Ramirez v. City of Buena Park (9th Cir. - March 27, 2009)

Let me tell you a story. Two stories, in fact. A Tale of Two Police Encounters.

The first has been in the news a lot over the past week. Ryan Moats ran a red light and was pulled over by a police officer in the Dallas suburb of Plano, Texas. Moats was rushing to the hospital to visit a dying relative, and explained this fact to the officer -- indeed, the stop was right outside Baylor Regional Medical Center -- but the officer didn't much care. Moats, by contrast, thought the stop was absurd given what was at stake, and for that reason showed the police officer very little deference; e.g., screamed "My mother-in-law is dying! Right now! You're wasting my time!"

Which made the officer angry. The officer responded with lines like: "Shut your mouth. You can either settle down and cooperate or I can just take you to jail for running a red light." Moats, after all, had indeed run a red light, and was refusing to show proof of insurance. To make clear the officer's power, he reminded Moats: "I can screw you over," so he'd better cooperate. In the end, Moats was released, but a firestorm of controversy ensued, and earlier this week the officer was placed on administrative leave, with no less than the Dallas Police Chief apologizing to Moats and his family and stating that the officer's behavior was inappropriate.

Moats, by the way, is a running back for the Houston Texans.

Fifteen hundred miles to the West, in Buena Park, California, Joseph Ramirez was sitting in the parking lot of a Rite-Aid taking a brief nap while sitting at the wheel of his car. Ramirez owned a local Outback Steakhouse, and occasionally took naps in his car during his exhausting 80-hour workweek. At around 8:00 p.m., a Buena Park police officer spotted Ramirez resting in his car and decided to check the situation out.

The officer approached the driver's side window of the vehicle -- where Ramirez was peacefully resting with his seat back reclined -- and tapped on the window. As a result, Ramirez woke up, and upon doing so, was perhaps a wee bit testy. Personally, I can emphathize with this reaction. To my chagrin, I'm not always the nicest person when I'm woken up either, especially after an incredibly long workweek. And, again, Ramirez wasn't doing anything illegal; he just wanted to take a nap.

So Ramirez opens his eyes, looks at the police officer, opens either the window or door slightly, and asks the police officer -- without the deference typically given to those in authority -- if it was really necessary for the officer to wake him up; e.g., "Is it standard procedure to go around banging on glass windows of persons that are sitting or sleeping in their cars?" The police force, like some other professions, tends to attract individuals who enjoy power, and who also do not like having their authority questioned. So the officer responds by clenching his teeth, giving Ramirez an "extreme hard look," and tells Ramirez: "Okay we were going to do this the easy way. I would have asked a couple questions and you would have been on your way. But now we will do it the hard way. Get out of your car!”

Ramirez complies, at which point the officer promptly (and without consent) conducts a search for drugs and anything else he can find, frisking Ramirez and looking inside his pockets. Finding nothing -- a fact consistent with Ramirez having previously told the officer that he neither drank nor did drugs -- the officer checks Ramirez's pulse, which the officer testifies was 132 beats per minute. (Parenthetically, this is hardly surprising given the circumstances, and in any event, I am extremely dubious about the officer's credibility on a number of points, including this one.) The officer also says that Ramirez's eyes looks dilated (again, somewhat uncredibly), and while Ramirez successfully performed the finger-to-nose sobriety test, the officer testified that in the Romberg test -- where a person is asked to close his eyes, tilt his head back, and estimate the passage of time -- Ramirez took 45 seconds to estimate the passing of 30 seconds, which is a bit outside the acceptable range of 20 to 40 seconds.

On this basis, the officer arrests Ramirez for being under the influence of a controlled substance and takes him to the station. The officer also impounds Ramirez's car.

At the station, by the way, they draw blood from Ramirez to check for drugs and/or alcohol. Negative. Ramirez was totally telling the truth.

They eventually dismiss the charges against Ramirez, who thereafter files a Section 1983 claim against the officer. Judge Taylor grants summary judgment on qualified immunity grounds, and Ramirez appeals to the Ninth Circuit.

Judge Brunetti writes the opinion, joined by Judges Kozinski and Rymer. I agree with the panel that qualfied immunity covers the initial detention of Ramirez (i.e., ordering him out of the car) and his subsequent arrest. Though I think the propriety of these acts is far from crystal clear, the fact that Ramirez was sleeping in his car plus some of the other alleged facts (that Ramirez was allegedly breathing heavily, had a high pulse rate, failed the Romberg test, etc.) are enough to preclude liability. I also agree with the panel that the search of Ramirez was neither justified nor covered by qualified immunity; simply put, there was no evidence whatsoever of any guns or other threat to officer safety. What sort of damages do you get for that search? Not much. The value of a public stop-and-frisk and an unjustified search of your pockets. But, still, there's liability.

I cannot, however, agree with the panel's rejection of Ramirez's claim that the impoundment of his car was improper. Judge Brunetti holds that the impoundment was permissible under the community caretaking doctrine, on the theory that the officer testified that he impounded the vehicle because there was a risk that it would be stolen or vandalized. But the vehicle was in a parking lot. Sure, there's always a risk that a car -- any car -- will be stolen or vandalized, but that hardly justifies its uniform towing. Moreover, the only alleged harm would be to Ramirez's own property, and if he would prefer to take the risk of leaving the car there as opposed to the certain downside of having the vehicle towed, I don't see how "community" caretaking permits the officer to veto that choice. If you ask me whether I would choose to risk some probability (say, 20%) of $500 or so damage to my car (and/or by insurance deductible) from leaving my car in a public parking lot for a couple of hours until I (or someone I know) can pick it up versus the certainty of having to pay $350 in towing and storage charges, I'd almost unformly -- and rationally -- choose the former. Permitting the police to veto that choice, allegedly merely to protect me, hardly seems a "reasonable" seizure to yours truly.

