletcher's majority opinion is very impressive.  He definitely crushes on the point -- which he proves at length -- that concealed carry prohibitions were always thought to be okay:  in England, in the colonies, in the early United States, when the Fourteenth Amendment was adopted, etc.  Some of the dissenting judges try to take on this point, but it's really no contest.  Judge Fletcher wins.

But the best argument of the dissenters is that California doesn't just heavily restrict concealed carry, but heavily restricts open carry as well.  So, they argue, in combination, that's an overall prohibition that violates the Second Amendment.

Judge Fletcher goes out of his way to say that the majority isn't deciding anything about open carry, which is a different case, and which may, or may not, be protected.  It's just that concealed carry is not protected, and that's the end of this case.

As a purely doctrinal matter, my own view is that Judge Fletcher's view on this issue is the right one.  If a plaintiff is challenging X, and X is constitutionally permitted, the fact that Y might exist but be unconstitutional -- and X plus Y even worse -- doesn't mean that X somehow becomes a violation of the Constitution as well.  If Y is unconstitutional, the remedy is to invalidate Y, not X.

So if open carry limitations violate the Second Amendment, then a court is free to say so.  But those aren't the limitation at issue in this litigation.  This one's about concealed carry.  And, at least in my view, the ample historical evidence gives a pretty clear answer to that question.

Here's the analogy I'd draw.  Imagine that a law says that you're not allowed to conduct your protest march in the middle of a military base.  That's X.  A different law also says that you're not allowed to conduct your protest anywhere outside a military base either.  That's Y.

Now, it's true that X + Y is unconstitutional.  Because even though time, place and manner restrictions are permitted, it's not okay to have a policy that completely bans a category of speech.  I get it.

But if someone in such a setting brought a challenge to X -- to the law that banned protests in the middle of a military base -- they'd lose.  The right remedy in such a case would be to allow speech outside the military base -- to strike down Y -- not to somehow hold that since X + Y violated the First Amendment, the First Amendment now gives you the right to protest on a military base.  That's not how it works.  And what doesn't work for the First Amendment, or the Fourth, or any other Amendment doesn't work for the Second either.

I won't comment much more about today's opinion, as I'm sure it'll get a lot of coverage in the more mainstream press anyway -- if only because the list of amici alone is several pages long.  Plus, this will not be the last word on the subject:  I'm almost certain that plaintiffs will petition for certiorari, and there's at least a non-zero chance they'll get it (though, at the same time, definitely a non-zero chance that they won't).

For now, though, concealed carry laws like the one in San Diego are okay.  Open carry?  That's another question.  Maybe even a harder one.

For for closed carry, we have an answer.  Seven to four.

Erler v. Erler (9th Cir. - June 8, 2016)

When you sponsor someone to immigrate to the United States, you promise (in a binding document) to ensure that the person you sponsor won't become a "public charge" -- i.e., will at least have an income that's 125% above the federal poverty line.  That way a sponsor can't bring someone into the United States, abandon them, and then burden the state with his support.  If you're a sponsor, you're a sponsor.  You're responsible for that person's welfare.  Until they leave the U.S., become a citizen, work for 10 years, or dies.  That's the rule.

Yashar Erler sponsors his future wife, Ayla Erler, and Mrs. Erler immigrates to the United States and marries him.  Mr. Erler's worth $4.6 million, so he easily qualifies as a sponsor.  No problem.

The Erlers ultimately divorce.  At which point, pursuant to a prenup, Mrs. Erler gets no alimony or support.  Absolutely nothing.  She's totally on her own.

So now Mrs. Erler is, at least metaphorically, out on the streets.  She tries but fails to get a job, and she's living off food stamps.  That plus the charity of her adult son.  He's making less than $40,000 a year -- hardly a princely sum -- but lets his mother move into his apartment, pays her expenses, etc.

Has Mr. Erler violated his support obligations under the agreement?

He says no, because she's "making" $40,000 a year in a "household of two," since she's in the same "household" as her adult son once he takes her in.  That's above the poverty line.

She says yes, because she's "making" nothing, and is living off the charity of others -- her son and the state -- and her income (of essentially nothing) as a "household of one" is under the poverty line.

Who's right?

The district court said that Mr. Erler is right.  So does Judge Schroeder, who says that "[i]n my view, the district court got this difficult case right."

But the majority opinion in today's opinion says that Mrs. Erler's approach is the correct one.  The majority says that Mr. Erler "asks the court to adopt a rule allowing sponsors to escape their support obligations by withholding payments and waiting for charitable third parties to pick up the slack," and doesn't find such a rule persuasive.

