I'm 100% down for this decision. Seems eminently correct both as a legal and equitable matter. If you want to be a surrogate with no relationship whatsoever to the resulting child, and the other person is okay with that, so be it. We'll enforce that agreement.
Even if you change your mind seven years later.
This is a tough situation all around, honestly.
F.P. is driving a car with tinted windows in Ukiah and leaves the vehicle to run a (hopefully super quick) errand. She leaves the keys in the vehicle. Oh, also, in the back seat, she leaves her one year old son.
Fear not. The child is fine.
But shortly after F.P. gets out of the car, K.D. -- a 29-year old woman -- hops in, hits the gas, and drives away.
It's unclear whether K.D. knows that the baby is in the vehicle at the time she steals it. Regardless, it's still grand theft, and maybe kidnapping as well. Thankfully, the vehicle gets recovered fairly rapidly, around two miles away, and the baby is okay.
Here's the thing about K.D., though. She's really quite intellectually challenged. I mean: A lot. Here's some of what the opinion says in this regard:
"Dr. Holden evaluated defendant in July 2021 and concluded that she was not competent to stand trial. He opined that defendant “[fell] far short of the legal standard for competency to stand trial, having little factual and rational understanding of legal proceedings and an impaired ability to consult with her attorney in conducting a rational defense.” . . . .
Dr. Wright observed that defendant had dropped out of school in sixth grade, she was not able to write a grammatically correct paragraph or read an analog clock, and she did not know the months of the year. She scored “[e]xtremely [l]ow” on scales of verbal comprehension, perceptual reasoning, working memory, and processing speed. Her percentile ranks ranged from 0.1 to 2, and her performance placed her full scale I.Q. at 55 (0.1 percentile)."
So, on the one hand, you can potentially put K.D. in a diversion program for that. Since, honestly, she clearly needs a ton of help, and just dumping her in the hoosegow probably isn't going to help things much.
At the same time, though, this was a serious offense -- the baby could have been physically hurt, after all, and the mother was surely traumatized -- and this is also most definitely not K.D.'s first run-in with the law:
"The prosecution filed a declaration opposing diversion. The prosecution cited the victims’ trauma, RCRC’s original recommendation against diversion, defendant’s “conscious deceitfulness” in giving false names to police, her criminal history, and the violent nature of the crimes charged; the prosecution further argued that defendant was a flight risk. The prosecution maintained that the facts of the crime alone should cause the court to determine the offenses defendant committed were not worthy of diversion, and the prosecution concluded that “[t]he time has come for real and meaningful consequences for this defendant that can only be realized by more restrictive and punitive measures, not less.” . . . .
Defendant’s criminal record consisted of seventeen misdemeanor convictions and one felony conviction in the counties of Fresno, Tulare, and Madera between June 2009 and September 2019, including receipt of a stolen vehicle, drug possession, using or being under the influence of a controlled substance, possession of drug paraphernalia, disorderly conduct, and providing false identification. Defendant’s 2018 felony conviction was under section 496d. Defendant had been granted probation numerous times, including formal probation for her felony conviction, and her probation had been revoked eight times. She had two outstanding bench warrants related to misdemeanor charges in Tulare County. While on felony probation, defendant had not stayed in contact with probation as directed, and she failed to follow through with any court-ordered rehabilitative services."
A toughie for sure.
Honestly, I'm glad I wasn't responsible for deciding this one. Either in the trial court or on appeal. It's not one where I have a definite and firm conviction about which way to go.
Something to think about over the weekend, perhaps.
I definitely know that the last line here sometimes appears in the opinion itself, but do not recall seeing something like this in the actual caption:
"ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING; THERE IS A CHANGE IN APPELLATE JUDGMENT"
(Capitalization and bold in the original.)
Do you really say that last part in the caption itself?
Not that it matters, of course. Just wondering.
Stealing a cell phone from one person at the shopping mall at 2:30 p.m. is a different offense than punching someone 5:00 p.m. at that same shopping mall and stealing their cell phone as well. The prosecution can charge those offenses separately.
So holds the Court of Appeal, in an opinion that is both concise (seven pages) and sensible.
