Thursday, July 29, 2021

People v. Lapenias (Cal. Ct. App. - July 29, 2021)

I truly and sincerely don't understand why people think that testimony like this is permissible.

Defendant gets charged with molesting his stepdaughter.  The stepdaughter says he did it; defendant says he didn't.  As in many of these cases, there's not much (if any) physical evidence to support either side.  It is a classic credibility context.

As in most of these cases, the prosecution introduces expert testimony to explain why the alleged victim waited years before disclosing the abuse.  I've got no problem with that.  It makes sense to explain to the jury how the psychological effects of molestation might result in fear, secrecy, accommodation and delay.

But then the expert gets asked:  "Is it common for children to make up a story that abuse occurred, when, in fact it did not?”  To which the expert responds:  "No, that's rare.  There’s research that talks about false allegations, and . . . . it’s not a common thing for kids to fabricate such a story.”  (In this particular case, the question was asked by a juror; in other cases, it's asked by the prosecutor.  The answers by the expert also sometimes take different forms; e.g., that only about one to eight percent of allegations are false, or that studies have shown that only six percent of allegations are typically unfounded.)

The Court of Appeal holds today that it's improper to introduce such testimony, on the ground that it "invades the province of the jury" by essentially telling them that the defendant is guilty.  (Though the Court of Appeal here also holds that it was harmless error, so affirms the conviction.)

That makes sense.  But I have a more foundational question, one that the Court of Appeal neither asks nor answers:

Why is such testimony even minimally reliable; i.e., why does it satisfy the Daubert (federal) or Sargon Enterprises (California) test?

I get that this testimony derives from studies, and published ones at that.  But the methodology of those studies seem absurd.  In all of them, to determine whether the molestation allegation was purportedly "true" or "false," all you had was a person (or group of people) who investigated the allegation and who determined for themselves whether or not they believed the victim.  Sometimes it was CPS making the call.  Sometimes it was the researchers themselves.  Sometimes it was a panel.  But the point is, it was simply the call of a particular person or group of persons as to whether a particular disputed physical event actually occurred.

How's that "proof" of anything?

Sure, in an extraordinary small number of cases, we might be able to definitively call one side or the other "true" or "false" and rely on such a conclusion.  Let's say there's a video that catches defendant in the act.  Or maybe the defendant confesses, or the victim recants, or there's physical evidence that the defendant wasn't even in town on the day of the alleged crime.  (Even in those extremely rare cases we might be hesitant to come to a definitive conclusion; e.g., the confession might have been coerced, the victim might have falsely recanted, or the victim may have simply been confused about the date.)

Regardless, those are by far the minority of cases.  Most times, it's the alleged perpetrator's word versus the victim's, albeit with one side or the other occasionally bolstered by various forms of circumstantial evidence; e.g., whether the victim told others about the molestation, whether other victims made similar complaints about the perpetrator, etc.

Can you come to a conclusion in such cases?  Sure.  We do so all the time.  In both criminal cases as well as in civil cases.  We empanel a jury and come to a conclusion.  A conclusion that we understand fully might potentially be wrong, but a decision needs to be made, so we make one, pursuant to a given standard of proof that's established according to the competing social values at stake (e.g., beyond a reasonable doubt in criminal cases and preponderance of the evidence in civil cases).

But you can't do that in a study.  Or at least you can't do that just by getting together a group of people (or one person) and telling them:  "Decide yes or no who's telling the truth."  That's not an established or reliable methodology.  Or, at a minimum, shouldn't be.

Take Brett Kavanaugh, for example.  There's a ton of evidence about what he allegedly did or did not do.  It makes absolutely no sense to me for any purported "study" to "find" that the allegations that he sexually assaulted Christine Blasey Ford in high school are either "true" or "false."  Are the allegations in fact true or false?  Definitely.  Could some "study" so establish this fact by putting together even a thousand "experts" to so decide?  Absolutely not.  It's a judgment call.  And what's true for Kavanaugh is even more true for putting together a hundred (or even a thousand) self-selected molestation cases and deciding whether those claims are "true" or "false".  Except in outlier cases, yes, there is surely an objective truth, but we don't know what it is, or at least don't know sufficient to establish reliability of the type we generally require for a purportedly scientific study (which then gets passed on to a jury as established truth).

