City and County of SF v. US EPA (9th Cir. - July 31, 2023)

Here's what I learned from today's Ninth Circuit opinion:

In many cities (including San Francisco), your toilet is connected to the storm drain system. As a result, all the wastewater (including rainfall) gets treated before it's discharged.

Which works well. Until it rains a lot.

Then, the system is overwhelmed. At that point, the wastewater treatment system does what it can, but is forced to dump untreated wastewater directly into the ocean. With a reminder that this water includes material that comes directly from your toilet.

Needless to say, that's not so great for water quality.

But the EPA generally requires at least one thing in these systems. You gotta remove "floatables" from the wastewater before you dump it in the ocean.

You heard me. Floatables. Which is exactly what it sounds like.

Listen, I don't know about you, but if there's one thing that I most definitely do not want to see in the ocean while I'm surfing, it's "floatables" from someone's toilet.

That sounds like pretty much the irreducible minimum for water quality to me.

Boermeester v. Carry (Cal. Supreme Ct. - July 31, 2023)

The right to actively cross-examine the complainant and principal witness against you:

Critical in criminal cases.

Not really important when a private university decides to expel you.

So (unanimously) holds the California Supreme Court.

Doe v. Superior Court (Cal. Supreme Ct. - July 27, 2023)

You rarely see writ proceedings successfully prosecuted during the middle of a trial, yet that's exactly what happens here. Moreover, the dispute here goes all the way to the California Supreme Court.

Plaintiff sued a school district for being sexually assaulted, and while the district admitted negligence, it argued that some of Plaintiff's damages resulted not from the assault by the teacher, but from a later sexual assault of the Plaintiff. The parties then fought about whether evidence of the subsequent sexual assault was admissible, and after the parties had given their opening statement at trial, a writ was filed, the trial got stayed, and ultimately it goes all the way up to the California Supreme Court, which holds: "Maybe the evidence is admissible. Read what we've written and try to resolve the issue again, trial court."

(Okay, that's not an actual quote, obviously, but you get the point.)

One procedurally interesting thing about all of this is that, to reiterate, all the writ proceedings transpired after the jury was empaneled and while the trial was temporarily stayed. So now that the writ proceedings are over, the trial can restart.

Which is fine, and the California Supreme Court notes that as long as the jury is still empaneled -- which at oral argument the parties confirmed -- that same jury can get back together and resolve the matter on remand.

But the opening arguments here were over two years ago. The trial has been stayed since around May of 2021; that's when the whole thing got interrupted.

Can we please just simply empanel a new jury. Here's no way that one or more of the jurors haven't looked up the status of the case or what the writ proceedings involved. I don't care how much you instructed them not to or what they might say at voir dire. It's way to big of a risk to re-empanel them again after two years of sitting at home. (Without much benefit, either; the only thing they heard as far as I can tell were the opening statements, which might well have to be redone anyway depending on what the trial court holds on remand.)

Let's just play it safe and restart the whole thing over again, okay?

Kuciemba v. Victory Woodworks (9th Cir. - July 25, 2023)

Some opinions -- even important ones -- don't take too much time to write. Today's opinion from the Ninth Circuit is a great example. When I first read the thing, I actually wondered why it took almost three weeks -- admittedly, an incredibly rapid disposition -- to write it. But, upon sober reflection, I'm starting to think that, in fact, Judge McKeown actually wrote (and published) the thing a little too quickly.

But I'd love to hear if others disagree.

The cases is about whether you can sue the employer if your spouse negligently gets COVID from work and subsequently gives it to you. The district court thought you couldn't, so dismissed the plaintiff's suit. The Ninth Circuit panel wasn't sure, so it certified the question to the California Supreme Court. On July 6, the California Supreme Court answered the certified question, holding -- unanimously -- that you can't sue.

So you can see why the subsequent Ninth Circuit opinion is fairly easy to write, no? Today, in a half dozen pages, Judge McKeown basically summarizes the California Supreme Court's opinion and holds that, yep, you can't sue, so affirms the district court. The Ninth Circuit opinion basically writes itself, which is why it doesn't take that much time (or space).

