Friday, June 28, 2019

Claiborne v. Blauser (9th Cir. - June 28, 2019)

This is a long, 27-page, single-spaced opinion.  Made longer by the fact that the defendant didn't object at trial, so we've got to review for plain error.  (Though the district court said it would have done the same thing even if an objection had been made, further complicating things.)

Notwithstanding the length, the opinion boils down to a very simple question:

Do we really have to publicly shackle a plaintiff during his civil trial when he's (1) 63 years old, (2) mobility impaired, and (3) had only ever committed nonviolent drug and property offenses?

Probably not.

Wednesday, June 26, 2019

Biel v. St. James School (9th Cir. - June 25, 2019)

When I'm right, I'm right.  When I'm wrong, I'm wrong.

Vis-a-vis this opinion, I was a little bit of both.

When the panel decision came out late last year, I was definitely on board with the majority opinion by Judge Friedland.  I thought it made great sense.  Still do.

There was a dissent, and I suspected -- correctly -- that it'd get some traction at the en banc stage with various conservative judges on the Ninth Circuit.  But I wrote back in December that these individuals would not be a majority of the court, and that an en banc vote would fail.

On that, I was right.

But I ended the post by saying that I didn't think the vote would be "anywhere near" a majority to take the case en banc.  On that, I adjudge myself incorrect.  The dissent from the denial of rehearing en banc received at least nine votes, since nine judges joined Judge Ryan Nelson's dissent.  All of the signatories were appointed by Republican presidents; indeed, every Bush appointee signed on, as did most of the Trump appointees. 

That doesn't get you a majority.  But it does get the dissent a solid third.

Times are a-changin' on the Ninth Circuit.  There was a period in which moderate liberals were a very large majority on the court.  You're now seeing the resurgence of a solid core of very conservative judges.  Not a majority, to be sure.  But solid.

And I suspect you'll see lots more dissents from denial like this in the future.

Tuesday, June 25, 2019

People v. Toledano (Cal. Ct. App. - June 24, 2019)

Great news for Newport Beach attorney James Toledano!  His conviction for extortion was reversed by the Court of Appeal for instructional error.

Bad news, though:  The Court of Appeal simultaneously holds that there was sufficient evidence to support his conviction, so Mr. Toleano continues to face a retrial on remand.  This time with proper instructions.

Plus, at least at present, he's still ineligible to practice law.

The underlying facts bespeak substantial caution whenever you're negotiating a civil settlement in which one of the aspects of the case is that some of the parties previously had an affair and you're arguably getting "hush money" to keep it quiet.  Because maybe, depending on the facts, that counts as extortion.

And you'll find yourself 75 years old, ineligible to practice law, unable to afford an attorney, and with a court-appointed lawyer for your second criminal trial.

Guillory v. Hill (Cal. Ct. App. - June 25, 2019)

The end of page two of today's opinion tells you probably all you need to know about the case.  The two sentences therein say:  "Plaintiffs originally sought over $1 million in damages but ultimately obtained an award of less than $5,400. Plaintiffs then moved for almost $3.8 million in attorney fees in a 392-page motion containing, in the trial court’s words, “bloated, indiscriminate,” and sometimes “‘cringeworthy’” billing records."

Yikes.  Needless to say, the Court of Appeal affirms.

Can you get an award of attorney's fees even if you obtain a relatively small award of damages at trial?  Of course you can.

But while pigs get fat, hogs get slaughtered.

Plaintiffs here asked for a ton of money at before trial, and then their lawyers asked for a ton of money after trial.  Perhaps even worse, the fee request at issue basically just dumped a huge pile of billing records in front of the trial court and said, essentially, "Sort it out yourself."

That, plus the fact that the bills were "crammed with obfuscating and questionable" entries, doesn't get you what you want.  It gets you exactly the opposite.  Nothing.

This is a good case to cite for the proposition that a bad (or abusive) fee motion is reason alone to deny fees altogether.  Though I doubt many cases involve nearly as bad of facts as these.

(The firms that represented the plaintiffs below, as well as on appeal, are Quintilone & Associates and the Eisenberg Law Firm.)

Monday, June 24, 2019

People v. J.M. (Cal. Ct. App. - June 24, 2019)

A kid in high school is upset that he's short on credits to graduate and tells his friend, in a private conversation, that he's going to "blow up the school, shoot it" and that he knew how to get an Army grenade.  The friend thinks that the kid is joking, but isn't certain.