There are tons of objective facts that we simply don't know, and that we don't know regardless of whether we get purported experts to review the evidence and come to a conclusion regarding the truth or falsity of the underlying factual claims.  Let's just take, for example, questions about "Who shot first?"  Assume I want to test the following hypothesis:  "When two armed groups meet, the group with the smallest number of participants generally shoots first."  Maybe because I want to testify that based upon scientific studies, it's "rare" for the larger group to shoot first.  (Just like it's purportedly "rare" for kids to make up molestation allegations.)

So I go ahead and get a group of experts to examine a variety of prior armed conflicts to see who shot first.  Which side shot first at Lexington?  Who shot first at Gettysburg?  Did members of the Klan or the Communist Party shoot first at the Greensboro Massacre?  Things like that.  I'm super diligent and get together a huge group of experts -- fifty of the leading historians -- and I get them to say "true" or "false" to whether the smaller group shot first in these various examples.  And based on their subjective evaluation of the evidence, I want to testify:  "In over 90% of the cases, it's true that the smaller group shot first."

No way.  We don't know who shot first in these examples.  Regardless of the subjective evaluation of even super-qualified experts.  Sure, there's evidence -- tons of evidence, even -- in favor of one side or the other.  (Much more evidence than in molestation cases, I might add.)  But to try to say that a study like this can reliably come to a conclusion about the truth or falsity of these events is absurd.  No one would possibly think that's sufficient, much less that it's sufficiently reliable to be presented as a study with scientific validity at a trial to determine someone's guilt or innocence of a criminal offense.

I get that, at the margins, there are some things that we can reliably declare as "true" regardless of the existence of contemporary disagreement.  Humans have, in fact, landed on the moon.  (Sorry, Steph Curry.)  Lee Harvey Oswald probably did, in fact, act alone.  (Though, even there, notice the caveat.)

It's not that nothing can be established as "true" or "false".  It's simply that, in the pantheon of historical facts, whether or not a particular act of molestation has occurred is very much closer to the "Who shot first" examples than it is to the "Did we land on the moon" example.  And any study that purports to declare otherwise based simply upon the subjective evaluation of human observers isn't the type of study that we should declare reliable enough to admit at trial.

Do I personally believe that most molestation allegations are "true" rather than "false"?  Yes, I do.  Do I agree that many of the (minority-) "false" allegations occur in custody fights or other common types of cases, rather than in cases like today's?  Yes, statistically, I suspect that's probably true.

But no "study" of a type like the ones relied upon by these experts supports my intuition with any type of reliability -- much less the reliability we require at a criminal trial.

So, yeah, was the expert testimony here wrongly admitted?  Sure.

But the flaws, in my mind, go much, much deeper than simply invading the province of the jury.

Wednesday, July 28, 2021

National Pork Producers Council v. Ross (9th Cir. - July 28, 2021)

I'm not exactly in the dating world these days, but I suspect that on a first date, saying that you're a "lawyer" has both its upsides and downsides.  It may perhaps signify that you're an "earner" -- that's traditionally a good thing -- but it may also potentially signal (to some) that you're somewhat boring.

That latter conclusion might be rebutted if you were able so say things like "I'm a divorce attorney for celebrities" or "I litigate election cases against Donald Trump" -- or, depending on one's politics, "for Donald Trump."  But most of us are perhaps unable to say anything similarly facially exciting.  Truthfully, anyway.

That thought came to my mind as I read this opinion from the Ninth Circuit.  (One of seven from today, I might add.)