So great job by Judge McKeown's chambers getting the thing out so quickly. No need to let the thing linger.

Except for maybe one thing:

Is the California Supreme Court's decision even final yet?

I don't think so. The opinion was issued on July 6. The usual rule is that California Supreme Court decisions are final 30 days after filing, unless the opinion says otherwise (Rule 8.532(b)). The California Supreme Court's opinion nowhere said otherwise, so that means it's not final until a couple of weeks from now. And I'm pretty sure you're supposed to wait until the opinion you're relying on is final before you dismiss a lawsuit based on that other opinion, since, in the meantime, the other opinion could be amended, modified or even reversed.

Of course, you and I both know that there's no way in the universe the California Supreme Court's unanimous opinion on the certified question is materially changing either any time soon, or ever. But technically, I think that the Ninth Circuit probably should have kept this one in chambers for another two weeks before publishing the thing.

No biggie, though. Everyone knew what was going to happen anyway three weeks ago. 

Just a formal set of rules about finality and such. Hypertechnical, of course, but rules.

People v. Pickett (Cal. Ct. App. - July 24, 2023)

I had always thought that a fairly safe place to shoot someone was in their buttocks. It hurts, it's a bit embarrassing, but besides causing a temporary limp, nothing devastatingly injurious.

Apparently not.

Raymond Pickett shot Michael Moore in his right buttocks, the bullet severed an artery, and Mr. Moore died.

The lesson: There's apparently no good place to shoot anyone. Ever.

Carmona v. Domino's Pizza (9th Cir. - July 21, 2023)

Is this really the way things (should) work?

I happen to know a lot about the Supreme Court's GVR practice, which stands for granting certiorari, vacating the Court of Appeals' decision below, and remanding the case for an assessment of a potentially relevant intervening statute of Supreme Court opinion. Indeed, I wrote what's probably the leading law review article on the subject.

The practice makes sense. Sometimes, an appellate decision might be (potentially) correct when made, but then a new case (form a higher authority) comes along that (potentially) changes the result. In such cases, the Supreme Court often GVRs the matter and asks the Court of Appeals to reexamine the thing in light of the new (controlling) precedent.

When that happens, on remand, the Court of Appeals obviously has to assess whether the intervening decision in fact changes the result in that particular case. And the Supreme Court has been clear that just because it grants a GVR, that doesn't necessarily mean the result should be different. It just requires a new look in light of the intervening event.

All good.

That general practice happens here. But with a wrinkle.

Here, the Ninth Circuit previously decided that the arbitration provision here wasn't governed by the FAA because the plaintiffs were engaged in interstate commerce (which is an exception to the FAA), and after that decision was rendered, the Supreme Court decided a case that changed -- at least a little bit -- the rules for what counts as being engaged in interstate commerce under the statute. Hence the Court's GVR of the prior Ninth Circuit's decision.

So, on remand, the Ninth Circuit has to take a look at the case again and see what the proper result is under the Supreme Court's new precedent. Totally typical and routine.

But today, on remand, the Ninth Circuit says: "Well, when we decided the case before, we did so relying on a prior Ninth Circuit precedent. We don't see that the Supreme Court's intervening opinion on the subject is necessarily "clearly irreconcilable" with that prior precedent. So, as a panel, we're bound to that result. So we're required to reach the same result that we reached before."

I truly wonder if that's indeed the way that circuit precedent and Supreme Court GVRs in fact do -- or should -- interact.

Judge Hurwitz is clearly correct that the prior panel opinion was based on then-existing Ninth Circuit precedent. When the other (intervening) case was in the Supreme Court, the Court, in a footnote, expressly declined to decide whether that particular Ninth Circuit test was appropriate or consistent with the test expressed by the Supreme Court.

So, Judge Hurwitz (reasonably) says, there's nothing clearly irreconcilable between the two cases, so the panel's bound by circuit precedent and has to reach the fair result.

Fair enough.

But then what's the point of the Supreme Court GVR'ing the case in the first place?