I agree.  As between the majority opinion and Judge Schroeder, I find the majority opinion far more persuasive.

But I wonder if even the majority opinion gets it entirely right.

The majority says that you don't count support from others who pick up the slack, and I think that's correct.  That rule essentially disposes of the current case, or at least makes the district court's task on remand exceptionally clear.  Very good.

But the majority opinion says that, as a matter of law, a sponsor always is simply agreeing to support a "one-person" household -- i.e., the immigrant herself (assuming the sponsor doesn't also expressly sponsor someone else) -- at 125% of the poverty line.  As the majority opinion puts it:  "At the time a sponsor signs an affidavit of support for a single intending immigrant, he or she would reasonably expect that, if the immigrant separates from the sponsor’s household, the obligation of support would be based on a household size of one. . . . The sponsor would not reasonably expect the obligation of support to be based on a household that includes the sponsored immigrant or immigrants plus anyone else with whom the immigrant might choose to live."

I'm not so sure about that.  Not so sure at all.

It seems to me that when you sponsor an immigrant, at least in some cases, you should reasonably expect that you might well end up supporting others.  And, as someone who thought long and hard about sponsoring someone at one point, I'm fairly confident that a reasonable observer might well, in fact, reasonably consider their agreement as permissibly taking on precisely such a burden.

The classic example of this, in my view, arises precisely from circumstances similar to those that transpired here.  Mr. Erler sponsored someone whom he intended to be his wife.  What's one thing that could potentially happen once the parties get married?  I don't know the details of Mr. and Mrs. Erler in particular -- their ages, their intentions, their sexual practices, etc. -- but I can nonetheless give a general answer that will apply in lots of such "sponsor-my-wife" cases:  Kids.

The immigrant and her sponsor may well pound out a kid or two before getting divorced.  And, last I checked, it's pretty darn hard for a newborn child to support himself.  In my view, when you agree to support an immigrant and to make sure s/he doesn't become a public charge, that includes the duty to whomever that immigrant might reciprocally have a duty to support; e.g., their children.  So if that immigrant has kids -- let's say, two -- and then your duty is to make sure that the immigrant has an income that's 125% above the poverty line for a household of three.  Otherwise, the immigrant is precisely what we don't want her to be (and what you promised she wouldn't be):  a public charge, because even if she's making 125% of the income for a household of one, that's not what she has, and she's in fact receiving public assistance etc. since she can't support herself and her three children.

Admittedly, one advantage of the Ninth Circuit's rule is that it's a nice, bright-line rule:  Sponsors are always merely agreeing to a household of one.  That avoids uncertainty about extreme circumstances that I agree shouldn't extend the sponsor's burden; e.g., when an immigrant decides to support fifty unrelated individuals in her household, etc.

But we can resolve unusual cases on their own merits.  The advantages of a bright-line rule in avoiding silly extremes don't outweigh the benefits of a rule -- like mine -- that's generally right, albeit with the need to resolve some difficult cases at the margins.

I think that a sponsor agrees to provide sufficient income for a household of the size that might reasonably be expected under the circumstances.  For most people, that means their kid.  And that's true regardless of whether the immigrant's a man or a woman and whether the kids are biological or adopted.  When you sponsor someone, you're agreeing that you're going to support that person at 125% of the poverty line of whatever size their household ends up being.  If it turns out they have six children, well, you know what, these things happen.  You promised that you wouldn't be creating a social burden; e.g., making a public charge.  And if the immigrant has six kids (!) that need support, then s/he needs to make an income of 125% of the poverty line for her household of seven -- $46,000 a year -- then that's the deal you struck.

So I'm on board for the majority's resolution of the present case.  But I'd backtrack on the "you're only ever agreeing to support at a household of one" dicta.  I think that'd be bad law.  Bad law that a district court would nonetheless follow, and that would result in both inequitable consequences -- e.g. a guy worth $4.6 million being able to keep an ex-wife and her kids in poverty and on food stamps -- as well as an increase in social expenditures for public charges.

That's bad for everyone.  Or at least everyone but the one guy who gets to avoid the obligations that he voluntarily undertook.

Kinda v. Carpenter (Cal. Ct. App. - June 6, 2016)

The Court of Appeal goes out of its way to compliment the trial court -- Judge Ariadne Symons in Santa Cruz -- on the hard work it obviously put in on the attorney fee issue.  That's nice.  It's always good for an appellate court to show a little love when it's warranted.