I don't imagine that appellant's counsel -- Timothy Bishop from Mayer Brown -- tries to pick up women in bars much, that he uses his professional status to do so, or that he'd elect to use today's case were he to decide otherwise.  Nonetheless, I imagine the following hypothetical conversation:

Woman:  What do you do for a living?
Brown:  I'm a lawyer.
Woman:  Oh.
Brown:  I represent the National Pork Producers Council.
Woman:  Pork producers.  How fascinating.
Brown:  I'm working to strike down a California law that makes sure that pigs don't live their lives confined to a pen that's less than 24 square feet.
Woman:  Yeah.  I have a boyfriend.

Monday, July 26, 2021

Pollack v. Tri-Modal Dist. Svcs. (Cal. Supreme Ct. - July 26, 2021)

It may not be per se unlawful to have a consensual relationship with a subordinate employee at your company, but it's fairly uniformly unwise.

See what I mean?

Friday, July 23, 2021

Genis v. Schainbaum (Cal. Ct. App. - July 22, 2021)

Sometimes an opinion is interesting not because of any doctrinal complexity, but simply because it describes a particular participant.

The lawsuit here involves one lawyer suing another lawyer for malpractice.  The lawyer who's the plaintiff is Darryl Genis, a well-known Santa Barbara DUI attorney.  The lawyer who's the defendant represented Mr. Genis in his federal criminal prosecution for willful tax evasion based upon the failure to file taxes for 2009, 2010 and 2011.  Mr. Genis alleged that his lawyer gave him bad advice in that prosecution, which resulted not only in Mr. Genis pleading guilty and going to prison for two years, but also being ordered to pay hundreds of thousands of dollars in restitution and penalties to the government.  So Mr. Genis sues.

The trial court dismissed the complaint, and the Court of Appeal affirms, both holding that since Mr. Genis isn't actually innocent of the offenses to which he pled guilty, he can't sue.  Those decisions are very much in line with existing law, so there's no real surprise there.

The opinion nonetheless made me wonder about Mr. Genis.  How does an attorney think he can get away with not filing taxes at all for years?  And since, according to the Court of Appeal, the central point of the plea deal with the feds was to enable Mr. Genis to keep his law license (because the deal made sure that the word "fraud" wasn't part of the record), I wondered if the plan worked.

So I looked up Mr. Genis' bar record, at which point I discovered this prior discipline as well as this one.  Both of those past events are, in my mind, relatively serious, but -- luckily for Mr. Genis -- didn't result in lengthy suspensions from the practice of law.

There was an additional active disciplinary complaint as well, which I assumed stemmed from the whole tax evasion thing (and indeed it did).  The records on that were incomplete, but I was able to find a newspaper article that helpfully described both Mr. Genis' current status as well as his prior plights.  (As well as contained a pretty darn good photograph of the guy.)  Apparently the State Bar judge has recommended that Mr. Genis be suspended for two years, even though the State Bar asked that he be disbarred.

Interesting stuff about an attorney who's (hopefully) unlike most other California lawyers.

Wednesday, July 21, 2021

Cahill Construction Co. v. Superior Court (Cal. Ct. App. - July 19, 2021)

I'm back from an at least partially-deserved vacation, and thought that this opinion was worth at least brief mention.  The Court of Appeal holds that the statute -- Section 2025.295 of the Code of Civil Procedure -- means what it says, and it's hard to argue with that conclusion.  CCP 2025.295 caps the amount of time the defendant(s) may depose a plaintiff if the plaintiff is suffering from (and suing for) mesothelioma and a licensed physician declares there's "substantial medical doubt of the survival of the [plaintiff] beyond six months.”   The cap is "seven hours of total testimony,” a trial court can grant up to an additional seven hours -- “for no more than 14 hours of total deposition" -- if more than 20 defendants appear at the deposition, the court determines that the additional time is warranted in the interest of fairness, and the additional time does not appear to endanger the plaintiff’s health.  The Legislature enacted that statute in 2019 in direct response to a prior Court of Appeal ruling that held that a deposition beyond 14 hours could be compelled in such circumstances, finding that this rule was being used to allow “marathon depositions” that were inflicting “undue emotional and physical harm on victims during their final days of life — even hastening death.”