It might be one thing if both offenses involved solely the stealing of a phone, or if both offenses involved solely punching someone. (Even then, reasonable minds might disagree about whether that's one offense or two given the two-and-a-half hour gap between the crimes.) But punching someone and stealing their phone is definitely different than simply stealing someone else's phone two and a half hours earlier.
Makes sense to me.
"In April of 2023, the department responded to a referral that mother and newborn H.M. both tested positive for 'Cannabinoids/THC and amphetamines.' Mother denied substance use and declined to provide a urine sample. Father acknowledged knowing that mother used methamphetamine throughout her pregnancy. Father tested presumptive positive for amphetamines, methamphetamines, and THC, which he claimed was due to having had sex with mother, who was using drugs. H.M. was placed into protective custody. . . .
In May of 2023, the department met with mother and father to discuss paternity. Both acknowledged that father was not H.M.’s biological father, although he did sign the appropriate paperwork at the hospital that he intended to be H.M.’s father. Mother refused to say who the biological father was. . . .
[B]oth mother and father refused to sign any substance use testing guidelines and were not participating in random testing. Both had tested positive for amphetamines and methamphetamines, and presumptively positive for THC on three separate occasions. . . .
On June 8, 2023, the department attempted to contact H.M.’s other potential biological fathers. One, Benjamin D., stated he was not interested in ascertaining whether or not the child was his and did not want to become involved in the case. The department was unable to locate another, Justin M. The third, Ruben D., was in custody in jail and refused to take a DNA test, stated there was no possibility that he was the father. . . .
On July 18, 2023, mother completed a psychological review stating that her adoptive mother passed away when mother was 14; her adoptive mother’s brother, who mother considered a father figure, had passed away from cancer; and her sister had died from a fentanyl overdose. Mother stated that she did not really know her biological family and felt that her cousins were strangers. . . .
The six-month review hearing report recommended . . . that family reunification services be terminated for both mother and father and a section 366.26 hearing be set. Neither mother nor father had followed through on the reunification plan."
Lovely all around.
(From Tuolumne County, if you're wondering. Largest city: Sonora, population 5003.)
Maybe everything didn't go perfectly 100% smoothly, but I have to agree with Judge Collins that it went sufficiently fine such that the DUI stop of Ms. Mayfield, who was deaf, didn't violate the Americans With Disabilities Act even though she wasn't provided with a sign language interpreter. She sufficiently understood everything via messages typed on the officer's cell phone plus a little bit of writing, gestures, lip reading and the like.
Here's another example of where body worn cameras help out a lot; in this case, in the police officer's favor.
(Plus, as an aside, I thought it fairly favorable for Ms. Mayfield that they let her plead down to reckless driving as opposed to an actual DUI.)
I'm happy that the case came out this way, and I think it's the right rule. But unlike the California Supreme Court, I don't think that's what the statute actually says.
It's a statute of limitations questions. Everyone here knows that there's a special one-year SOL for clients who want to sue their lawyer for malpractice etc. At the same same time, there's a residual two-year SOL for regular old torts. (I'm simplifying things, of course; there are complexities, tolling provisions, etc.)
Which one of these applies when a non-client wants to sue a lawyer for alleged professional misconduct by that lawyer (here, alleged malicious prosecution)? One year or two years?
The Courts of Appeal had split on this issue, so the California Supreme Court helpfully granted review.
Here's the relevant one-year statute. Read it. When a non-client sues a lawyer for conduct that (admittedly) arises out of the lawyer's provision of professional services (e.g., filing a lawsuit), does it apply?
“An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.”
The California Supreme Court declares that this statute is "ambiguous" in the setting presented, and on that basis, it looked to legislative history, policy and purpose to hold that the two-year statute, rather than the one-year statute, applies.
By contrast, I don't think that the actual text of the statute is "ambiguous" at all.
The case before the California Supreme Court involved a malicious prosecution cause of action: a claim that an attorney wrongfully filed a lawsuit against a non-client. That lawsuit is surely "an action against an attorney." It indisputably arises out of an alleged "wrongful act omission . . . arising in the performance of professional services" (i.e., filing a lawsuit). Everyone agrees that the lawsuit is not for "actual fraud." And no one even asserts that the action was commenced more than a year after the "plaintiff" (the non-client) discovered or should have discovered the wrongful act.
Those are the words of the statute. Under the text, the one-year statute applies.