The reason the Court GVR'd is because it wanted the Ninth Circuit to take a new look. And it seems somewhat silly to say that, in taking that new look, the Court of Appeals is bound to reach the very same decision it reached last time since circuit precedent hasn't changed. Of course it hasn't changed. But Supreme Court precedent did.

When the Supreme Court simultaneously (1) changes the law, and (2) expressly declines to decide whether a particular existing circuit precedent remains good law in light of that change, it seems to me like the deference that would otherwise attach to circuit precedent likely disappears. The panel should decide the case under the existing Supreme Court precedent, if it answers the question one way or the other. What a circuit case decided long ago under a different set of controlling precedents doesn't seem to me to be dispositive, nor of any particularly strong weight.

I get that the en banc court can always revisit precedent and change the result. But it seems like it guts the practical efficacy of a GVR if the panel below is routinely bound to the prior circuit precedent in all but the most obvious cases of irreconcilable conflict.

Goldstein v. Superior Court (Cal. Ct. App. - July 19, 2023)

I've never really thought that much about the ability of courts to use subsequent legislative amendments to retrospectively clarify the meaning of a statute. I mean, I know that courts do that, of course. And it's fairly obvious that once the Legislature amends a statute, thereafter, it means what it (now more clearly) says.

But are there any limits to that power?

Take, for example, a hypothetical statute that says that it's illegal "to shoot a flying bird" within 500 feet of a state-owned drone. (Presumably because, I don't know, maybe the Legislature is worried about people accidentally hitting the drone.) On November 24, Jimmy sees a government-owned drone flying overhead while he's out hunting for a Thanksgiving turkey, sees one 15 feet away, aims his gun, snaps on a twig, the turkey "flies" (or tries to) and gets a foot or so off the ground, and Jimmy blasts it.

A police officer happens to spot all this and cites Jimmy for violating the statute. Jimmy says: "Dude, come on, turkeys don't actually fly, and in any event, I don't think they're really 'bird" within the meaning of the statute anyway." (To be clear, Jimmy doesn't say this, his lawyer does, and probably omits the word 'Dude' when she's talking to the judge.)

Now, it would seem to me that Jimmy and/or his lawyer have a decent argument in that regard. Maybe it's right, maybe it's wrong. We'll have to figure it out. That's what courts do, after all.

But let's say that the Story of Jimmy and the Turkey somehow comes to the attention of the Legislature, which then amends the statute to "clarify" what it means by adding "and by birds, we definitely mean turkeys as well, and even if they're only a foot off the ground, that's still 'flying'" to the statute.

That solve the problem for future Jimmies, of course. But what about Jimmy 1.0? Does the subsequent legislative clarification of the statute weigh heavily -- or at all -- in an assessment of whether the original statute (1.0 as well?) applies to him?

Now, in the criminal context, we might well have principles of ex post facto application or principles of lenity that might potentially be dispositive regardless of the subsequent legislative amendment. But let's say it's just a civil statute. Does the amendment mean that Jimmy 1.0 is liable?

One side will say: "Sure it does. The Legislature expressly clarified the statute and told you what it meant by it. Can their be any better proof of legislative intent than that?" The rejoinder from Jimmy and his well-credentialed lawyer will undoubtedly be: "Sure, the Legislature says that now, but didn't say it before -- and those are different Legislatures at different times anyway. Plus, how was Jimmy 1.0 to know what the Legislature would do after he shot his turkey? Not fair to bind him to that."

Who wins?

I thought about all that after reading this opinion by Justice Irion. Because it raises basically the same issue, in my mind. The opinion is even about guns and hunting (in a way). But this one involves killing people, not turkeys, so I wanted to strip away the emotion with a hypothetical first.

The issue is this: A teenager buys a gun and shoots up a synagogue in Poway. Some of the victims sue the store that sold him the gun. California law makes it illegal to sell a rifle to anyone under 21 unless he has "a valid, unexpired hunting license." Because we don't want teenagers to have weapons unless they've got a good reason.