The Court of Appeal holds that's a felony, and counts as "a false report [that] a bomb or other explosive device would be placed in [the] school."

Thursday, June 20, 2019

People v. Bankers Ins. Co. (Cal. Ct. App. - June 19, 2019)

I didn't think there'd be a dissent to this one.

The trial court declares the defendant's bond forfeited when his attorney shows up a little late to a hearing.  The attorney had called in, telling the clerk that he'd be there in 45 minutes, but didn't leave his name.  The attorney walked in five minutes after the court declared the bond forfeited, so the trial judge corrected the forfeiture.  No blood, no foul.

Three months later, the defendant skips.  The bond is ordered forfeited.  But the surety says that it's entitled to its money back because the trial court forfeited the bond earlier, and wasn't allowed to change that decision five minutes later without providing notice to the surety.

The Court of Appeal, like the trial court, disagrees.  It doesn't make any sense, Justice Danner says, to stop the trial court from correcting straightforward errors in the forfeiture process five minutes after they've transpired.  If the lawyer was a little late (especially if he had an excuse), and the "forfeiture" box was never entered in the minutes and corrected during the same court session, that event should not have any significance -- much less a dispositive one that allows the surety to avoid its obligation in the event the defendant flees.

It's a common sense ruling.

But Justice Mihara dissents.

It's not that Justice Mihara doesn't have a point.  The statute does say that you've got to give the surety notice once you forfeit a bond in open court.  And there's an argument that this makes sense even for a lawyer being five minutes late; it give the surety the opportunity to "reassess" the flight risk of the defendant (and, arguably, the competence of counsel).

So there's an argument.  Backed up by precedent.

But it's a weak one.  Or at least weaker, in my view, than the arguments the other way.  Particularly when the trial court makes mistakes; let's say, for example, that the defendant was there, and the trial court declared the bond forfeited, but it was a mistake, which the trial court realized ten seconds later (e.g., the defendant said "Here," but the trial court didn't hear him, and declared the bond forfeited, only to reinstate it seconds later when the defendant said "But I said I'm here!" and the trial court said "Oh, sorry, my bad, I didn't hear you.")  Under Justice Mihara's view, you're under a mandatory duty to notify the surety -- even after the correction -- and if you don't, the bond can't be forfeited even if the defendant later skips.  Doesn't make sense.  Ditto for the situation here.

So Justice Danner writes a common sense opinion.  As to which I'm on board.

Makes justice better.

Tuesday, June 18, 2019

Martinez v. Ryan (9th Cir. - June 18, 2019)

It's been a heavy week for death penalty cases recently.  I don't know whether it's the summer or just random, but lots and lots of murder opinions in the pipeline.  Which are always depressing, and that rarely show people at anything other than their absolute worst.

Today gives us a Ninth Circuit opinion that unanimously affirms the denial of a habeas petition in a death penalty case.  It's authored by Judge Milan Smith and joined by Judges McKeown and Fletcher. So the chances of en banc or Supreme Court review are essentially zero.  In California, that wouldn't mean much as a practical matter.  But this is Arizona, in which they at least used to actually carry out a fair number of executions.  (At least until it took two solid hours, and fifteen different attempts, to execute the last guy, at which point the Arizona governor put a moratorium on executions, until the state figures out how to actually "humanely" kill someone.)  So there's at least some chance that this guy will in fact be put to death at some point.

It's also not a case where you can't figure out why the death penalty was imposed.  It's someone who killed an on-duty cop, so that's going to get you sentenced to death more times than not.  And, as if that wasn't enough, the Ninth Circuit's opinion drops this little nugget in a footnote on page seven:  "Hours after murdering Officer Martin, Martinez robbed a convenience store in Blythe, California, and fatally shot the store clerk. Martinez’s convictions and sentences for that robbery and murder, however, are not before us."

Making it virtually certain -- if it wasn't already -- that the jury's going to sentence the guy to die.  As well as diminishing whatever residual sympathy a Ninth Circuit panel might have for the petitioner.

Monday, June 17, 2019

Swanson v. County of Riverside (Cal. Ct. App. - June 17, 2019)

This is an interesting opinion on several levels.

First, the (alleged) facts are fairly striking.  Brandon M. attacks his mother with a pair of scissors and is admitted to the Riverside County Regional Medical Center on a 72-hour involuntary hold.  But the hospital purportedly released him before the 72 hours has expired; allegedly,  "[leaving] Brandon in a waiting room and discharg[ing] him for lack of space before the expiration of the 72-hour period, then provid[ig] him a bus pass to return home" having never even assigned him a room.