Okay.  So that's the rule.  And the text of the rule is pretty darn clear.

Ordinarily, that'd also seem like just a fine rule.  Fourteen hours of deposition is a fairly long time.  Not infinite, to be sure.  You'd certainly like more if you were being sued for millions of dollars.  But a pretty decent amount of time regardless.  Especially for someone terminally ill with mesothelioma.

Now, here, there are not just 30 defendants.  There are over a hundred of them.  So you can see why the defendants might take some umbrage at being hard capped at 14 hours.  Each defendant understandably wants to examine the plaintiff at some length about his or her alleged exposure to the product of the particular defendant at issue.  Because, among other things, that's usually the most vulnerable part of the plaintiff's case.  Sure, s/he has mesothelioma, and it's almost certainly from exposure to asbestos.  But did it come from exposure to my asbestos product?  That's the core issue.

The Court of Appeal says that each defendant was able to depose the plaintiff within the 14-hour period about the individual products at issue "briefly."  I'm sure that's true.  But having done the math, even if the 100-plus defendants didn't depose the plaintiff about anything else (e.g., the common claims and defenses), each defendant would only have 8 minutes -- max -- to depose the plaintiff about exposure to defendant's particular product.

That ain't much.

It'd be different, of course, if the defendants were able to fully question the plaintiff at trial.  But we all know that's not likely to be the case, and that plaintiff probably won't be around at that point.  So the only testimony is going to come from the deposition.

So those eight minutes are pretty darn precious.

Still, the Court of Appeal says that the statute says what it says, and that the Legislature made the call.  Defendant argues that it's got a due process right to examine the plaintiff, but the Court of Appeal says there's not much of a constitutional right to discovery in the first place -- we could (if we wanted) have the parties go directly to trial -- so there's no constitutional bar to doing what the Legislature has done.

Okay.  You can see why the case comes out that way.

To me, though, one of the disturbing parts of this fact pattern is that the plaintiff's lawyer got to depose the plaintiff himself -- at that same deposition -- for over eight hours.  You've got a right, of course, to depose your own client, and if you think your client might well not be around for trial, that's probably a pretty good idea.  You'll want to introduce that testimony at trial.

There just seems something fundamentally wrong, however, about having a time-unlimited ability for a plaintiff to depose himself and yet imposing a hard 14-hour cap on the defendants.  I'm not sure that it's a due process problem (though maybe it is).  It just seems unfair and/or unfounded.  I get that we don't want dying victims harassed in a deposition forever during their final days.  But if the plaintiff can -- and wants -- to use his own deposition to advance his own claims for a lengthy period of time, it seems only fair that defendants obtain at least a "fair" amount of time in response.

And I'm not sure that 8 minutes a defendant counts as fair.

The statute says what is says, and to a substantial degree, the Legislature gets to make the call.  But I definitely wouldn't want to be a defendant in this procedural posture.  Particularly with millions of dollars on the line.

Wednesday, July 14, 2021

People v. Potter (Cal. Ct. App. - July 14, 2021)

This is certainly good police work, and at some level, I'm impressed with the talent of the officers here.  They suspected that the defendant had molested his five-year old daughter, and they interrogated him until he (essentially) confessed.  They first got him to admit that he had been molested himself as a child, used that fact to purportedly empathize with his situation, and used his purported love for his daughter and care for her welfare to get him to admit to improper touching (and write a note apologizing).  During all of this, the police made clear that the defendant was "free to leave" if he wanted, and thus didn't advise him of any of his Miranda rights -- which might have made him more suspicious of the officers' claims that they were simply looking out for his welfare and seeking to "understand" why he did what he did and ostensibly put it in the best possible light.