The shooter here had a hunting license. He got it the day before he bought the gun, and 11 days before he received the weapon (there was a 10-day waiting period). He got the hunting license on April 15, 2019, and showed it to the store when he purchased the rifle on April 16. It was a valid license, and hadn't yet expired.

But here's the rub:

The hunting license, purchased on April 15, said on its face it was "Valid 7/1/2019 to 6/30/2020." So it definitely hadn't "expired" yet, but also didn't actually allow hunting yet either.

Is that a "valid" hunting license under the statute?

You can see the arguments both ways, right? And Justice Irion's opinion admits -- I think correctly -- that the statute is thus ambiguous on this point.

But after the Poway shooting, the Legislature amends the relevant statute to clearly say that a license is not 'valid" under the statute if the time period listed on the license has not yet commenced. Moreover, everyone agrees that this amendment was deliberately passed in direct response to the Poway shooting and was an attempt to 'clarify' the statute. (Which it clearly does.)

But, like the Hypothetical Jimmy, the defendant here (San Diego Guns) says it can't be found liable for negligence per se under the statute because it didn't do anything wrong at the time. That the shooter had a "valid, unexpired hunting license" at the time of the sale, so was permitted to buy the weapon. While the plaintiffs say "No, he didn't, and if there's any doubt, the subsequent amendment removes it."

Again: Who's right?

I'm on board for, as a general matter, subsequent amendments being used to somewhat clarify the meaning of an ambiguous statute. Just like I'm on board for legislative history and purpose being used in a similar fashion. Sure, there are downsides to that, and you've got to be careful. But it seems to me a somewhat logical way to think about things. (Strict textualists, of course, might well -- and often do -- disagree.)

That said, I somewhat sympathize with the Jimmies of the world. They're being punished for something they didn't know at the time was wrong. How does a subsequent legislative pronouncement change their liability for something that transpired long before the amendment?

At the same time, well, you know, sometimes, statutes are ambiguous, and we punish you anyway if you violate what the courts subsequently say is the superior reading of the statute. How is this any different, at least qualitatively?

But there's a part of me that responds: "Well, sure, but at least when I end up on the wrong side of an ambiguous statute, I can read the thing as well as anyone else, and go to a lawyer who can look at all the facts and says that it more likely will be interpreted to mean X instead of Y. Then I can assess the relevant probabilities and decide to risk it. But once you add a future legislative at to the mix, then all that changes; my lawyer's really good, but he's not Carnac the Magnificent. He can't anticipate or assess things that haven't even happened yet and that will only happen as a result of my choice; e.g., if I sell a weapon to this kid, he goes on a high-profile shooting spree, and then the Legislature changes the statute because they want to make people like me liable. That ain't right."

I know it's a civil statute. I know there's insurance anyway. And I know there are dead people whose families I'd like to compensate if it's morally and legally permissible.

I'm just not sure how right it is to include future events in an assessment of what a statute meant on a date when the statute said something different.

One last time: Whatcha think?

People v. Session (Cal. Ct. App. - July 19, 2023)

Keandre Session and some confederates apparently drove to various high-end homes to commit burglaries. According to the opinion, it appears that they stole things like Rolex watches, Gucci handbags, and the like from homes in Manhattan Beach, Redlands, Yorba Linda, Fullerton, and Corona. 

Those are far-flung locations, no?

Indeed, on December 20, 2019, Mr. Session and his confederates were in Yorba Linda (100 yards from the scene of the Yorba Linda burglary on November 21) and then, later that same day, burglarized a home in Poway, which is a suburban community in San Diego. (They were caught after a high speed chase.)

This is a ton of travel.

Strangely enough, the opinion also mentions that Mr. Session was a member of the PJ Watts Crips gang, which (as its name reflects) is based out of Watts.

So people apparently travel quite a distance to steal from higher-end residential properties.

Last mention: I did not know until today's opinion that if you're on parole, that means that not only are you subject to warrantless searches of your home, but it means that -- like here -- the police can secretly put a GPS locator on your car.

All super interesting stuff to know, eh?

(I might also mention that several of the victims of these higher-end burglaries had security systems or Ring cameras or similar deterrents. Didn't matter.)