Which is no problem if Brandon's not a danger to himself or others.  (Though he has just attacked his mother with scissors, so we might want to be a bit cautious here.)  But what does Brandon do once he gets home from the hospital?  He promptly uses a baseball bat at the home to bludgeon three people there to death.  Including, ironically, a technician who was installing an alarm system in the home, presumably to protect the family from . . . Brandon.  Not good.  (Some of the briefs in the dispute are redacted and nonpublic, but for more information about the underlying offense, including some facts not discussed in the opinion, check this out.)

The County files an anti-SLAPP motion, which successfully delays the lawsuit for some time.  But the trial court correctly denies it and the Court of Appeal affirms.

Beyond the facts of the case, the other interesting component of the opinion is the legal analysis.  Justice Huffman authors an 18-page disposition.  But the legal analysis of the actual holding of the thing is only two pages long, finding (appropriately) that the lawsuit didn't "arise out of" protected speech -- and instead arose out of conduct -- so the anti-SLAPP statute didn't apply.  The majority of the opinion, both before and after that holding, addresses other grounds for denying the motion, and simply serves to "express doubt" as to various County defenses.

That's a fairly long time to talk about issues that you're not actually deciding.  Maybe helpful to other (and/or lower) courts in the future, or on remand.  But classic dicta.

Expressed at length.

Thursday, June 13, 2019

Kirkpatrick v. Chappell (9th Cir. - June 13, 2019)

What a tangled web.

It's a death penalty case, and Judge Reinhardt writes the original opinion (joined by Judge Wardlaw), with Judge Kozinski writing a classic Kozinski dissent.  Needless to say, given that Judge Reinhardt wrote the majority opinion, you know how the case turned out:  the denial of the defendant's habeas petition was reversed and remanded.

The California Attorney General files a motion for panel rehearing (and rehearing en banc), an event that's likely going nowhere.  But while that motion was pending, troubles begin for Judge Kozinski, and he ultimately resigns at the end of the year, before the motion is decided.

Now, you may think:  "The guy dissented.  Not like his replacement is going to change anything."  And you'd be right.  Nonetheless, you've got to replace him, let the new member of the panel review the briefs and oral argument, and weigh in.

So Judge Christen gets drawn.  She's working on getting up to speed on the briefs and arguments.

And a few months later, Judge Reinhardt dies.  (Parenthetically:  Google, can we please get a better picture of the guy to pop up when someone does a search for "Judge Reinhardt dies?"  It's almost like you looked long and hard for a close-up photograph of the guy with his eyes closed.)

So now we have to replace Judge Reinhardt.  Judge Bea gets drawn to replace him.

And, perhaps predictably, the result of the opinion now changes.  The new panel orders the case reargued and, today, unanimously rejects the defendant's habeas claim on the merits.

The dispositive difference just being purely a matter of timing.  Had the court acted just a little faster on the pending motion, the defendant would have a live habeas claim, and chance for reversal.  But in a twist of fate, his victory gets taken away.

It doesn't really matter, of course.  As I mentioned earlier today (again, coincidentally enough), it's not like Mr. Kirkpatrick is likely to be executed anyway, since he too is in California.  Which, again, ironically, is exactly what Judge Kozinski said at some length in his original dissent to Judge Reinhardt's opinion in 2017.

To end where I began:  A tangled web.

People v. Caro (Cal. Supreme Ct. - June 13, 2019)

It seems somewhat a waste to write an 100-plus page opinion about someone who, notwithstanding the sentence, will almost certainly not actually be put to death.  Still, you want to get it right.  So here it is.

A woman with no prior criminal record who killed three of her four kids after a domestic dispute (and then tried to kill herself).  Another case where it's hard to fathom how a jury -- or collection of juries -- intelligently and rationally distinguishes between those defendants who should spend the rest of their lives in prison or be killed.

And another case in which the conviction and death sentence is unanimously affirmed.

Wednesday, June 12, 2019

United Grand Corp. v. Malibu Hillbillies (Cal. Ct. App. - June 12, 2019)

The Court of Appeal delineates the arguments and conduct of Los Angeles attorney Cyrus Sanai in this comprehensive, 37-page opinion.  It is devastating.  I've never seen the Court of Appeal savage an appellate brief so thoroughly as Justice Stratton does here.