That's perhaps especially true when, as here, the Court of Appeal is reversing a different portion of the appeal on the merits.

The issue here involved the dismissal of a defamation claim.  Plaintiffs say that the defendant -- their commercial landlord -- started posting up fake (and false) Yelp! reviews of their business immediately after they filed a lawsuit against him.  The timing was darn close:  the first review was posted the day plaintiffs obtained their TRO against their landlord, with the other two allegedly fake reviews posted shortly thereafter.  Plaintiffs then sought and obtained various subpoenas which showed pretty darn conclusively (in my view of the evidence) that the ISPs used to post those negative reviews were the ones registered to the landlord's home and business.  So the defamation case is going to trial; indeed, the pretrial judge found that there was prima facie evidence that would support an award of punitive damages.

But, at trial, there was a different judge -- Judge Symons.  That judge excluded all of the evidence about the Yelp! reviews on the grounds that there was "no foundation" for them; i.e., that since the plaintiffs purportedly couldn't "prove" that these reviews came from any particular person, any such evidence was inadmissible.  Which in turn meant that plaintiffs' defamation case had to be dismissed.

The Court of Appeal reverses.  Incredibly properly so.  You don't have to "prove" that the evidence at issue (the Yelp! reviews) came from the defendant.  You're instead required only to produce sufficient evidence from which a trier of fact could conclude that, yep, this stuff more likely than not came from the guy.  With all reasonable inferences viewed in your favor.

And the evidence here more than meets that standard.  In my view, way, way more.

So nice kudos to the trial judge on one issue.  And a nice reversal on the merits on the other.

Brown v. Superior Court (Cal. Supreme Ct. - June 6, 2016)

There's nothing from the Ninth Circuit today, and nothing except for one opinion from the California appellate courts.  But that one opinion is nonetheless fairly significant -- it lets a pending initiative to substantially revise various components of the state criminal justice system get to the signature-gathering stage.  Even though the trial court had enjoined it under the new provisions of Section 9002 of the Elections Code.

It was an important enough case that it went straight from the trial court to the California Supreme Court.  Which, in turn, expedited the case.  Today, the California Supreme Court issues its opinion.

It's a 6-1.  Only Justice Chin dissents.  He thinks that the amendments to the proposed initiative that were added after the new "notice and comment" period were too expansive.  The majority disagrees.

Justice Chin ends his dissent by noting various technical and other problems with the proposed initiative, which is apparently supported at this point by Governor Brown.  Check out the last three pages or so of Justice Chin's dissent.  Interesting stuff.

Anyway, an opinion worth reading.  At least for those interested in the criminal justice system here in California.

Because it may well involve an initiative that could appear soon at the ballot box.

U.S. v. Loveland (9th Cir. - June 3, 2016)

This one was a long time in coming.  An outstanding opinion, to be sure.  But, boy, did it take a while.

Judge Kleinfeld authors the opinion.  He makes very clear at the outset that there's no real doubt that the defendant, Jim Loveland, was guilty of possessing quite a fair amount of methamphetamine.  But the government didn't charge him with that.  It instead deliberately charged him only with conspiracy -- basically, a bigger charge, with bigger benefits for the government, presumably in an all-or-nothing strategy to persuade the jury not just to convict on a charge of mere possession-with-intent.

Okay.  But when you charge a conspiracy, you've got to prove an agreement.

And that's where the case gets tricky.

Because Mr. Loveland surely buys a fair amount of methamphetamine.  But that's basically it.  He pays in cash.  Doesn't get the drugs "fronted" to him.  Sure, he's presumably selling the drugs to other people down the line.  But for a "conspiracy" to exist, there's got to be an agreement to sell the stuff to downstream customers.  And there's essentially no evidence whatsoever for that.

The jury nonetheless convicted him.  But the Ninth Circuit reverses.  There's insufficient evidence of an agreement.

Judge Kleinfeld's opinion does a really masterful job of dissecting the numerous conspiracy-versus-mere-drug-buyer cases that exist both in the Ninth Circuit as well as across the nation.  It's a really well-written -- and smart -- opinion.  Here's basically the best summary of Judge Kleinfeld's thoughts on the matter:

"We are unable to see how in this case any reasonable juror could conclude beyond a reasonable doubt that the Sanchez group had an agreement, even tacit, with Loveland, for Loveland to resell the methamphetamine. Though the Sanchez group might assume that Loveland was reselling the methamphetamine that he bought from them, he could have flushed it down the toilet for all they cared, since they already had his money. As for future sales, they had no hold on him. Loveland was free to shop elsewhere. Their stake in his enterprise was no different from a big-box store’s stake in a convenience store’s financial success from the resale of individually packaged peanuts purchased by the carton from the big-box store. The big-box store ordinarily has no agreement with the convenience store owner regarding his resales. As the Seventh Circuit said in United States v. Colon, 'Every seller to a distributor has a stake in the distributor’s activities; a person who buys for resale will not enrich his seller if his resale business dries up.' However, we share the Seventh Circuit’s skepticism that “‘regular’ purchases on ‘standard’ terms can transform a customer into a co-conspirator."

