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

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

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

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

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

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

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

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

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

Which is the part that actually matters.

But shell first, money later, I guess.

That's the theory, anyway.

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

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

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

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

Is it okay to make that argument?

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

The majority also holds that the error was not harmless, even though the California Court of Appeal had held (in an unpublished opinion) that it was.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pacific Choice doesn't like that.  So sues.

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

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

Affirmed.

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

This one is not entirely unexpected.

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

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

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

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

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

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

Leaving none of the original judges to support the thing.

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

Unity.

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

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

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

Hopefully even more unusual.

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

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

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

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

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

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

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

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

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

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

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

What's the call?

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

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

Time will tell.

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

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

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

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

How horrible.

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

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

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

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

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

And the Ninth Circuit agrees it can do so.

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

That's a pretty big deal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With which I couldn't agree less.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Are we seriously doing this?

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

Take that, evil.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That strikes a fairly resonant chord with me.

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

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

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

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

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

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

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

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

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

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

U.S. v. Herrera (9th Cir. - Sept. 9, 2020)

Two brothers create fake companies with fake employees, and then file fake wage reports with the California Employment Development Department (EDD) that report fake earnings for these fake employees.  Then the fake companies "lay off" the fake employees and the fake employees file for and collect unemployment benefits from the EDD, which the brothers then split.  The brothers make several million dollars as a result of this scheme.

That's actually a fairly creative crime.  The only reason they got busted was because an anonymous person tipped off the feds on a hotline.  Otherwise the brothers would still be making money to this day.

Definitely more lucrative than robbing a bank or most of your "traditional" crimes.

Plus, even after one of the brothers gets caught, he pleads guilty without a deal and only gets seven years in prison.  So live it up for quite a while with millions of dollars in your pocket and then serve some time.  Not the worst life in the world.

Totally immoral, of course.  But still.  Creative.

Rational criminality, perhaps.

Rodriguez v. Newsom (9th Cir. - Sept. 8, 2020)

I'm happy for lawyers to do pro bono work.  Thrilled, even.  Cranking out well-written briefs for non-paying clients is good for the soul (even if not the pocketbook).

So the fact that there are 30-plus lawyers listed on the caption as representing the plaintiffs in this public interest suit doesn't bother me.  Good for them trying to make the world better.

Yet, if it were me, I would not spend my time -- as David Boies and eight or so of his colleagues at Boies Schiller do here -- litigating a lawsuit that says that California should not be permitted to award all of its electoral votes (in a "winner take all" fashion) to whichever presidential candidate obtains the most votes in California in the 2020 election.

Call me crazy, but I might be able to find other uses of my time that I might find more socially beneficial.  Made even more so by the fact that there's an on-point Supreme Court case that holds that "winner-take-all" regimes in presidential elections are perfectly permissible.  Which -- not coincidentally -- is partly why that's precisely what every single state but two in fact do.

I don't doubt that Boies and his colleagues wrote a great brief.  And it might well be the case that federal presidential elections would be better off (fairer, etc.) if every state allocated its electoral votes proportionally to each candidate -- or, better yet, that we just got rid of the electoral college entirely and elected the person with the most votes as president.  I could be down for that.

But filing a lawsuit that in 2018 that says that California should ditch its winner-take-all rules isn't my particular cup of tea.  If only because it ain't gonna work.

That's, again, not to detract from the effort.  Kudos for working on a nonpaying matter rather than just cranking out higher bills on paying work.  I'm sure the associates much preferred working on this brief than, say, doing a document production or answering interrogatories in an insurance coverage dispute.  (Partners too, I suspect.)

But, on this one, you're Sisyphys, not Zeus.

P.S. - Amongst the lawyers that the Ninth Circuit lists on the caption as representing the plaintiffs are three lawyers for "Munger Golles & Olson LLP" (spelled that way not once, but twice, for two different Munger offices).  Call me crazy, but I'm pretty sure that's a typo, and not the way that firm was listed in the actual briefs.  (Otherwise, someone's getting fired.)

People v. J.E. (Cal. Ct. App. - Sept. 8, 2020)

There's a lot to be said for Justice Streeter's partial dissent in this case.  It demonstrates insight, compassion and a keen sense of practical reality -- attributes that are wonderful to see in an opinion.