Oh, and the opinion ends with this neat little kicker:

"Sanai did not report to jail and the trial court issued a bench warrant for his arrest. He is currently a fugitive from justice. He has willfully disobeyed the trial court’s order. Under the circumstances he is not entitled to challenge the sanctions orders on appeal."


People v. John (Cal. Ct. App. - June 12, 2019)

I'm seriously confused.

Is the Court of Appeal really saying that if both sides (i.e., the defendant and the People) recognize that (1) you're obviously guilty of the offense (i.e., you did it), but (2) you're also obviously insane (i.e., could not recognize right from wrong at the time of the crime), you can't agree to that as part of a plea deal?

That seems to be what today's opinion holds.  But such a holding seems to be so potentially wrong that I'm not at all sure that's what Justice McKinster actually means.

Part of the opinion seems obviously right.  You can't plead "guilty" but also "not guilty by reason of insanity."  One's guilty, the other's not guilty.  So, here, when the defendant ultimately changed her plea to "guilty" -- but both sides stipulated she was insane -- those two don't really mesh.  What you are really pleading is "not guilty by reason of insanity," and the People are agreeing.  So defendant gets to "withdraw" her guilty plea because that's not what you really plead to when you're saying you are insane.

So far so good.

But the Court of Appeal seems to be saying that you can't "mix" these two types of pleadings at all.  That you can't (1) admit that you did the offense (i.e., "plead guilty" to that), but (2) say that you were insane -- and have the People agree to that as well.  The Court of Appeal says that that's "[a]n illegal plea bargain," and hence "null and void."

That implicit holding seems weird.  Why can't the parties so agree?  Especially if it's true.  We want the parties -- desperately -- to strike precisely such deals, particularly when such a plea accurately reflects the obvious mental state of the defendant at the time.

The Court of Appeal correctly describes how the whole plea thing generally works in cases like this.  If you plead not guilty alongside not guilty by reason of insanity, you've got two trials; the first one about whether you did it, and a second one (if the first one finds you did it) about whether you were insane at the time.  Cool.  By contrast, if you just plead straight up NGI (not guilty by reason of insanity), you're essentially admitting that you did it, thus obviating the first trial, so the only issue is whether you were sane.  Again:  Totally fine.

But what I'd like to hear the Court of Appeal say -- at least if it believes it to be true -- is that it's fine for the parties to agree to (1) let the defendant change his plea from not guilty and NGI to a plea of only NGI (i.e., to essentially admit the offense), and (2) have the parties agree that the verdict will then be NGI (i.e., to stipulate that the guy was insane, so will be committed rather than incarcerated).  As the opinion now reads, it nowhere says that's permitted, and at least implicitly, with all these claims about "illegal plea bargains" and the like, seems to cast some doubt as to whether it's legal to do what the parties clearly attempted to do here; i.e., to strike a deal where everyone recognizes the guy did it but was insane.

Which makes me wonder whether the Court of Appeal really thinks you can't do that, or whether it just thinks that the particular "technical" way the parties were went about doing it (with a "guilty" plea) was merely a procedural error that can easily be corrected on remand to accomplish what the parties intended.

It'd be great if the Court of Appeal could make that a bit clearer.  If only because I've read the opinion three different times now, and am still not positive which of these two things it actually means.

Either position is arguably defensible.  I just want to know which one the Court of Appeal thinks is the actual law.

People v. Raybon (Cal. Ct. App. - June 11, 2019)

I can state with near certainty that the California Supreme Court will grant review of this opinion.

There's basically no choice.  The Court of Appeal's starkly worded opinion holds, unanimously, that pursuant to the plain language of Proposition 64 (which legalized marijuana), it's no longer a felony to possess this product in prison.  You can still be subject to discipline -- potentially heavily -- for having it in prison, or convicted for smoking it in prison.  But it's not a felony to possess it, at least if you're 21 and it's under an ounce.

There is, in fact, a strong argument that that's exactly what the text of the statute provides.

So why does the California Supreme Court basically have to grant review?

Because, three months ago, a different panel issued this opinion.  Unanimously.  Holding exactly the opposite of what the Court of Appeal holds in the most recent opinion.

You can't have squarely conflicting appellate holdings on the validity of a substantive felony that's an incredibly commonly charged offense.  There needs to be a rule.  One rule, applicable everywhere in the state.

So the California Supreme Court has to step in and decide the matter once and for all.  Quickly.