The California Supreme Court says that the statute is "ambiguous" because it doesn't expressly say whether it applies solely to lawsuits filed by a client or whether it also applies to lawsuits filed by non-clients. But I can't figure out which word of the statute is even arguably ambiguous. "Plaintiff" means plaintiff. That meaning word doesn't depend on whether the plaintiff is a client or non-client of the lawyer. So if you follows the actual text of the statute, I think it's dispositive.
To someone like me, mind you, that's not necessarily the end of the inquiry. Even if the words (the "command") of a statute aren't ambiguous, in my opinion, we can still look to structure and purpose to figure out whether those words really mean what they say. And I agree with the California Supreme Court that the Legislature did not, in fact, mean to apply that one-year statute of limitations to lawsuits (like here) that involve non-clients.
I just don't think it's really true that the statute is textually "ambiguous." I think that's a construct. I think that the text is really quite clear, but in the modern textualist era, the Court has said so many times that unambiguous text is the be-all-end-all that there's no way to doctrinally come out the correct way here unless the Court says that the text is instead ambiguous. So, okay. Presto: "The text is ambiguous." Now we can interpret the statute in a way that the Legislature likely intended and that makes the world a better and more rational place.
One more thing. I think I've got an even better analogy/hypothetical than the Court introduces here -- or at least an additional one.
Once it finds the statute purportedly "ambiguous" and thus may permissibly assess policy and intent, Justice Corrigan concludes her opinion by saying that "[o]ur construction of section 340.6 avoids the potential unfairness that would arise from applying different statutes of limitations to claims for the same alleged misconduct depending upon whether the suit is brought against an attorney or client." She then discusses examples of that type of unfair (or at least irrational) disparity, including a complicated three-page discussion of how tolling principles would apply to clients versus non-clients in various settings.
Here's an even more straightforward example that came to my mind of the problems of reading the one-year statute literally.
Imagine that a lawyer is late for a scheduled hearing, speeds to get to the proper department, and while turning a hallway corner (or perhaps even while driving to the courthouse), accidentally hits someone, seriously injuring them. The resulting negligence cause of action would be (1) "an action against an attorney," (2) "for a wrongful act or omission," (3) "other than for actual fraud," (4) "arising in the performance of professional services" (i.e., speeding to court). So the one-year statute textually applies. But if it was a non-attorney who did the same thing, the usual two-year statute would apply.
Why would the victim care whether she was hit by a lawyer or nonlawyer? Why should the limitations period be shorter if the person hit happened to be a client? How would the victim even necessarily know whether the person who hit her was a lawyer or not, and hence whether the one-year statute applied? (There's no tolling period in the one-year statute for not knowing that someone's a lawyer.) If the lawyer hit two people -- one a client, one a non-client -- would two different statute of limitations really apply? If the lawyer was driving a car (or Segway) owned by a non-lawyer, would a different really apply to the claim against the lawyer versus the owner of the vehicle? All of these potential distinctions would seem silly, bizarre and irrational.
So I'm on board for applying the two-year statute to claims, as here, by non-clients.
I just wouldn't say that I was doing so because the statute was textually "ambiguous." Because I can't find a word, or phrase, in the statute that actually is.
Masha Parvis goes to Texas to kidnap her biological daughter, over whom her parental rights had been terminated and who's with a foster family who's gotten a restraining order against Ms. Parvis. Her goal is to kidnap the kid and take her out of the United States forever. To do so, Ms. Parvis need to get the kid a passport, and she does so, by lying on the child's passport application in various ways (e.g.., by saying the kid is severely ill and that Ms. Parvis is still her legal mother, which she's not).
Ms. Parvis gets arrested when she goes to steal the kid. Texas prosecutes her for attempted kidnapping, and the United States thereafter prosecutes her for lying on the passport application.
Her state court sentence for attempting to kidnap the child? Less than two years. Out in one.
Her federal sentence for false statements on a passport application? Three years.
Doesn't it seem like you should (maybe just maybe) get more prison time for trying to kidnap a child than for lying on a passport application?
This is bold.
You get to withdraw your prior guilty plea in California if you can establish that you didn't understand at the time the prior immigration consequences of that plea. You don't have to prove ineffective assistance of counsel; it's enough that you personally didn't understand them.