But I'm still not entirely persuaded.

Justice Streeter makes a doctrinal point as well as a policy point.  As for the former, he says that there's not clear and convincing evidence here sufficient to rebut the presumption (established in Section 26(1) of the Penal Code) that the 13-year old child in this case was unaware of the "wrongfulness" of her conduct.  Justice Streeter highlights the factual context of the case and the child's upbringing to say that she might well not have fully understood that what she was doing was wrong.

But I think that Justices Tucher and Pollack have the better of the argument on that point.

The facts are surely disturbing.  You don't generally want to read that a 13-year old child has been charged with battery on a police officer (!) and resisting arrest.  Are we really at such a stage in society?  If so, how depressing is that?

The factual background about how we got to this state of events is equally -- if not more -- depressing.

A mother (A.R.) and daughter (J.E.) get into an argument.  That happens sometimes (unfortunately).  This time it's about cleaning the house.  The argument escalates when A.R. (I'm going to a call her "Amy") pushes J.E. (I'll call her "Jenny").  Jenny significantly escalates the dispute further by hitting her mother a couple of times in the face, causing her nose to bleed.

That's never good.  Nope.  Not at all.   When daughters are punching mothers in the face, we're not in a good place.

After hitting her mother, Jenny bolts from the family home, and Amy calls the police to find her.  The police arrive and Amy fills out a citizen's arrest form for battery, which Jenny has indeed committed.

The police then spot Jenny down the street and go to her, telling her she's got to come with them back home so they can collectively "figure out how to handle" the situation.  Jenny's uninterested, and tells the police "F*** you.  I'm not going to go with you guys," and begins walking away.  The police tell her to stop numerous times, but she keeps on walking, at which point the two police officers grab Jenny's arms (one on each side) and say "We're going to escort you home."  Prompting Jenny to start (perhaps predictably) twisting and turning and flailing in an attempt to get away from them.

Now, if this were all that transpired, I'd be somewhat sympathetic to Justice Streeter's point.  Yes, what has gone down thus far technically counts as "resisting" a police officer.  But it's a kid.  Doing what kids sometimes (unfortunately) do in the context of being restrained.

But it goes further than this.

The police then handcuff Jenny and start walking her back to the patrol car.  Jenny then starts spitting at them, as well as kicks a different vehicle, causing a dent.  Uncool.  Then the officers place Jenny in the back seat of the vehicle, and while she's lying there, Jenny kicks one of the officers in the gut.

Very much uncool.

Fortunately, the officer saw the kick coming, so she was able to pull back sufficiently so the kick didn't hurt much.  Still.  Deliberately kicking a cop in the stomach.  Not good.

That's the evidence for resisting and battery.  Fairly extensive.  We've still got to clearly prove that Jenny knew that what she did was "wrong" (to rebut the Section 26 presumption about minors of her age).  But any rational adult viewing the situation would surely recognize that we're dealing with a non-trivial legal infraction.

There's other stuff in the opinion that may provide some insight into Jenny's upbringing and why she acted as she did.  For example, Amy testified at trial that she never taught Jenny right from wrong and taught her to "stand up for herself" when confronted.  And this was far from the first time that Jenny implemented her mother's alleged instructions.  At school, Jenny had already been suspended twice for "being physically aggressive and making threats towards staff."  She'd also been "disciplined on several occasions for unexcused absences, disrupting class, using profanity, and being under the influence of marijuana."

Remember:  This is a 13-year old girl.  And this is already her background.

For additional details about the mother-daughter relationship, one might also glean some knowledge from their interactions after the police officers drove Jenny back to her mother.  The officers had Amy talk to Jenny while she was in the vehicle, presumably to "talk things through" and to see whether the relationship could be salvaged or whether they needed to temporarily remove Jenny from home and put her in juvenile hall.  That question was sufficiently answered (in my mind) when the mother yelled at her daughter:  "I hope you die. I hope they beat your ass in there. I hope they never let you out."

Yikes.

So putting Jenny back with mother seems like a definite no-go, so the officers ask Amy to step back from the vehicle so they can transport her to juvenile hall.  At which point Amy tells the officer:  "F*** you b****."  Classy.