Progressive Democrats v. Bonta (9th Cir. - July 19, 2023)

California prohibits local employees from soliciting political contributions from coworkers, but not state employees. That doesn't make any sense, and is thus unconstitutional. So holds the Ninth Circuit.

That distinction is definitely tough to defend. As Judge Berzon's opinion explains at length, it's equally pernicious for both types of employees to solicit such contributions, and since this involves free speech, the First Amendment prohibits this differentiation.

I also couldn't help but take notice of the caption: "Progressive Democrats v. Bonta." Some people might say that's at least facially equivalent to Rob Bonta suing himself. :-)

People v. Gyorgy (Cal. Ct. App. - July 14, 2023)

With all due respect to both participants, I think that Justice Motoike's majority opinion fairly clearly wins the argument over Justice Moore's dissent.

People v. Kimble (Cal. Ct. App. - July 14, 2023)

From this opinion:

"In July 2008, a jury found defendant guilty of stalking (§ 646.9) which, at the time, constituted a third strike, as he had prior convictions for attempted kidnapping and criminal threats."

My reaction: I definitely do not want a guy stalking me who's been previously convicted of kidnapping (!) and criminal threats.

Next sentence: "Accordingly, the trial court sentenced defendant to 25 years to life under the Three Strikes law."

My reaction: That's a lot of time in prison for stalking.

I fully understand that these two reactions are somewhat inconsistent.

Greenville Rancharia v. Martin (Cal. Ct. App. - July 12, 2023)

I've read this opinion twice, and am still a little confused about what Justice Robie is saying on one of the central points. But maybe it's just me.

There's a hotly contested election in an Indian tribe and Angela Martin gets elected chairperson, but her opponents win the lower level tribal elections. Shades of January 6, there's then an "occupation" of a medical office owned by the tribe (on off-reservation land) by one of the parties. Resulting in a big fight when one side is ordered to leave, refuses, etc. The typical stuff, except it's an office building instead of the Capitol. (Justice Robie doesn't make the January 6 analogy; that's all me, but it seems to fit.)

So then, the lower level officials call an impromptu meeting (without notifying Martin) and purport to replace her with someone else. Then there's a lawsuit filed by the tribe against the occupiers, claiming trespass and requesting an injunction. To figure out whether there's been a trespass, everyone agrees that you have to decide whether Martin is still the head of the tribe; she says she is, the other side says that she isn't.

The trial court ultimately decides it's not allowed to intervene in this intratribal dispute about who's validly the head of the tribe, so dismisses the suit. The Court of Appeal reverses.

All that I understand. At least factually.

Here's the part that I keep tripping over. Justice Robie holds (in Section B) that "there is no tribal leadership dispute" because Martin was removed by the lower tribal officials in a meeting and since then she has not "challenged her suspension pursuant to Greenville law or by filing an administrative action with the Bureau." At the same time, Justice Robie admits that "[t]he parties agree Martin was elected as Greenville’s chairperson and that the rest of the tribal council passed, either validly or invalidly, resolutions to suspend her authority and order defendants to vacate the property."

That sort of sounds like an active leadership dispute to me, no? Maybe I'm wrong, and maybe I need to learn more about the relevant constitution of the Greenville Rancharia, but if Martin says that she was not validly removed from her leadership position, then isn't that an active dispute, even if she doesn't file a petition?

Imagine, for example, that on January 4, Vice President Pence met with the cabinet and declared in a press conference that then-President Trump was "insane" and no longer capable of being President, so Pence took over and ordered Trump out of the White House. In response, President Trump said: "No, I'm not insane, and while I might not be the brightest bulb in the pack, I read the thing and am pretty sure the 25th Amendment says you have to submit a written declaration to Congress to remove me, not just hold a press conference, so bully for you, I'm not leaving." The "United States" then files suit to evict Trump and his family from the White House.

It seems to me that's a leadership dispute, and that that's true even if President Trump hadn't formally challenged his suspension in court or filed any other sort of petition -- exactly like Martin here. He and Martin can both just say -- as Martin apparently is -- "I don't care what you say or did, it's not valid, so I'm still in office."