Misael Padron files a declaration that says basically exactly that. He pled no contest to carjacking in a case in which he pretty definitely was going to get convicted. He faced a potential sentence of 10 years, but due to his plea, he only got three. In return for the carjacking plea, the prosecution dismissed charges of theft of a motor vehicle, vandalism, and hit and run with property damage, charges that almost certainly would have stuck if Mr. Padron had gone to trial.
The problem for Mr. Padron is that he's not a citizen, and instead got asylum from Cuba, and a conviction for carjacking results in mandatory deportation.
So six years after his conviction, in 2022, he moves to withdraw his plea. He submits declarations from himself and some other witnesses claiming that he didn't understand that he'd be deported if he pled no contest, and a declaration from an attorney that said that there were some lesser charges that he could have potentially pled guilty to that wouldn't have resulted in mandatory deportation.
The trial court denies the petition. The Court of Appeal reverses, and orders the trial court to grant the petition and vacate the convictions.
Here's the evidence on which the trial court found that Mr. Padron did, in fact, understand the immigration consequences of his plea deal (notwithstanding his contrary declaration):
(1) Mr. Padron signed and initialized a plea form, also known as a Tahl waiver, titled “Immigration Consequences" that expressly said: “I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.”
(2) At the plea hearing, in open court and on the record, the prosecutor told Mr. Padron: “If you are not a citizen of the United States, your conviction in this case will result in your removal, deportation, exclusion from the U.S., and denial of naturalization."
(3) At that same plea hearing, on the record, the prosecutor asked Mr. Padron: "Have you discussed the immigration consequences with your attorney?” Padron responded that he had.
(4) At that hearing, the prosecutor also said to Mr. Padron: “[D]o you understand that the district attorney’s office will not extend an offer that has no immigration consequences?” Padron answered yes.
(5) Mr. Padron offered no testimony or declaration from his public defender, but that attorney's notes from shortly before the plea deal was accepted state that Padron “now wants . . . offer of 3 yrs. state prison (on ct. 1 (P.C. 215(a) only) . . . even though [defendant] knows (and fully advised) that ct. 1 is a ‘future’ strike and is a ‘violent’ offense.” The attorney's notes also reflect that Padron accepted this plea on May 9, 2016 and was “advised of potential imm. csqs.”
(6) There's little to know hope that had Mr. Padron elected to go to trial, he'd have avoiding being found guilty of carjacking anyway given the substantial evidence against him. Nor is there any real reason to believe that the prosecutor would have offered a plea deal that didn't involve Mr. Padron being subject to deportation. Mr. Padron was a three-striker, having served two prior felony terms in prison, and the prosecutor expressly said during the plea hearing that the officer would never give him an "offer that has no immigration consequences."
Given this evidence, you can see why the trial court might well have decided that Mr. Padron did not meet his burden of proof to establish that he was, in fact, ignorant of the immigration consequences of his plea. Or at least I can.
The Court of Appeal nonetheless reverses, holding that the above evidence isn't necessarily dispositive given Mr. Padron's limited contact with his attorney and his PTSD. I can see that. It's possible that a neutral person evaluating the evidence might decide that Mr. Padron was telling the truth and didn't understand that he'd be deported notwithstanding all this contrary evidence. (It'd be tough, I think, to come to that conclusion, but it's definitely possible.)
But it's hard to see how this would cause Mr. Padron any prejudice that would justify relief given that he'd almost certainly be convicted of a deportable offense anyway. If he went to trial, he'd have been convicted. Of that I'm virtually certain. It might have been theoretically possible for Mr. Padron to have pled guilty to a non-deportable offense -- for example, "witness tampering" -- that still contained a three year sentence. But there's zero evidence here that the prosecutor would have offered or accepted such a hypothetical deal, especially since Mr. Padron was a three-strike offender and the prosecutor stated at the plea hearing that there'd be no deal without immigration consequences. If the failure to understand immigration consequences causes absolutely no harm -- if the result would have been no different either way -- I'm unclear those set of facts should entitle a petitioner to relief.