Okay, so I get it.  Jenny's home life is not great.  She's not in a good place.  At all.

Was there clear and convincing evidence that Jenny knew that what she was doing was wrong?  Justice Streeter doesn't think so.  Not given Jenny's background.  Nor given the overarching social milieu in which the relevant interactions transpired (as Justice Streeter notes, Jenny is African-American, and needless to say, minority-police interactions are a fairly not topic in the news these days).

But on this point, I think that the majority opinion has the better of the argument.  Yes, lots of what Jenny did was surely instinctive.  With respect to the initial flailing and resisting the police officers, I could see a definite argument that Jenny didn't necessarily know that was wrong -- particularly since you're allowed to walk away from the police in lots of different contexts.

But when Jenny (1) spit at the officers, (2) kicked an adjacent vehicle hard enough to make a dent, and then (3) kicked one of the officers in the stomach; well, at that point, I feel exceptionally confident that Jenny knew that what she was doing was wrong.  Was definitely not allowed.  Sufficient to rebut the presumption of Section 26 of the Penal Code.

Do I think that Jenny had impulse control problems?  Of course I do.  Like many 13-year olds.  Times a thousand, perhaps.  But I do think she knew it was "wrong" to spit at other people and to kick them in the stomach?  Yes.  Yes I do.  Just like I think Jenny knew it was wrong to punch her mother in the nose multiple times.  Notwithstanding Amy's instructions that Jenny should "stand up for herself," I think it's definitely the case that Jenny knew that it was "wrong" to engage in these events.

She still did it, of course.  But she knew it was wrong.  Even if she found it exceptionally difficult to control herself and her emotions in the moment.

And the fact that Jenny had already been suspended from school twice for "being physically aggressive and making threats towards staff" only further proves the point.  She had done similar things in the past at school, and she received official adverse consequences for doing so.  When you get suspended twice for threatening school officials, that's a lesson that it's not okay to do so.  I'm fairly confident that lesson extends to "don't spit at police officers or try to kick them in the stomach."  It's not a lesson that's easy for every 13-year old to fully internalize or unvaryingly follow.  But the lesson was received and fully understood.  Of that I'm confident.

So, in the end, while I understand Justice Streeter's contrary perspective, on these facts, I find the majority opinion more persuasive.  The presumption established by Section 26 was adequately rebutted in this case.

(Parenthetically, I'm not even sure that I find the underlying presumption especially helpful or factually accurate.  Section 26 derives from common law presumptions about "children" and their capacity for moral reasoning.  We know a fair piece more about these things these days; though, admittedly, it's still a difficult area, particularly when attempting to draw a somewhat bright-line age-based rule.  But I'm not sure that it's true that your average 13-year old doesn't understand whether the majority of common criminal acts are "wrong".  Seems like, as a factual matter, most do.  I randomly noticed a law review article back from 1979 that seemed to have a critical take on the Section 26(1) presumption, and also noticed that it appears to be written by this judge back when he was a law student.  Interesting.  Worth a thought, anyway.)

Justice Streeter's partial dissent also has a policy point, one that's definitely worth considering as well as (I'm sure) somewhat motivates his doctrinal and factual conclusions in the present case.

Justice Streeter argues that punishing J.E. overcriminalizes her conduct.  That's good for no one, he argues.  And, FWIW, there's a pretty good law review article on this point as well, if you're in the law-review-reading state of mind. (Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform (2013) 98 Cornell L.Rev. 383).

I get that point.  Mind you, we're only "charging" J.E. with misdemeanors here.  And I put "charging" in quotes because we don't imprison minors; we just subject them to juvenile justice proceedings.  To take the present case, for example, based on what she did, J.E. was declared a ward of the court and placed on probation.  That's an infringement on liberty, to be sure.  But it's not like we're putting her in prison for hitting a cop (or her mother).

Still, Justice Streeter argues that this is too much.  We're using criminal law enforcement to solve social problems.  That's not right.

I get the argument.  It's a powerful one.

I'm just not so sure how far it goes in the present case.