Makes sense to me.

What also made sense to me -- at least initially -- was Judge Kleinfeld's distinction between "cash-for-drugs" as opposed to drugs that are fronted.  Judge Kleinfeld says that when the wholesaler fronts the drugs (i.e., doesn't demand payment at the outset, but instead gets cash once the drugs are sold), that's pretty good evidence of an agreement, hence conspiracy, since the wholesaler's clearly interested in getting effectively repaid.  There are, indeed, cases to that effect.  And that seemed right to me.  (It is a situation not present in the current case, but it nonetheless helps draw the distinction between the "mere buyer" cases versus the "actual conspiracy" situations.)

But, upon reflection, I wonder if it's actually true.  Or if the Ninth Circuit would draw the same conclusion in analogous situations outside the drug context.

Take a car sale.  Or a wholesaler who sells peanuts.  Or pretty much any commercial industry that sells on credit -- and that's pretty much everyone.  Let's assume that they do (as indeed they do) the same basic thing that a drug wholesaler does:  sells on credit.  Would we really say that this legally resulted in an "agreement" between the two parties to redistribute the goods to downstream buyers?

Take two examples.  (A)  I sell my brother my car for $1000, and he intends to paint it, make it look nice, and sell it on eBay.  He doesn't have the money now, so I "front" him the car, and tell him to repay me once he makes his money on eBay.  He ultimately gets a buyer who agrees to pay him $1500 for it.  (B) Acme Manufacturing makes widgets, Doug's Widgets places an order for 20,000 widgets, and Acme Manufacturing sells 'em to Doug's on credit, knowing full well that Doug's Widgets isn't going to use the widgets itself but instead intends to sell them to others.

Assume also that, in both cases, something goes wrong.  Maybe, in situation (A), eBay screws up the sale between my brother and the third party; i.e., tortiously interferes with that contract.  Or maybe, in (B), Doug's Widgets sells the widgets to X, Y, and Z on credit, but then Doug's goes bankrupt.

If there's legally an agreement, then presumably in (A), I can sue eBay for screwing up the sale, and in (B), Acme Manufacturing can sue X, Y, and Z for the purchase price of the widgets, right?  Since there was an agreement -- call it a joint venture, call it a contract, or call it a conspiracy -- between me and my brother (as well as Acme and Doug's) to sell to the downstream buyers, that's presumably give me standing to sue on my own behalf.  And that'd be true even if my brother/Doug's couldn't, or wouldn't, sue the downstream buyer themselves.

But there's no way the courts would, in fact, let me or Acme sue in situations (A) or (B).  I'm very, very confident that they'd say that there was no actual agreement between us to sell to the downstream buyer.  That the mere fact that one party sold on credit and/or knew that the items were going to be resold legally demonstrates an agreement to do so.  They'd kick that civil case out of court on its ears.

Yet that exact same evidence is held to establish an agreement beyond a reasonable doubt in these criminal cases.

That doesn't seem to make sense to me.

So I'm wondering now about even the fronting cases.  Should even those be sufficient to establish a conspiracy.  Even though, at first, I thought, yeah, that made sense.

So maybe we either have to change the criminal cases or the civil ones.  Seems like there should at least be a consistent answer.

Right?

One more thing.  Mr. Loveland gets great news today.  He was sentenced to life in prison for the conspiracy.  But, today, he's completely off.  No retrial.  No nothing.  Insufficient evidence.  You're a free man.

Talk about a great day for him, eh?

Yet, look how long it took.  Mr. Loveland filed his appeal in 2013.  Oral argument was in 2014.  It took the Ninth Circuit two years to write this sixteen-page, fairly straightforward opinion.  And for every single one of those years, Mr. Loveland -- who was legally innocent of the offense for which he was convicted -- continued to rot in prison.