It was a masterful manipulation of someone's psychological state.  Resulting in a confession that likely seems truthful.  Well done.

On the other hand, I couldn't help feeling somewhat bad about the whole thing.  The only reason the guy here confessed was because he was actually torn up inside about what he'd done.  (As well as not at all sophisticated about what the police officers were doing to him.)  There's zero way a person who was truly and completely evil would have fallen for these tricks or confessed.  A person without remorse might well have gotten off entirely; by contrast, the defendant here goes to prison for 15 years to life.

We obviously want child molesters to be punished and incapacitated.  It just feels inequitable that tactics like this enable the worst of the worst to escape, yet convict those who are (at least in part) remorseful for what they've done.

I'll add one doctrinal point about the opinion.  Justice Hoch holds that the interrogation wasn't custodial because (in large part) the officers told defendant that he was free to leave if he wanted.  Now, that's not a bright-line rule, and there are other opinions that hold that interrogations remain custodial (and thus require Miranda warnings) even when officers said the exact same thing.  The facts of Torres -- rendered by the Court of Appeal a couple years ago -- are incredibly to those in the present case.  The Court of Appeal held there that Miranda warnings were required.  Justice Hoch says that the facts of the present case are distinguishable.  But, in truth, they're not.  Maybe Potter (the current opinion) is right, or maybe Torres (the prior opinion by Justice Nares) is right, but they're almost assuredly not both right.  Justice Hoch's attempt to distinguish Potter just doesn't work.  If it was custodial there, it's custodial here, and if it's not custodial here, it shouldn't have been custodial there.

Courts of Appeal are allowed to disagree with each other.  This is one of those cases where I thought the more forthright answer would be to simply admit that horizontal precedent went the other way but say it was wrongly decided, rather than attempt to distinguish the cases.

Monday, July 12, 2021

NLRB v. Nextar Broadcasting (9th Cir. - July 12, 2021)

I'm bereft of opinions from the California Court of Appeal today because either its website is down or my ISP won't let me access them (for some inexplicable reason).  But the Ninth Circuit is working away, and pumped out (inter alia) this opinion.

I was somewhat surprised that Nextar Broadcasting chose this fight.  It's about some tiny conditions of employment in a collective bargaining agreement that expired, and the NLRB said that the company could not impose them before discussing them with the union.  Seems reasonable.  The Ninth Circuit thought so as well.  There might be bigger fish to fry as opposed to litigating in the Court of Appeals.

I also noticed that in-house counsel for Nextar (from Texas) argued the case himself.  I guess that cuts down costs, at least.  Though not arguing -- and losing -- at all would have cut costs even more.

Anyway, if you are wondering whether there are local broadcast news stations still operating in Portland, Oregon, the answer from today's opinion is definitively:  Yes.

Wednesday, July 07, 2021

Posos-Sanchez v. Garland (9th Cir. - July 7, 2021)

It's well-known that death penalty cases take forever to progress through the system.  It's less well-known that immigration cases sometimes take (relatively) forever as well.

Like this one.

There's no doubt that the petitioner here, Angel Posos-Sanchez, is removable from the United States.  He's been removed before, after all.  The central issue is simply whether he's eligible for voluntary departure from the U.S. -- or whether immigration officials get to select the date he gets booted.

All of the decisions below uniformly concluded that Posos-Sanchez gets removed, and that he was stopped and released at the San Clemente checkpoint in September 1990 -- over thirty years ago -- doesn't mean he was "admitted" to the United States.  Posos-Sanchez is a citizen of Mexico, but has resided in the United States since 1980.

As today's opinion explains, "in either 2010 or 2011, Immigration and Customs Enforcement removed Posos to Mexico (the record does not explain how or why this removal came about)."  Then "Posos tried to reenter the United States at the San Ysidro Port of Entry on March 9, 2011. There, immigration officials stopped the vehicle bringing him into the country and found him hiding in the trunk of the car. Posos admitted to these officials that he lacked the necessary documentation to enter or remain in the United States. They therefore detained him and referred him to the Immigration Court for removal proceedings."  Posos-Sanchez was subsequently released on bond in May of 2011.