We're unfortunately faced with a choice.  Yes, putting J.E. on probation and "into the system" is not perfect, and generates real downsides.  But the alternative is what?  Put her back home with her mother and hope for the best?  Come on.  Let's remind ourselves that the mother told her kid "I hope you die. I hope they beat your ass in there. I hope they never let you out."  Whereas J.E. on the day in question repeatedly punched her mother in the face and on prior occasions, according to mother, "hit her with a hanger and threatened to kill her."

Not putting J.E. "into the system" seems like it's just flatly giving up on her.  Saying, essentially:  "We don't care what you and your mother do to each other, or what you become as a result.  Deal with it.  It's your problem, not ours."

It's not that I have illusions about the juvenile justice system, or think that juvenile hall is a wonderful summer camp experience (or that being on supervised probation uniformly works).  It's just that at the present time, in contexts like these, it might well be the best of two very bad alternatives.

Would it be great if we could have a social worker visit this family twice a week, get the parent and child into therapy, teach everyone coping skills, etc.?  Of course it would.

But that's not going to happen.  Not absent state compulsion, anyway.  Which is precisely what the juvenile justice system permits.

For some reason, mother and daughter think that things are "just fine" as they are.  That getting suspended multiple times for threatening violence is par for the course for a 13-year old.  That telling your child that you hope she dies is acceptable parenting.  That punching your parent in the face is a permissible way to "stand up for yourself" as you've been taught.

Nope.  Not for me, anyway.

I want the state to at least try.  Try hard.  The juvenile justice system is far from perfect.  But in a context like this one, I want there to be a person -- a person in authority (e.g., a person in a robe) -- to permissibly intervene and to try to make things better.  Not only for society's sake, but for the sake of both the child and her parent(s).  We gotta do something here.  We can't just let things go on as they are.  The status quo isn't working.  At all.  Making J.E. a ward of the court and putting her on probation isn't awesome.  But at least it has the chance of making things better.  Putting her back in the house and hoping for the best won't work.  We know that.  So if we care -- and I do -- we've got to try something.

Even at the risk of "overcriminalizing" certain behavior.  I'm exceptionally sympathetic to the view that we routinely overcriminalize.  But in contexts like this one, we've got to do something.  And while, yes, I'd like that something to be better than what we often do, I'm also not willing to let the perfect be the enemy of the good.  Sometimes, as here, what we're going is simply better than the alternative.  There's no better defense than that.

Which is why, although I'm sympathetic to everything that Justice Streeter says, at the end, I come out the other way.  At least for J.E.

With the caveat that I have no illusions about this either.  I know that the status quo won't work.  But I also realize that the juvenile justice system probably won't work either.  Most likely, we're not looking at a good outcome.  That's extraordinarily unfortunate.

But at least we have to try.  Something.  Something better than the status quo.

Caliber Paving Co. v. Rexford Industrial (Cal. Ct. App. - Sept. 1, 2020)

I had to go back and reread this opinion four times -- the fact section, anyway -- before I could follow exactly who was what and the role each party played.  Once I finally understood the scoop, my initial impression about the merits somewhat changed.

On first read, Justice Fybel seems exactly right as to the doctrine.  The usual rule is that you can't interfere with someone else's contract, lest you be liable for tortious interference.  A classic tort.  If you tell a party to breach his contract with X, with knowledge of that contract, and he does so, then you're liable.  (He's also liable for breach of contract, of course, but you're liable too -- and as a tort.)

The trial court here granted summary judgment to the defendant, holding even though he was not a party to the contract, he wasn't a "stranger" to it because he "had an economic interest in it" and hence couldn't be liable for tortious interference.  (I'm using "he" instead of "it" purely for clarity reasons, even though we're actually talking about companies here.)  The Court of Appeal reverses, saying that's not right, and that the majority of appellate opinions agree.  And that was my sense too.  Whether you have an economic interest (or whether your conduct was "wrongful") might be relevant, IIRC, to a prospective economic advantage claim, but not to tortious interference; as for the latter, if you're not a party, you can potentially be liable for tortious interference.

So it seemed to me like Justice Fybel was right.

But then I went back to fully understand the facts.  And once I did, I wasn't nearly as convinced as I was at the outset of my initial doctrinal/equitable intuition.