That seems sort of harsh, no?  (And, yes, I understand that there might be some "rough justice" here, since he's "getting off" of a life sentence for which he'll only actually serve four or five years despite the fact that he almost surely dealt a fair amount of meth.  But that's not legally, or ethically, the way we can look at it, since he wasn't, in fact, charged with any offense that he actually committed.)

Now, there may well be reasons why this relatively simple case took an extraordinarily long period of time to resolve on appeal.  The case was argued in July 2014, and Judge Alarcon was on the panel, and he died in January of 2015.  So that undoubtedly delayed things a bit as they had to draw a new judge (which ended up being Judge Kozinski) to replace Judge Alarcon, read the briefs, listen to oral argument, and make up his mind.

Still.  There was presumably a pretty hefty bench memo -- and vote -- nearly two years ago.  Plus presumably at least a partial draft opinion by the time Judge Alarcon died in January 2015.  Even if you take into account delays in drawing a replacement, getting up to speed, etc., taking 18 months to write an opinion -- one without even a dissent -- that already had a lot of work on it done both prior to as well as six months after the oral argument is a ton of time.  If only from the perspective of the person, Mr. Loveland, who's rotting in prison for a crime he didn't commit.

Maybe this is one of those opinions that you want to expedite writing once you've decided to reverse the defendant's conviction for insufficient evidence.

None of which takes away from the actual content of the opinion.  Which is outstanding and, again, extremely well-written.

My substantive comments about one portion of it notwithstanding.

People v. Castillolopez (Cal. Supreme Ct. - June 2, 2016)

It's so, so nice to live in a state that has an incredibly smart state supreme court.

As it happens, I was at oral argument in the California Supreme Court last week, and was incredibly -- incredibly -- impressed with the questions from the bench.  The justices got to the central issues so quickly, and so cogently.  That's great to see, and it's also what every advocate should hope for.

I've also taken to live-streaming the oral arguments in the background whenever I've got little better to do at the office.  An academic's version of multi-tasking, so well known to the teenage generation (and their crappy music).  I find myself impelled to turn it down sometimes when one of the advocates is especially dull or raspy or overly aggressive, but never have I felt that way about the justices.  To see the California Supreme Court at work is truly great.  I may not -- and surely don't -- agree with every decision that tribunal renders.  But I profoundly respect the intellectual heft that's behind the opinions. And the questions at oral argument, to tell the truth, might be even better (at times, anyway) than the final written work product.

And then there are opinions like this one.

Now, you might be thinking that, with such an introduction, I'm going to slam the thing.  Not true.  I really, really like this one.  Couldn't have written it better -- or even half as good -- myself.  It's fairly short, at 14 double-spaced pages, and yet despite its brevity, is incredibly comprehensive.  It's the type of opinion that I absolutely love.  Incredibly well done.

Justice Kruger writes the opinion, and it's unanimous.  It's so good that it's hard to see how anyone could disagree with the opinion.  At least after reading it.  The actual issue isn't self-evident:  Does an your typical open Swiss Army Knife count as a "dirk or dagger" when the statute says that such a knife qualifies "only if the blade of the knife is exposed and locked into position."  Like your regular Swiss Army Knife, the knife here was open, and didn't have a separate "lock", but the spring on the knife nonetheless held the blade in the open position -- though you could push the blade back without manipulating anything other than the blade on the knife.  Does that count as "locked"?

The California Supreme Court says no.  Justice Kruger goes through the various iterations of the statute at length.  Which highlight, in part, not only its history, but also how much time is sometimes wasted on tinkering with statutory definitions that simply don't work.  I thought the background here was interesting (even if not providing much insight into the actual resolution of the question presented):

"Penal Code section 21310 makes it a criminal offense to carry "concealed upon the person any dirk or dagger."  The origins of the statute can be traced to 1917, when the Legislature enacted a statute that prohibited possessing several types of dangerous weapons "commonly associated with criminal activity,"  including "a blackjack, slungshot, billy, . . . metal knuckles, [or] bomb," and carrying "a dirk or a dagger."  In 1923, the law was changed to prohibit carrying a dirk or dagger only if it was "concealed upon his person."

Neither of these statutes defined the terms "dirk" or "dagger." Courts accordingly construed these terms in accordance with their dictionary definitions: "Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. (Century Dict.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc."