And I don't understand how the Court of Appeal can order the granting of the petition on remand. Even if the trial court erred, it'd certainly be within the province of the trial court to decide that it simply did not believe Mr. Padron, right? Admittedly, no such finding was made by the trial court here -- it simply resolved the issue on the declarations. But that's because it thought that the documentary evidence was so clear that no such hearing was required (and the prosecutor's office thought the same thing). I would think that a remand would be required to decide whether Mr. Padron was telling the truth, at a hearing at which, perhaps, the public defender might also be called as a witness to testify to precisely what was said to Mr. Padron before he accepted his plea. It's true that all of that was unnecessary before, but that's because the trial court thought (wrongly, according to the Court of Appeal) that the evidence was not in sufficient dispute to create a genuine issue. Now that the Court of Appeal has held that it does, we can't just assume that Mr. Padron is telling the truth, can we?
It just seem bold to me to direct a granting of the petition. Maybe, despite all the contrary evidence, Mr. Padron did not, in fact, understand the immigration consequences of his plea.
But maybe he did.
I have a different perspective than both Judge Gould (who authors the majority opinion) and Judge Bumatay (who authors the dissent) in this one.
I agree with Judge Gould that Alan Dershowitz signed a paper -- a complaint -- that contained frivolous allegations. But he signed that complaint as "of counsel" (though he signed a later frivolous motion containing similar claims as "counsel" for the party, which he claims was "a mistake") for the party.
Dershowitz asserts that he was only responsible for a particular paragraph (paragraph eight) of that complaint, so he couldn't be sanctioned for anything else. Is he right?
Judge Gould says that he could be sanctioned for the whole thing, but nonetheless reverses the sanctions here because before today's opinion, the ability to sanction lawyers who are "of counsel" was unclear. Judge Bumatay agrees with the reversal of sanctions, but thinks that "of counsel" lawyers should be subject to more lax standards even prospectively.
I disagree.
To me, if you sign a complaint (or any other filing, for that matter), you're signing the whole thing, unless you expressly say otherwise. Period. Doesn't matter if you're a partner, associate, of counsel, or whatever. If you sign it in toto, you're responsible for whole thing. You're not permitted to retrospectively argue that you were only signing it with respect to a particular portion.
By signing the complaint, Dershowitz obtained advantages both for himself and for his client. He got the advantage of being a designated attorney in a high-profile election challenge. His client got the advantage of having a big name attached to his pleading that attested to its seriousness.
If Dershowitz had signed this pleading and said "But I'm only attesting to the validity of Paragraph 8," both he and his clients wouldn't have obtained those advantages. And the other side would know that Dershowitz wasn't responsible for -- and couldn't be sanctioned -- for anything else.
But Dershowitz deliberately didn't do that. He signed the whole thing, without exception or caveat.
My rule, both prospectively and otherwise, would be this:
Anyone who signs a paper under Rule 11, whatever their role, is responsible for the entire paper unless somewhere in their signature they represent to the Court that they are only certifying a specified portion of that paper.
That's what I've always thought the rule was. That's what I continue to think the rule should be.
If I sign a public petition, or an amicus brief, or anything else, I'm singing the whole thing, and I don't sign it if there's something in it that's flatly untrue. What's true there is equally true -- if not more so -- for filings in federal court. If a Ninth Circuit judge puts their signature on an opinion, that's a sign that they agree to the whole thing. If they don't, they say so at the time, in a concurrence or otherwise. It's wrong -- as well as fundamentally unfair -- for someone to be able to retrospectively say "Oh, well, yeah, that's my signature at the bottom, but I only meant to sign for part of it -- the part to which you don't object." That's not the way the world works, nor should federal court work that way.
I've been "of counsel" to plenty of things. I'm more than happy to follow the proposed rule I advance herein.
So should everyone. Signatures are signatures. Lawyers are lawyers. You either mean what you sign or you say the parts to which you don't mean. Period.
I think Judge Bress is right.
The government wants civil forfeiture of $1,106,775 in cash that it seized from Oak Porcelli when it stopped him on I-80 in Nevada and found it vacuum-sealed in his SUV. Personally, I'm very inclined to believe that the government is correct that these funds are ill-gotten (and thus forfeitable), but that's what the trial's going to be about.
Prior to trial, the government propounded some interrogatories to Mr. Porcelli, as it's entitled to do. But there's obviously some potential self-incrimination at stake here. So the rule is that the interrogatories can only be about Mr. Porcelli's standing to object to the seizure, not its merits.