So his case has been going on now for over a decade.  And it's not like he's been bouncing around the various courts or anything; it's a straight shot.  He lost before the IJ, he lost before the BIA, he lost in the district court, and now it's 2021, and we're just now getting a Ninth Circuit opinion.  Which in turn remands the case back to the immigration judge "to make further findings and conclusions about his eligibility for voluntary departure."  So presumably another IJ-BIA-district court-Ninth Circuit round.

Maybe this time, in under a decade or so.

Tuesday, July 06, 2021

Khosravan v. Chevron (Cal. Ct. App. - July 6, 2021)

Don't send a CCP 998 settlement offer that requires the opposing party to indemnify you as part of the release (in the event anyone else sues you).  Requiring a release is fine, but requiring indemnification makes the 998 offer impossible to value -- because who knows if someone else is going to sue you, or what the defense costs will be of such an action -- and hence makes it unenforceable.

So holds the Court of Appeal today.

Inserting the indemnification provision was a particularly unwise move in the present case, in which the 998 offer was merely for a waiver of costs.  No way that offer was going to be accepted anyway, so inserting the indemnity clause didn't really have a point -- it only made the offer not work as a cost-shifting device.

So, in the future, leave that stuff out.  Fine for an "informal" settlement offer.  Not fine for a 998.

Thursday, July 01, 2021

Metzger v. Bick (Cal. Ct. App. - July 1, 2021)

None of the idle rich come off looking good in this lawsuit.

Jeffrey Metzger is the uber-wealthy CEO of KB Homes, and he and his wife Sandra live in the super-exclusive gated community of Bel Air Crest.  Their neighbor is noted comedian Kathy Griffin and her boyfriend, Randy Bick.

These neighbors do not like each other.  At all.  Who's at fault for all of this mess, or what started the war between these two couples, is totally unclear.  But what is nonetheless clear is that despite having huge $15 million-plus properties, these individuals absolutely despise their next door neighbors.  And they have the resources to make the lives of their opposites as miserable as humanly possible.

Once Kathy Griffin and Randy Bick move in in 2016, they think that the Metzgers throw loud parties and use way too many expletives, so they repeatedly call the police and complain to the HOA board, but to no avail.  So the same day the HOA board finds that Ms. Griffin's and Mr. Bick's noise complaints were not substantiated, they decide to install a super-comprehensive "home security" system, which they readily admit "was installed to document the extent of the noise disturbances affecting their property."  It consists of several Nest surveillance cameras, with microphones, that were installed at various places and that were focused primarily on locations on their own property, but also very-much-not-coincidentally, also pointed at portions of the back yard of their neighbors -- and recorded the sounds coming from that property.  As the opinion mentions, "Ms. Griffin instructed her personal assistant to review the recordings daily for audio of [their neighbors]," and these audio files -- recounted in detail by Justice Grimes -- have saved titles like "Mezger Backyard Yelling V1 3.16.17.m4a".

Clearly, Ms. Griffin and Mr. Beck have a dual purpose in installing this stuff.  Sure, at some level, they want to protect themselves.  Because God knows that living in a super-exclusive gated community in Bel Air with neighborhood guards (oh, yeah, and the Beverly Hills Police) isn't enough.  But they also want to record whatever sounds come onto their property from their neighbors.  Yelling, obscenities, etc.  'Cause "[t]he HOA had told Mr. Bick he and Ms. Griffin needed to 'document' [their neighbors'] conduct to substantiate their claims" about excessive noise, and that's exactly what they were going to do.