"Whether a folding knife or pocketknife qualified as a dirk or dagger under the statute, as the courts understood it, depended on whether the blade "locked" into place. [Cites]

In 1993, the Legislature undertook the first of several efforts to supply a definition of ―dirk or dagger.‖ In its initial effort, the Legislature defined "dirk" or "dagger" to mean "a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death." (Pen. Code, § 12020, subd. (c)(24), as added by Stats. 1993, ch. 357, § 1, p. 2155.) But this definition "ultimately proved too narrow and too difficult of proof. Prosecutors complained that ‗since we can never show that the primary purpose of a butcher knife, hunting knife, survival knife, ice pick, etc., is to cause death or great bodily injury by stabbing, we cannot obtain convictions under the statute, even when the person was carrying the concealed instrument for potential use as a weapon." (Rubalcava, supra, 23 Cal.4th at p. 337 (conc. opn. of Werdegar, J.).) 

In 1995, the Legislature amended the reference to a knife or other instrument that is '"primarily designed, constructed, or altered to be a stabbing instrument" with a broader reference to a knife or other instrument that is "capable of ready use as a stabbing weapon." (Pen. Code, § 12020, subd. (c)(24) as amended by Stats. 1995, ch. 128, § 2, p. 504.) The Legislative Counsel recognized that this change "would expand the scope of existing crimes"‖ (Legis. Counsel‘s Dig., Assem. Bill No. 1222 (1995-1996 Reg. Sess.) 5 Stats. 1995, Summary Dig., p. 35.) But this change, too, raised concerns — this time that the definition was too broad, rather than too narrow, particularly as applied to folding knives and pocketknives. In response to those concerns, the Legislature amended the statute in 1997 to provide that a folding knife or pocketknife would qualify as a dirk or dagger "capable of ready use as a stabbing weapon" only if the blade of the knife was "exposed and locked into position."

So there you have it.  So many amendments.  So many attempts to get it right.  And yet, a century later, we're still debating what the terms mean.

Ultimately, Justice Kruger says that an open pocketknife isn't "locked" when its simply held open by regular force that can be overcome merely by pushing the blade.  And that seems very much right to me.  Justice Kruger does an outstanding job of very intelligently dissecting the various arguments to the contrary -- nonfrivolous arguments, to be sure, but ultimately meritless.  Justice Kruger says that "when the Legislature referred to blades "locked into position," it intended to refer to knives with blades rendered immobile, as by operation of a locking mechanism, rather than knives with blades that could be collapsed simply by folding the blade back into the handle."  Otherwise pretty much any knife would qualify as "locked into position", since something -- some force -- holds the blade open in every pocketknife, lest the thing fold up while you're using it.  So let's make the statute both make sense as well as comply with our traditional understanding of various knives and their composition.

A beautiful opinion.  Fantastic to read.  Another great product of an outstanding court.

Bertsch v. Mammoth Community Water Dist. (Cal. Ct. App. - June 1, 2016)

"In September 2011, Richard Bertsch and his two sons, Brett and Mitchell, were staying at a friend’s condominium in Mammoth Lakes. The morning of the accident, Brett and Mitchell spent some time “cruising” around the neighborhood on their skateboards “for fun.” After stopping at the condominium to get some water, the two set out again on their boards. From the condominium, they traveled down Sierra Star Parkway, made a left turn onto West Bear Lake Road, and then “pushed [their] way up” an incline in the road so they could turn around and come down the hill. Meanwhile, their father was driving down Sierra Star Parkway; he planned to meet them at the intersection of Sierra Star and West Bear Lake to pick them up to go rock climbing. Bertsch reached the intersection as Brett and Mitchell were coming down the hill. Bertsch estimated their speed to be 'about eight to ten miles an hour.' Mitchell described their speed as 'pretty fast.' Neither Brett nor Mitchell was wearing a helmet. As they reached the intersection, Brett was slightly ahead of Mitchell and was traveling on the wrong side of the street. The front wheels of Brett’s skateboard stopped abruptly when they hit a small gap between the paved road and a cement collar surrounding a manhole cover, ejecting Brett from the board. The right side of Brett’s head struck the pavement as he hit the ground, causing a traumatic brain injury and resulting in his death."

I see people doing similar things a non-trivial number of days in my neighborhood.  Not smart.  Can result, as here, in utter tragedy.

At the very least, wear a helmet.

As for the law, the trial court granted summary judgment to the defendants, and the Court of Appeal affirms.  It might be one thing if you were using your skateboard as transportation.  That might be more like a bicycle, or even a car.  But here, the boys walked up a hill simply to do down it.  That's not transportation.  That's fun.  So the doctrine of primary assumption of the risk applies.  It's akin to a "sport".

So even if the road shouldn't have been in the condition it was, there's no liability.

Again:  Wear a helmet.  Please