Mr. Porcelli says, yes, it's my money, and yes, I say it's mine, so yes, I have standing to contest the seizure. He also gives a tiny little bit of detail about where he contends the money legitimately came from: i.e., "by working in the movie industry for 15 years." But he didn't go into exhaustive detail. He says, though, that he doesn't have to: that if the only permissible issue is standing, then obviously he has standing, since he claims that the money is his, and that his responses are accordingly all that's required.
The trial court disagreed, and struck Mr. Porcelli's claim to the money as a sanction for his refusal/failure to answer the interrogatories completely. The Ninth Circuit affirms. Judge Bress dissents.
It seems to me that the dissent is correct. Here's the relevant legal rule: In civil forfeiture cases, the government can only use interrogatories to "seek information about a claimant’s standing— meaning, his 'identity and relationship to the defendant property.'" If that's the case (as it undoubtedly is), it seems to me sufficient to simply identify who you are, and that you claim to own it, and to provide the most minimal of details about how you got it; i.e., your "relationship to the property". Saying "I own it because I earned it through my work" seems entirely responsive (and sufficient). The rest is the merits, and for trial.
Judge Bress waxes poetic about the dangers of the majority's contrary approach, and there's a lot to be said for that.
But even just as a matter of text and purpose, the dissent seems more persuasive to me than the majority opinion. Mr. Porcelli's clearly got standing to object. He claims the money is his. Everything else is simply a fight about whether he's right that he earned the money legitimately.
Next time you need an excuse not to volunteer at your child's public school, use this opinion.
"But honey, since I'm a volunteer, if I die there, you won't get any money, even if it's the result of the school's negligence. I'm just looking out for you and the kids."
It's not going to get you out of watching a school play (or swim meet), but it's something, eh?
This is a short opinion. Very short. Three-and-a-half pages.
It could maybe stand for one more paragraph.
Luis Olmos was convicted of first degree murder in 2001, so that's preexisting bad news for him. He gets additional bad news today: the Court of Appeal decides that his sentence, which was for a murder that he committed when he was 17, isn't the functional equivalent of life without the possibility of parole, so he's not entitled to file a Section 1170(d)(1)(A) petition. So denial of the petition affirmed.
The good news, though, is this. Mr. Olmos thought that he'd be sentenced to 41 years to life, and his briefs on appeal said so. But the Court of Appeal noticed -- and then says in today's opinion -- that he actually was only sentenced to 33 years to life.
So that's eight years less than he thought. We'll count that as a win for him.
It's still a long time, though. But not functionally equivalent to a sentence of life without parole. Which is why Mr. Olmos loses his appeal.
The additional sentence that I wish had been added to the opinion was simply a brief factual recitation of the relevant dates and times. I know from the existing opinion that he was convicted in 2001 for a murder that occurred in 1996. I also know that he received some pretrial custody credits since there was a prior Court of Appeal opinion about that, and I also know that Mr. Olmos was entitled to a parole hearing in December 2024.
But what I don't know, and can't precisely figure out from the opinion, is what age Mr. Olmos will be when his "33 years" runs out. Will he be 50 -- murder at 17, plus 33 years? Will he be 55-- murder at 17, conviction 5 years later, plus 33 more years? Will he be some other age given his pretrial custody credits?
I understand that his sentence isn't equivalent to an LWOP because, apparently, at some age prior to, say, 65, he'll in fact be eligible to get out (even if he doesn't receive time off for good behavior, which I suspect he has, in fact, obtained.) But it'd be very nice to know precisely which age the Court of Appeal is talking about when it holds here that Mr. Olmos' age isn't sufficient to constitute LWOP.
So just one for paragraph -- or even sentence -- maybe? If only so other judges or justices can know precisely what the holding is here.
Okay, I guess. But Mr. Copeland should still give back the horse.
(And if Mr. Copeland hasn't done so already, I'm bummed that the reversal of his conviction, and hence the restitution order, no longer requires him to do so.)
I understand why Judges Milan Smith and Bumatay want to reach out and (entirely unnecessarily) decide this issue the way they want it to come out. But isn't the concurrence by Judge Wu -- sitting by designation from the Central District of California -- just clearly and unambiguously right on this one?
"Because we need not—and should not—break new ground today by addressing the undeveloped and potentially sweeping “cross enforcement” issue, I concur with the majority opinion except for Part II.B.1.