So they'll grant review in this case.  And, while they're at it, they need to grant review in the case from March as well.  A petition for review has already been filed in that case, and a couple of weeks ago the Court extended the time to grant or deny review to July 8.  After this most recent opinion, the Court should grant review in both cases.  And decide which panel was right.

Tuesday, June 11, 2019

City and County of San Francisco v. Uber (Cal. Ct. App. - June 11, 2019)

Had the Court of Appeal not published this opinion, I would never have known that ride-sharing services like Uber and Lyft "accounted for nearly 65% of all moving violations for driving in transit lanes and bicycle lanes, obstructing bicycle lanes and traffic lanes, failure to yield to pedestrians, and illegal U-turns in business districts" in San Francisco.

That's a shockingly high number.  Amazing.

Monday, June 10, 2019

People v. Kidd (Cal. Ct. App. - June 10, 2019)

The decision to publish this opinion definitely got me thinking.

The question in many of these cases -- including this one -- is when a reasonable person would no longer feel "free to leave" when confronted by the police.  That's a toughie.  Most of the time, we don't leave a police encounter, even if it's unwanted (as it often is), because we don't want to be rude or because we're not sure we're allowed.  From a risk/reward perspective, it's not usually too big of a pain to converse with the police, whereas if you attempt to flee the encounter, rightly or wrongly, you may end up getting arrested.  Or worse.

So from a practical point of view, the realities of the situation almost always "coerce" you to interact with the police.

But Fourth Amendment doctrine obviously can't say that you're detained whenever the police talk to you.  If only because, as a factual matter, you are, in fact, free to leave in a variety of situations.  As a result, we've to to distinguish between when there's an actual Fourth Amendment seizure --  a set of facts that requires probable cause, or reasonable suspicion, or something like that -- and when there's not.

No easy task.  Which is amply revealed by the diversity of cases that deal with the subject, which are by no means subject to facile catalog.

Today's opinion is yet another of these fact-intensive cases.  But the facts are fairly straightforward.  An officer sees a couple of guys sitting in a car in a residential area during the "wee hours of the morning" with their fog lights on.  That's definitely not reasonable suspicion of a crime, but at the same time, not exactly something usual, either.  So we want -- or at least, I want -- the officers to investigate.  Which they do.

The police make a u-turn in their car, park 10 feet behind the suspicious/interesting vehicle, shine their floodlight on the car, and approach the thing at a fairly brisk pace to talk to the occupants.  No red lights, no guns drawn.  But, still, a couple of floodlights from a police car ten feet behind you.

Would you feel free to leave?

My personal answer is:  No.  Which is what the Court of Appeal says as well.  Holding that since it was thus a detention, there had to be reasonable suspicion of a crime.  Which there wasn't.  Hence we suppress the guns, drugs and pills the officers subsequently find.

But it's a messed up inquiry.  Because I wouldn't feel free -- most reasonable people wouldn't feel free -- to leave with a lot less.  Even just cops coming up to you in your car at 2:00 a.m., no floodlights or anything.  Are you really going to just drive away?  No way.  Because I suspect that virtually all of us would think that if we did, they're going to definitely come after us.  Which means we wouldn't feel free to leave.  Yet those facts are the very definition of a "consensual" police encounter to which the Fourth Amendment doesn't apply.

Making the Fourth Amendment test depend on whether a reasonable person would feel free to leave just seems silly.  Because no one seems free to leave.  Even when, in fact, they are.

Plus, the only ones who actually "know" whether they're free to leave are likely to be limited to lawyers, law professors, or (other) hardened criminals.  So it seems incredibly artificial to decide whether there's a seizure based upon what a totally uninformed person would perceive based upon a set of facts in which the practical realities almost always militate in favor of sitting tight once the police approach you.

I'm thinking that maybe the right approach would be a Miranda-type thing.  Maybe what we want to say is that a ton of police encounters are presumptively detentions -- something that reflects the actual reality of what most people feel -- unless the police proactively say something like "You're free to leave if you'd like, but [if you want to talk to me, blah blah blah] . . . ."  There'd be a lot of upside to such a rule.  That way you'd know whether you were, in fact, free to leave.  And could actualize your desires if you'd like.  It'd also avoid the dangers -- life-risking, in some circumstances -- of someone thinking that they're free to leave when the police take a different perspective.  We'll basically just assume that in most police encounters, other than the most obviously benign, someone is not free to leave unless the police tell 'em otherwise.  (Now, if they leave anyway, and there's no reasonable suspicion, that's fine, we can't validly arrest 'em.  But letting them know the scoop in advance seems like a valuable -- and easily obtainable -- objective.)