For Indian tribes, state courts aren't allowed (as Justice Robie notes) to look at the tribal constitution or anything like that to interpret who's right and who's still in power. That's why the trial court thought it had to dismiss the lawsuit.

So if Martin is still claiming that she's in officer -- which it seems she clearly is -- I'm not exactly sure why a formal "protest" of any type is required.

Now, maybe there's something in the tribal constitution that says that once a resolution is passed, the chairperson is required to file a petition or something like that. But if so, there's nothing in the opinion that says anything like that. Plus, even if there was, would Martin really have to follow it? Couldn't she just say (as she apparently is) "Well, the meeting that kicked me out was invalid, because there was no notice of it, so I don't have to do anything." Which is just what Trump might say, for example, if the cabinet meeting in the above hypothetical was only attended by five cabinet members. (The 25th Amendment requires a majority of the cabinet to agree that the President is disabled.) I guess that he could go ahead and fight the thing in Congress (or court) pursuant to the procedures applicable when a majority of the cabinet does vote that he's disabled. But it also seems to me like he could just ignore the thing and pretend it didn't happen. In the same way that he'd ignore the thing if, say, a random guy on the street assembled 24 other random guys, called themselves the "Legitimate Vice President and Cabinet," and voted to remove President Trump from office. Yeah, go right ahead. That sound you hear is crickets. The fact that the White House doesn't file a petition in Congress doesn't mean that there's no leadership dispute and President Trump admits that he's been (allegedly invalidly) kicked out.

All of which is a longwinded way of saying that I'd want to hear more on this front. Because facially, I'm pretty sure that there is, in fact, a leadership dispute here. So I'd want to know more about why there is allegedly no "real" leadership dispute, especially since state courts aren't allowed to adjudicate the internal rules of an Indian tribe and who's right on the merits.

People v. Tapa (Cal. Ct. App. - July 11, 2023)

I know that everyone -- including the California Supreme Court -- has been saying this for the past 20 years, but can we please get some more judges in Riverside County? 

At this point, we're straight up dismissing criminal cases for routinely failing to bring 'em to trial within the statutory deadline, and the Court of Appeal today affirms that decision for 44 different defendants.

We really, really need more judges out there.

People v. Madrigal (Cal. Ct. App. - July 6, 2023)

This seems entirely fair and reasonable.

A guy gets out of a van (with some other guys) and allegedly stabs and kills the victim. The person driving the van eventually strikes a deal with prosecutors and testifies against the guy. Before trial, while in jail, the driver made a lot of phone calls, all of which were recorded. Defense counsel subpoenas these calls to see if the driver has said anything exculpatory or inconsistent with her prior statements to police. (She's already changed her story several times.)

No one objects to the subpoena, but on the criminal side, before the defense can get this evidence, the court has to review it in camera to see if there's anything relevant. But the trial judge is flummoxed. He first can't figure out what app to use to play the files, and later, realizes that there are tons and tons of calls, and doesn't want to spend the "hours and hours" it'd take listening to them. So he refuses to do so, saying that the defense hasn't made a specific enough showing of what's on the tapes. (The defense, in turn, says it doesn't yet know what's on the tapes because it's not yet allowed to listen to 'em, so has been as specific as it can be at this point.)

The Court of Appeal reverses. There was reason enough to believe that there might be relevant material on those tapes. So the trial judge was required to go through them. Even though that's admittedly a pain in the butt.

I sympathize with the trial court. I also wouldn't want to have to review hours and hours of tapes. But I suspect you could delegate the initial screening to court staff, or to a special master, or something like that. And I agree there might well be something on those tapes. So it's pretty important. Especially in a murder case, where there's a lot at stake.

Plus, although Justice Greenwood's opinion doesn't mention it, I think there may also be a fairness principle at stake here. Prosecutors routinely review and introduce jailhouse telephone recordings at trial. They clearly have sufficient access to those tapes, as well as sufficient staff to review them. What's good for one side seems equally good for the other. And if the law says that the trial court has to review them first before the defense can see them, well, then, that's what you gotta do. Not exactly cool for one side to have fairly unlimited access to tapes that the other side can't see because doing so would require too much work by the judge.