Because, here, an owner of some property hired a general contractor to do a ton of work on the property, and the company it hired someone else (a subcontractor) to pave the parking lot.  On a particular day, the contractor and subcontractor get into what can rightfully be called (in my view) a snit.  The sub wants (or needs) to get the lot paved that day so goes to drive its machines on the lot but can't do the paving because there's some equipment from the general parked on the lot. The sub is upset, so drives away without doing the job.  That day or the next, the parties get into a fight; the sub complains about the equipment blocking the lot and emails a "bill" to the general for $7,500 -- which a few hours later increases to $15,000 -- for blocking the lot on that day, and says it's not going to pave the lot until the "bill" gets paid (which it says is legitimate), but the general refuses to pay and says that's not allowed by the contract.

So the parking lot's not getting paved -- there's an impasse.  And that day or the next the owner of the property finds out about the snit.  Apparently (or allegedly, at least), the owner takes the general's side in the snit and thinks that the sub's being unreasonable, so (allegedly) tells the general to get replace the sub so it can get its f*ing parking lot paved.  Which the general does.

Resulting in the suit filed by the sub -- for breach of contract against the general, and for tortious interference against the owner.

Once I understood those facts fully, I gotta be honest with you, I sympathized with the owner.  He paid for his parking lot to be paved.  It was not getting paved.  He wanted it done.  And he had a personal opinion -- right or wrong -- about which of the two complaining parties was the problem here.

What was he supposed to do?  Just sit there while the two fruitlessly argued about whether the $15,000 "bill" was going to be paid in advance?  That's not getting the parking lot paved.

So he (allegedly) picked the party he thought responsible and said "Get 'em out of here."  Which the general then did.

I have no doubt that the general's liable for breach of contract if the contract didn't allow that.  But I am not entirely sure I fault the owner in this context -- much less want them liable for a tort for solving the problem in a seemingly reasonable fashion.   The owner could surely say to the general:  "I don't care what the problem is.  Work it out. PAVE MY FREAKING LOT."  At which point the general would surely say:  "We'd love to, but the sub won't do it unless we write 'em an extra $15,000, which we're not going to do, because it's pure extortion."  At which point what's the owner to do other than threaten and be upset?  It's what we used to call a Mexican standoff.  There's no solution.  The general's not going to move (and rightly so, if he's right about the contract) and the sub's not going to move either (and, again, rightly so, if it is right about the contract).

But the owner doesn't care who's right.  He just wants the lot paved.  So there's a solution:  Fire the sub and pave the lot.

That seems like a reasonable solution, especially if (as the owner suspects) it's the sub who's being unreasonable.  It also seems socially optimal.  The lot gets paved, which we (society) wants and which the owner ENTIRELY REASONABLY expects.  And if it turns out the sub was right about the contract and $15,000 "bill", fine, it'll sue and get paid by the general, and maybe the general will be able to seek indemnity from the owner (or maybe not).  Regardless, the general has to decide what to do, and it did so here.  That seems fine.  Do we really make the world a better place by imposing tort liability on the owner.  Who -- and I know I've said this before, but it constantly seems to me to bear repeating -- JUST WANTS HIS PARKING LOT PAVED.

So I don't know.  I agree that "prospective economic interests" and the like don't generally seem to me to be a defense to tortious interference.  But when it's a situation like this one, where it's the owner of the property, I can definitely see an argument against tort liability.

The owner could, of course, have simply left it up to the general, with no instructions at all.  But I very much suspect that that ends up in a continuation of the standoff and the lot . . . not being paved.

U.S. v. Cano (9th Cir. - Sept. 2, 2020)

It's a pretty powerful paragraph by Judge Bennett, joined by five other Republican appointees to the Ninth Circuit.  They dissent from the refusal to rehear en banc a case holding that while we routinely search for contraband at the border (drugs, etc.), that doesn't mean you can routinely forensically search a cell phone, since it can't contain contraband.  (Other than child pornography, in which case, go for it.)

Judge Bennett says:

"Border officials in our circuit are now constitutionally barred from forensically searching a traveler’s cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related crimes; or evidence of non-child pornography contraband. This is the sovereign power at its nadir, not its zenith."

You can easily see the persuasive effect of that argument.  Most people aren't in favor of terrorist attacks, or not preventing them.  People want to be safe.