The people here seem to me like they were, in fact, free to leave, and had they left, I'd have been fine with that.  Maybe a brighter-line rule would both make cases like this easier to adjudicate as well as have substantial real-world advantages to boot.

Friday, June 07, 2019

People v. Smalling (App. Div. Sup. Ct. - June 7, 2019)

On the "low level litigation" front, here's a neat little published opinion from the Appellate Division of the Superior Court.  It holds that restitution is mandatory even for infractions (e.g., traffic tickets).

The defendant here pled guilty to having her pit bull kill a service dog, the result of which was a fine of $157.  But the owner of the dog who was killed then demanded restitution, which the trial court (a temporary judge) denied, saying that the owner could sue civilly if she wanted, but couldn't obtain a restitution order in a case involving an infraction.

But the Appellate Division disagreed.  It may be an infraction, but it's still a crime.  And restitution is mandatory in all criminal cases.

So it's going to end up being a lot more than $157.  (Plus, unlike the judgment in a civil suit, an order for restitution likely isn't covered by one's homeowners policy.)

One final note.  It's rare that the order of a temporary judge (a "pro tem") is made the subject of a published opinion, so I looked up the judge at issue, who's listed as Andrew K. Kim.  To my surprise, there's no lawyer or judge in California listed with that name; the closest you get is a "Peter Andrew Kim," which I'm fairly confident is someone else.  So I contacted Mr. Google, and discovered that there is a lawyer listed with that name, but in a way I'd never seen before.  The State Bar's records for Ki Hyon Kim list his "aka" as Andrew Kim, and he works at the "Law Office of Andrew K Kim."  So I assume that's him.  I've just never seen an a.k.a. in an official Bar record before.  Learn something new every day.

Thursday, June 06, 2019

Bergelectric Corp. v. Secretary of Labor (9th Cir. - June 6, 2019)

The $3000 question in this opinion is whether solar panels are "roofing materials [or] equipment."  If they are, then installing those panels is subject to a certain set of OSHA rules, which the contractor here followed, and the $3000 fine is invalid.  But if they aren't, then installing the panels is subject to a different set of rules, and the $3000 fine is valid.

The Ninth Circuit concludes that the plain meaning of "roofing materials [or] equipment" answers the question.  Nothing fancier or more complicated than that.

So?  Whatchathink?  Is a solar panel a type of roofing material or equipment?  After all, you're just as qualified as the Ninth Circuit to decide the common meaning of those terms.  What's your call?

On the one hand, solar panels are (as here) installed on the roof, typically by roofers.  On the other hand, the solar panels are typically installed on top of the roof, though they (partially) cover the roof as well.

Roofing materials or equipment?

The Ninth Circuit says no.  So the fine's valid.

To me, it's actually a close call.  Indeed, my initial impression was that solar panels are indeed a type of roofing equipment.  Maybe in part because when my wife and I looked into having solar panels installed on our own home, we were told (by the roofing contractor) that they'd have to cut out some or most of the clay roofing tiles to install the panels, which would then cover the resulting gaps.  That sounds a lot like a type of roofing, or at least roofing materials or equipment.  Even though it's on top of what we normally think of as the "main" roofing material.

But the Ninth Circuit decides otherwise.  Fair enough.  Maybe right, maybe wrong.  I'm not sure I'm going to spend all day thinking about a close case in which a whopping $3000 is at stake.

Though I do have a marginal critique about the definition employed by the per curiam opinion.

Recall that the question is what we mean by "roofing material" or "roofing equipment."  Those are nouns.  Yet the definition that the Ninth Circuit's opinion relies upon (1) is for the word "roof," not "roofing" (even though it's the latter word that's the one used in the regulation), and (2) is for the word "roof" as a verb, which is not how the word is used here.  (As a verb, "roof" does indeed mean to provide cover with a roof -- that's the "action" word -- but as a noun, the word "roof" can have a very different meaning.)

Now, I'm not enough of a grammarian to know for sure what you do when you turn a noun (roof) into an adjective (roofing) that describes a different noun (material or equipment).  Still.  Seems weird to use the verb definition when you're trying to figure out the meaning of a particular noun.