Bernal v. Sacramento County Sheriff's Dept. (9th Cir. - July 7, 2023)

The first part of this opinion is, in my view, outrageous. I would not have thought that a holding like this was permissible in America, much less the Ninth Circuit.

Seriously.

Let me jut get two predicate facts established at the outset; principles that, I would have hoped, were indisputable.

First, the police can't detain you unless you're suspected of committing a crime. If even the police know that you haven't done anything wrong, they can't handcuff you, they can't detain you, they can't stop you from leaving. That's the Fourth Amendment.

Second, you don't have to talk to the police if you don't want to. I'm pretty sure there's something about that somewhere in the Fifth Amendment.

These principles seem fairly important to me.

So, in summary, if the police come up to you and want to talk to you, and you don't feel like talking to them, it's a fundamental principle of American jurisprudence that you can say: "Hey, respectfully, I want to exercise my Fifth Amendment right and not say anything. Good day, sir." And leave.

At least that was true until today.

Here, Cynthia and William Bernal -- a married couple -- were hanging out in their home. Everyone admits they hadn't done anything wrong. They're not accused or suspected of any crime whatsoever. But someone had reported to the police that their teenage son had allegedly told someone that he was going to shoot up his high school.

Now, that's a serious threat. We definitely want the police to investigate. So a squad full of police cars converges on the Bernal's home. The police have already called Mr. & Mrs. Bernal on the telephone, and Mrs. Bernal has said that there son wasn't there -- that he was at his grandmother's. But she doesn't want to give the caller the grandmother's location because the caller's phone number is hidden.

Makes sense to me, honestly. Could be a scam.

The police check their records and learn that there are no weapons at the Bernal's home. But they want to check it out anyway. So they roll up into the cul-de-sac, and see Mr. and Mrs. Bernal walking to their car in their driveway. The police get out of their vehicles and ask to speak with them.

Mrs. Bernal responds by saying the same thing she said over the phone: That their son isn't home, that he's at his grandmother's, that she doesn't feel like telling the police where that is, and that she doesn't feel like talking to the police further, so she's leaving.

Let me just stop there. Here's what I strongly feel:

That's her right.

She doesn't have to talk to the police. She doesn't have to tell them where her son is. I'm very, very confident that's part of the Fifth Amendment.

Maybe she wants to protect her son, or talk to him first. Maybe she fears the police might shoot him -- a not inconceivable position. Maybe she feels like the report isn't true and that her son isn't a danger at all. Whatever. She has that right. And, in my view, that's a pretty darn important one.

Moreover, you don't just have the right to be silent if you want. You also have the right to leave. If you aren't suspected of a crime -- if you're TOTALLY INNOCENT -- the police can't arrest you or stop you from going about your day. This is a pretty freaking darn important right as well. It's one that's a fairly fundamental distinction between, say, America, as opposed to other types of totalitarian police states out there.

But the Ninth Circuit today says: No. She didn't have the right to leave. Even though she had said, quite clearly, multiple times, that she didn't want to talk to the police, and that she wanted to leave, the panel says that the police had the right to keep her there. To physically block her car, to take her keys out of her hands, to handcuff her husband, and to keep her there so they could continue to interrogate her.

Mind you, not forever. But being detained (even in handcuffs) for "twenty minutes" is just fine.

As is perhaps clear, I strongly disagree.

Here's my rule, and one that, before today, I would have thought was entirely undisputed: 

Once you unambiguously say (as Mrs. Bernal did repeatedly) that you don't want to talk to the police any longer, unless you're suspected of a crime, you're free to leave.

That's what it means to be in America. It's a fairly important part of the Bill of Rights. The police cannot force you to speak with them or to give information about your son that you don't feel like giving them.

I recognize that it's a potential school shooting. That's always serious. But rights are most precious -- and most at risk -- in precisely such settings. If there's anything we (should have) learned from our whole "torture memo" and waterboarding experiences, it's that.