But it's probably worth mentioning that the thing that the dissent is outraged that the government can't do can't generally be done anyway -- because we almost always require probable cause before you can search someone (e.g., their phone).  So even if we suspect that someone's a terrorist -- and that's a scary thing to be sure -- we don't let the government search their private phone to see if that's true unless the government officials obtain a warrant from a neutral judge or can show probable cause.  "Reasonable suspicion" isn't sufficient.

You could argue for a "terrorist exception" to the Fourth Amendment, perhaps.  Though I suspect that the history that led up to the adoption of that Constitutional provision -- e.g., our experience with the British -- will shed a fair amount of light on why we don't want the government to have substantial leeway to conduct warrantless searches of people (and their property) that government officers merely suspect are treasonous or enemies of the state.  You could also say that the "border" is different and that even your cell phone or computer can get forensically downloaded and intimately examined in this area without a warrant or probable cause.  But at least as a matter of history, the panel's certainly right that, thus far, we've only allowed searches for contraband. Moreover, since what doctrinally counts as the "border" covers a fairly broad and important swath of the country (e.g., over 60 miles up the I-5 at the San Onofre checkpoint, thereby covering all of San Diego county -- home to several million, including some people about whom I profoundly care), I'm not sure I'm willing to create a broad exception to the Fourth Amendment for anyone in the "border" areas either.

Still, if only as a rhetorical move, you see the power of Judge Bennett's argument.  We don't, in fact, want terrorists to sneak in.  We do, in fact, want to catch them.  And, for some, if that means no longer requiring probable cause or a warrant, with the necessary result that more innocent people are subject to a governmental search based on mere suspicion, so be it.  That's the cost of freedom.

The fight is really over what we mean by that last word.

People v. Murillo (Cal. Ct. App. - Sept. 1, 2020)

Here's proof that times do change.  Or at least change from my own personal experiences.

“During the evening of April 12, 1992, 15-year-old Mirna G., 14-year-old Gabriel N. and defendant gathered at a park with a number of others. At some point, it was decided that a group of these individuals would do a ‘beer run,’ meaning to take beer from a store without paying for it."

First of all,when I was 14- and 15 years old, I did not go on "beer runs" with my friends.  That came later in life.  A fair piece later.

I'm not saying that I'd have been totally uninterested in going on a beer run at that age were it feasible.  Though, to be honest, personally, I also don't recall having a particular interest in alcohol at that age. (Fast forward to 17 or 18 and I'll readily concede a slight change in interests, though even then, I was not a high school drinking type of person.  I make no similar representations about college.)  The point is:  I did not go on "beer runs" when I was 14 or 15.

Second, during my experiences, anyway, what we called "beer runs" were not what today's opinion calls a "beer run."  On a beer run, we went and purchased beer.  I was unaware that the terminology changed, at least as represented by this opinion, to mean going to a store and stealing it.  I'm not sure whether this is a temporal, geographic, or other type of variance.  But those words did not mean what they're said to mean here.

Finally, during the "beer runs" in my personal experience, no one got shot and killed.  Ever.  Unlike here.

A pretty substantial difference, I think.  For everyone involved.

Jaimes-Cardenas v. Barr (9th Cir. - Sept. 1, 2020)

I understand that when we write briefs as lawyers, we all try to put both the facts and our clients in the best possible light.  Judges sometimes do a similar thing.  They're not advocates, but nonetheless, when they write an opinion that "advocates" for a certain position, sometimes the opinion is a bit "tilted" as to what facts are conveyed and how they're set forth.

You see this most starkly (or perhaps most obviously) in death penalty cases.  Decisions that affirm almost invariably begin with excruciatingly long descriptions of the crime and the underlying suffering and focus on the offense and the victim.  Whereas decisions that reverse often somewhat minimize the offense and start out with a long personal history of the defendant and all his childhood troubles and the like.

You'll see the same things in other politically-charged cases, and sometimes in lower-profile cases as well.  Judges typically used to be lawyers.  Old habits are sometimes hard to break.

So I'm used to seeing somewhat one-sided versions of the facts.  I doesn't typically bother me much.  Par for the course.

Nonetheless, I thought this opinion was fairly striking on that score.

It's not that I'm not somewhat sympathetic to Judge Hawkins' view.  I am.