Anyway.  Close case.  I'm not sure the plain meaning of the relevant words is really all that plain.  Or why someone installing material on a roof (as the petitioner undeniably did here) isn't okay to follow the regular old rules for someone installing roofing equipment -- e.g., shingles -- since the risk of falling seems equivalent whether you're installing shingles or solar panels.  But what do I know?  I'm freaked out by being on a high roof in any event.

(I also wonder what the Ninth Circuit would do with solar shingles, which seem -- sort of like regular solar panels -- to provide both solar power as well as covering for the home.  Is that a different result, or the same thing?)

U.S. v. Brown (9th Cir. - June 5, 2019)

I suspect that the Supreme Court will reverse this opinion.

An (essentially) anonymous tipster at a YWCA calls the police and says that there's an African-American man with dreadlocks, a camouflage jacket and red shoes carrying a gun.  The police promptly spot someone who looks just like that in the area, and follow him in their vehicle for a couple of blocks.  When they turn on their siren, the individual runs away from them.  The police catch him and discover the gun and some drugs.

The Ninth Circuit holds that the stop was impermissible.  Not enough reasonable suspicion to conduct a Terry stop.

There's a lot in the opinion that makes sense; that having a gun is likely lawful in the state, that lots of innocent people (including, perhaps especially, minorities) distrust and may run from the police, etc.

But the standard for a Terry stop -- a "brief, investigative detention" -- is low.  And having a gun (in public, anyway) is a big deal, even if it might well be lawful in a number of circumstances.  Perhaps most importantly, running from the police is generally viewed as a big deal.  As a "flight" of some sort that may well suggest criminality.

I doubt that a majority of the Supreme Court would conclude as the panel does here.  And this may be precisely the type of case where the Court grants certiorari to spank down the "liberal" Ninth Circuit and it's "crazy" views about search-and-seizure jurisprudence.

Wednesday, June 05, 2019

Rudisill v. California Coastal Commission (Cal. Ct. App. - June 5, 2019)

You don't see many people get sanctioned for filing frivolous anti-SLAPP motion in the trial court.  When it happens, you don't see many such decisions get reversed.

But it happens here.

Worth mentioning on those rare occasions when it transpires.

McMillin Homes v. National Fire & Marine Ins. Co. (Cal. Ct. App. - June 5, 2019)

It's hard to argue that a decision about the applicability of a particular exclusion in an individual insurance policy as applied to a certain set of facts raises a critical issue the answer to which the universe (as opposed to the parties) awaits with bated breath.  Nonetheless, some of those cases get published, and that's fine.

Today's opinion not only gets published, but gets published even after the parties settle the appeal and dismiss it.  The Court of Appeal says that it "elected to proceed with the opinion given because the appeal was fully briefed and raised important issues."  The truth, of course, is that the court had already drafted its 25-page opinion at the time of the dismissal, and (understandably) didn't feel like just throwing the thing away at that point.  (The two statements are not necessarily inconsistent.)  So it published the opinion regardless.  Even though, at that point, the parties didn't care.

Monday, June 03, 2019

U.S. v. Knotek (9th Cir. - June 3, 2019)

A lot of Ninth Circuit opinions involve kicking out non-citizens from the country.  Today's opinion, by contrast, involves kicking out a citizen; in particular, sending him over to the Czech Republic to be incarcerated.  Different from the usual fare.

It's an extradition opinion.  The relevant treaty -- like many of them -- says that the respective countries aren't required to extradite their own citizens.  But a fairly recent federal statute says that the President is authorized to send U.S. citizens away if s/he wants.  Does that work?

The Ninth Circuit -- like virtually all courts -- says "Yes."  Which is not surprising.  It's a pretty straightforward interpretation of the relevant textual provisions.

The complexity is an old Supreme Court opinion that held that an extradition treaty (like the one at issue here) that says that you're not required to extradite your own citizens doesn't itself authorize such extradition; that there needs to be something else.  Hence the issue.  The petitioner here says that the U.S. authorizing statute -- which post-dated both the treaty as well as the Supreme Court's holding -- is unconstitutional, since it wasn't approved by the Senate in the manner required by a treaty.  Not a frivolous argument.  But one that the majority, like most courts, rejects.

So the 62-year old U.S. citizen here gets sent to the Czech Republic to serve a four-year sentence for a not extraordinarily serious property crime (attempted economic extortion).  Which isn't awesome.  Though if you don't want to serve time in a Czech prison, maybe don't go to that country and commit a crime there.