As a general rule, we should not decide a constitutional question unless it is necessary to do so. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (‘“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’” (quoting Burton v. United States, 196 U.S. 283, 295 (1905))); Christopher v. Harbury, 536 U.S. 403, 417 (2002) (highlighting “the obligation of the Judicial Branch to avoid deciding constitutional issues needlessly”). Several panels of this Court have previously declined to address “cross-enforcement” arguments when it was unnecessary to the disposition of the appeal. See, e.g., United States v. Malik, 963 F.3d 1014, 1015 n.1 (9th Cir. 2020) (declining to reach the question of whether a Nevada state officer had probable cause to search based upon federal marijuana laws because the officer had probable cause to search based upon violations of Nevada state law); United States v. Gray, 772 F. App’x. 565, 567 n.2 (9th Cir. 2019). So, too, should we. Because we conclude “without much difficulty” that Trooper Boyer had probable cause to seize Steinman’s BMW based upon a violation of Nevada state law, there is no reason for the majority to consider the question of whether the federal law violation provides another potential basis for probable cause.
Additionally, I cannot join Part II.B.1 because it rests on doubtful assumptions and thrusts Fourth Amendment jurisprudence into a precarious position with no clear limiting principles. This is especially true in the contexts of immigration and marijuana laws, where federal and state priorities often diverge.
Firstly, I find unconvincing the majority’s conclusion that Nevada has an interest in ensuring the federal felon-in-possession-of-ammunition statute is enforced. Unlike the federal government, Nevada could have—but has chosen not to—criminalize a felon’s possession of ammunition. Compare 18 U.S.C. § 922(g)(1), with Nev. Rev. Stat. § 202.360. The majority opinion initially references the Supremacy Clause. But the Supremacy Clause—which “invalidates state laws that ‘interfere with, or are contrary to,’ federal law,” Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 22 (1824) (Marshall, C.J.))— is not directly implicated here. Furthermore, it is implicit in the concept of federalism that federal and state governments may have different, if not fully divergent, policy and political priorities. See Printz v. United States, 521 U.S. 898, 918–19 (1997) (“Although the States surrendered many of their powers to the new Federal Government, they retained ‘a residuary and inviolable sovereignty.’” (citing The Federalist No. 39, at 245 (J. Madison))). That Nevada has not promulgated its disapproval of the federal felon-in-possession-of-ammunition statute does not establish a converse interest in enforcing it, as the majority assumes.
Secondly, despite the majority’s apparent attempt to cabin its ruling to the present case, there is simply nothing preventing today’s new rule from being applied in other cases where the “cross-enforcement” issue is more fraught and more common. As this issue arises with some frequency in the context of immigration and marijuana laws, what if a state does not want its officers assisting in the enforcement of federal law? The majority opinion offers no explanation on how today’s rule would not naturally extend to cases where a state has gone so far as to codify its opposition to “cross-enforcement” by its police officers as to a particular federal law. Indeed, the majority opinion assumes only for the sake of argument that state law is even relevant to the “cross-enforcement” issue. . . .
The inescapable conundrum with the majority’s unrestricted endorsement of “cross-enforcement” is that Trooper Boyer—a Nevada state law enforcement officer entrusted to enforce the laws of Nevada—is determined today to have committed no Fourth Amendment violation for seizing Steinman’s automobile based on conduct that is entirely legal under Nevada law. In other words, the majority’s new rule opens the door, as one district court has prudently observed, “to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce.” United States v. Talley, 467 F.Supp.3d 832, 837 (N.D. Cal. 2020) (citing Printz, 521 U.S. at 918–19).
In the end, the government’s “cross-enforcement” argument is but one of several contentions set forth in this appeal—the full ramifications of which have not been fully developed in the record before us. Because we find “without much difficulty” that Trooper Boyer was justified in seizing Steinman’s automobile based upon a violation of state law, it is unnecessary to reach the “cross-enforcement” issue today. The majority’s decision to nevertheless break new ground does more than start a conversation on a novel constitutional law doctrine—it sweeps with it a whole host of critical Fourth Amendment issues without announcing a rule or limiting principle to be used in future cases. For these reasons, I respectfully concur in the majority opinion expect for Part II.B.1."
That just seems 100% correct to me. Every single point.