You can't force an innocent person to talk to you. You can't handcuff someone that's innocent.

Plus, in all honesty, I don't even get the point of the exception. The Bernals said they didn't want to talk to the police. What's the point of detaining them? They have the right not to speak. What are the police going to do to them at that point? Start slapping them around? They're not going to talk.

The only point of detaining them, in my view, is either to coerce them or to punish them -- to keep them in handcuffs for 20 minutes -- for the completely valid exercise of their Fifth Amendment right.

That's not cool.

It doesn't bother me that the police can come up and try to talk to you on the street even if you're not suspected of any crime. Sure, that's a bit nerve-wracking, and (in the modern world) perhaps a little bit inherently coercive, because it's the full power of the state, personified by an armed officer in your face.

But the saving grace has always been that you're free to leave. That if you don't want to talk to them, you can simply walk away.

Until today.

Price & Braugh (Cal. Ct. App. - July 3, 2023)

Things that you should already totally know, but that apparently people forget. From two different cases:

(1) When you're committing a premeditated robbery and murder at a marijuana grow operation, don't take your phone with you. Google is tracking you, and will turn your location data over to the police.

(2) If you're an attorney and the plaintiff to the lawsuit, you can't be the one to personally serve it on the defendant. It's got to be someone else. Otherwise the default judgment is void.

Learn these simple things, if you haven't already.

Project Veritas v. Smith (9th Cir. July 3, 2023)

This is a huge opinion. It holds that Oregon's prohibition on secretly recording communications between two people violate the First Amendment. Judge Ikuta authored the majority opinion, and Judge Christen dissented.

Although the plaintiff here wanted to secretly record communications involving public issues (e.g., public officials, BLM officers, etc.), the holding seems to me to apply equally to secretly recording even routine conversations with your neighbors, coworkers, etc. Similarly, while the narrow holding was that the law at issue was unconstitutional because it allowed some nonconsensual recordings -- particularly, body-worn cameras by police officers -- but not others, most state laws contain the same exceptions.

So for states -- including California -- with two-party consent statutes, if the opinion stands, I doubt that most of them would survive.

Nigel B. v. Burbank USD (Cal. Ct. App. - July 3, 2023)

These days, whenever I see a lawsuit against a school district, my initial assumption is that it's a suit for child molestation or something like that. A sign of the times, unfortunately.

But this one is different. It's about bullying and a touch football game.

It's a classic story (again, unfortunately). Two kids are in middle school in Los Angeles. One of them is big and burley, and the other is small an frail. The big kid relentlessly bullies the little kid, with both physical bullying (pushing him down, etc.) as well as emotional bullying (e.g., calling him gay). The teachers at the school allegedly do nothing, and the bullied kid is hesitant to report anything as well because, in his own words, "snitches get stiches." (I've heard my own kids use this phrase as well, though -- I sincerely hope -- sarcastically.)

The lawsuit here, however, is not about the bullying, but is fallout from an (allegedly) related touch football game in P.E. class. Four games are going on, the big kid really wants to win, the P.E. teacher is totally on his phone not paying attention, the little kid catches a pass, and the big kid -- even though it's touch football -- completely decks the buy, tearing his ACL and causing huge injuries.

So the parents of the bullied kid sue the bully, his parents, the teacher, and the school. And at trial, the jury awards the bullied kid $1.75 million in damages against the school.

I had thought that the principal issue on appeal would be the typical sports "assumption of the risk" defense, and that issue was indeed raised, but the Court of Appeal holds -- rightly, I think -- that this principle doesn't apply to a mandatory sport in which you were required to participate. (The bullied kid had to do touch football in P.E.) The key fight was instead about whether the school district was liable, which it wasn't. That said, the teacher might still be liable, and since the school district has to pay for him anyway, the plaintiff's still likely to get a fair chunk of change. The Court of Appeal holds only that the jury -- on retrial -- will need to apportion fault between the negligent teacher and the deliberately tortious bully. No fair imposing complete joint liability between intentional vs. negligent defendants.

Bullying: Not good. On many levels.