But even for someone like me, as I read the facts, I repeatedly had legitimate questions about how the recited facts were consistent with the "full" story.

Here's how the opinion recites the facts.  It's not long.  I'll put a few of my thoughts as I was reading the thing into brackets:

"Jaimes-Cardenas is a native and citizen of Mexico. He first entered the United States without inspection in or around 2008, and shortly thereafter met U.S. citizen Flora Rico. They coupled, eventually getting married and starting a family. [No problem. Totally fine. I get that we're making them sympathetic, using language like "coupling" and the like, but that's completely cool with me.] Flora, however, was addicted to methamphetamines, which Jaimes-Cardenas urged her to stop using. She responded with violence and abuse, threatening to call Immigration and Customs Enforcement (“ICE”) on him. One incident led to Jaimes-Cardenas’s arrest, after which he was transferred to ICE custody and voluntarily returned to Mexico. [I'm a little confused here; is Jaimes-Cardenas getting "arrested" -- did he commit a crime that's unmentioned in the opinion -- or is he just getting picked up by immigration and deported. Usually we say "detained" when it's just immigration. But whatever.] Less than a year later, he returned to the U.S. with the help of Flora, who was then pregnant with their first child.

After the child was born, Flora became increasingly abusive and controlling over Jaimes-Cardenas’s life. He suffered physical, emotional, and verbal abuse from her, but stayed in the relationship because of his children and love for Flora. [This reads a little one-sided, like it's coming from an advocate's mouth or purely one side's version of what happened, but okay.] Eventually, matters took a turn for the worse. Flora used more drugs and started selling drugs to support her habit. She left Jaimes-Cardenas and their children, only initiating contact when she needed money or was in trouble. After one particularly bad incident, the local Department of Human Services intervened, which resulted in JaimesCardenas losing custody of their six children (four biological) placed in foster care. [Huh? The opinion says the six kids get taken away from the father. But the opinion implies that the "bad incident" was from something only mother did. We generally don't take kids away from their father because their mother "left [father] and their children" and only "initiat[ed] contact when she needed money or was in trouble." It seems like we might be leaving out details about what the father allegedly did to lose his custody of the six kids. Rightly or wrongly, I'm sensing that there may well be more to the story here.] Flora later was arrested and convicted of possession of methamphetamine.

Jaimes-Cardenas then attempted to cut ties with Flora, but she showed up at his apartment to convince him to get back together with her. At the time, there was an active arrest warrant against her for failure to comply with the terms of her sentence. Jaimes-Cardenas had to go to work and left the apartment. Flora stayed behind, bringing in methamphetamine and drug paraphernalia. Later that day, Jaimes-Cardenas’s landlord informed him that police were looking for him because they found methamphetamine in his apartment. Despite Flora’s statement that the methamphetamine was hers, police arrested Jaimes Cardenas and charged him with possession, manufacture, and delivery of methamphetamine, as well as hindering prosecution for his failure to report Flora in light of her active arrest warrant. After his arrest, Jaimes-Cardenas’s counsel informed him that “he would likely face more detention by ICE and removal if he decided to fight the case.” He therefore pleaded to one count of possession of methamphetamine. [Was there really no argument at all that the drugs were his, or that he was also using? And it also seems weird that a lawyer would tell the client to plead guilty to a drug offense if he indeed was innocent as a way of avoiding deportation. Generally the way you stop getting kicked out is exactly the opposite: to plead not guilty to a drug offense and to fight the charges and prevail. Now, I wasn't there when the lawyer told him whatever he told him, so whatever, but the whole thing still strikes me as unusual, or at least a one-sided version of the facts.] 

The Department of Homeland Security (“DHS”) then initiated removal proceedings against Jaimes-Cardenas. [Which is exactly what you'd think they'd do after a noncitizen admitted to a drug crime.]"

Again:  I'm not Mr. Oh-An-Opinion-Is-Not-Perfectly-Neutral-What-A-Total-Horror type of guy.  I get that sometimes you frame the facts in a particular way (or, sometimes, they're framed for you by the particular procedural context -- e.g., on a summary judgment motion -- though that's not the case here).

But today's opinion nonetheless seemed to me to be at the relatively far end of the spectrum on this point.