But the Metzgers ain't poor, and ain't taking this lying down.  So they sue.  Claiming that Ms. Griffin and Mr. Bick were illegally invading their privacy by recording their conversations and videotaping stuff in their back yard as well as violating Penal Code section 632(a), which prohibits a person from "intentionally and without the consent of all parties to a confidential communication, us[ing] an electronic amplifying or recording device to eavesdrop upon or record the confidential communication" of another person.  Both sides get high-priced lawyers, and away they go.

The trial court dismisses the lawsuit, and the Court of Appeal affirms.  Justice Grimes reviews the relevant recordings in detail, and explains that most of 'em (1) barely show anything in the Metzgers' backyard at all (though, yeah, there are occasional things there), and (2) are often unintelligible, and simply record undifferentiated yelling and the like (but with occasional phrases and words discernable).  Given that context, the Court of Appeal holds, there's nothing illegal about what Ms. Griffin and Mr. Bick are doing.  Record away.

Lots of what Justice Grimes says seems right to me.  As the opinion describes it, in the relevant files, "[o]nly a small portion of the plaintiffs’ backyard could be seen in the videos, plaintiffs and their guests could barely be seen, if at all, and the content of their conversations could not be discerned."  That does not seem like a super-critical invasion of privacy to me.  And, yes, sometimes, you could hear what was said.  But as Justice Grimes notes, "[w]hat few words and phrases could be understood were clearly spoken at elevated volumes, which plaintiffs could not reasonably expect to remain private in an outdoor residential setting, with neighbors nearby."  Sounds right.  Even if, as is apparently the case, the Nest cameras and microphones can pick up and record conversations that might be more difficult for a human ear to discern.  If, as Justice Grimes says, the only things that you can really understand on the recordings are people yelling, well, then, that's sort of your own fault.  Maybe stop yelling, right?

So, on balance, the opinion seems right.

But there's one part of the thing that nonetheless struck me as a bit off.  It's a ruling on summary judgment, and Justice Grimes says:  "There was no evidence repositioning the cameras would adequately safeguard defendants’ security interests, or that those interests were pretext."  But that second part doesn't seem right at all.  From reading the opinion, I'm quite confident that the alleged security motivation for installing the cameras was pretext.  Particularly since the cameras (1) were only installed (after -- and on the same day -- the HOA board told Ms. Griffin to "document" the alleged excessive noise, (2) for the purpose, as defendants expressly admitted, "to document the extent of the noise disturbances affecting their property," and (3) Ms. Griffin told her assistant to review the audio files daily to find any sounds that came from their neighbors.  It's not just that there's a genuine issue of material fact about that:  I'm sure that's right.  Yes, I'm sure that Ms. Griffin and Mr. Bix wanted to protect themselves.  But's the ostensible reason for the cameras, and it indeed served that function.  But the real purpose was to record their neighbors.  We've got a word for that.  "Pretext."  That's what it was here.  When you do one thing that you're legally allowed to do -- install cameras and microphones to ensure safety -- when your principal motivation is to do a different thing (record your neighbors), that's "pretext".  Just like when an officer pulls you over ostensibly because you roll through a stop sign, or speed, or have a broken tail light, but the reason he's really pulling you over is because he thinks you might be transporting drugs, that's "pretext" too.  It might (or might not) be permissible.  But it's surely pretext.

I think the opinion really stands for the proposition that, pretext or not, it's okay to install security cameras on your property if there are legitimate security concerns and the invasion of your neighbors is as slight as it is here.  Period.  Pretext or no.  Subjective motivations are irrelevant.  That's the partially analogous rule on the "police stop" side, after all.  Same here.

So it's not that there's no pretext here, or that the case would be different if there were.  Not so.  It's that you're allowed to do these things.

Even if, quite frankly, it'd be a whole lot better if one of you simply moved (as Ms. Griffin and Mr. Bicks eventually did) or -- better yet -- simply learned to live with one's neighbors peacefully.

But if you've got money to burn and want to fight, okay.  I guess that's what you get to do.

Better than shooting at each other, at least.