More importantly, the panel seems to me to neglect a fundamental portion of this lawsuit, and the part that's highlighted by my beginning this post with the story involving Ryan Moats. The police officer here was angry. He did what he did not to protect Ramirez, but to harm him, and not only could a reasonable jury so conclude, but I'm pretty darn positive that's right. When the officer said "Now we'll do it the hard way" once his authority was challenged, that's something I understand, and it should rightfully inform the panel's analysis. Why did the officer tow the car? He testifies that he did it to protect Ramirez's vehicle. Bullshit. He did it to teach Ramirez a lesson: that if he (or anyone else) resists being obsequious to police authority, he'll suffer, and that there's nothing he can do about it, even if he's right that he's not under the influence and is doing anything wrong. And the Ninth Circuit here tells the officer that he's exacly right: that as long as he doesn't pat Ramirez down, he can arrest him and tow his car and there's nothing at all that Ramirez can do. No liability. No admonishment. Nothing. As long as Ramirez doesn't play in the NFL, the officer gets off scot free.

I think that a reasonable jury could easily conclude that the officer was angry and, especially in light of the various conflicts in the evidence, that a plethora of the things that the officer said are either exaggerated or untrue. And, in particular, that the towing of the car was unjustified, and performed unreasonably and exclusively to punish Ramirez for his lack of deference.

One final story. If only to make it a trilogy. Judge Cercone (from the Western District of Pennsylvania) held earlier this week that it violates someone's civil rights -- and unreasonable under the Fourth Amendment -- for an officer to arrest someone merely because he gave the officer the finger in traffic. What applies to flipping someone off applies equally, in my view, to any other form of insufficient -- but legal -- deference. Including here.

Long Beach Mem. Med. Cntr. v. Superior Court (Cal. Ct. App. - March 26, 2009)

It's very rare for an appellate court to find that an arms-length six-figure payment is insufficiently high to qualify as a good faith settlement under CCP 877.6 and -- on a writ, no less -- reverse the trial court's good faith finding as an abuse of discretion. But the Court of Appeal does so here. And you can see why.

You want a good settlement. But not a settlement that's too good.

Sanchez v. Holder (9th Cir. - March 26, 2009)

Here's a prototypical example where the facts are good but the law is bad.

The question is whether Mario Sanchez is a person of "good moral character". You can read Judge Pregerson's dissent in its entirety -- and it's very good on this point -- to get a complete sense of why Mr. Sanchez might be precisely such a person. But here's a typical sentence therein: "How can we possibly say members of Congress intended that a man who married his hometown sweetheart, brought her here for a better life, worked hard for twenty-one years to provide for his three children, bought a home, attended church regularly, and cared for his ailing father is a man of bad moral character?"

The problem for Mr. Sanchez is that the facts are good for him but the law is very, very bad. So much so that he only gets a single vote -- Judge Pregerson's -- in the en banc decision. Mr. Sanchez helped his wife enter the country. So we're booting you out notwithstanding all the equities in your favor.

This is not a case of good facts making bad law. It's instead of case of bad law overwhelming good facts. Which happens just as often -- if not more -- than the former.

U.S. v. Bassignani (9th Cir. - March 25, 2009)

The majority opinion (by Judge O'Scannlain) and dissent (by Judge Bea) demonstrate one of two things. Either (1) that the standard of review matters, or (2) that it doesn't.

Check it out.

People v. Reyes (Cal. Ct. App. - March 24, 2009)

You're from Guatamala. You're in a restaurant and see a guy who's from Mexico who's celebrating a friend's birthday. That's a really good reason to kill the guy. Right.

Glad to see you off the street.

People v. Uecker (Cal. Ct. App. - March 24, 2009)

Some guys are creepy. Very. And unacceptably so. That's something that's clearly true, and I want to make that crystal clear.

So with that understanding, let's run with the concept and see how far it goes. Here are the acts of a person I'll call "Danny Uecker". Tell me what you think the appropriate punishment should be. (Sorry the facts are so long, but I want to give you the complete details about what Danny did before you make a judgment):

(1) M encounters Danny in a parking lot near her work, as Danny is on his bicycle parked three or four feet from M's car. M. commented that bicycling was good exercise. Thereafter, Danny would be beside M.’s car every day when she would go to lunch. They would exchange greetings, and Danny sometimes would try to engage M. in further conversation. On occasion M. would oblige, but she always would say she had to get back to work because she was running late. M. was basically being polite. This pattern continued week after week, month after month. Danny also started leaving notes on M's car. The first note included Danny's telephone number and read: “‘If you want to go riding bicycles, give me a call.’” M. wasn't interested and ripped it up. A couple months later, M. started parking on the street, but Danny kept stopping by, and asked whether she was trying to “‘get away from [him],” and she said “‘[n]o.’” Danny continued showing up at her new parking spot, leaving her notes and trying to engage her in conversation. One of these notes read: “‘I’m not a homeless guy. I have a job. I have a roof over my head. I want to go out with you.’” M. threw the note away and did not talk to him about it. Danny's next note was a Christmas card that read as follows: “[M.], I hope you have a nice
holiday season! I know how we met is a little rare, and I look like a transient on the side of the road but I can assure you I do have a full time job and a roof over my head. [Smiley face.] Listen, no strings attached, if ever you want to call sometime just to talk, I’m open for it, if you haven’t lost my number? Its really nice talking to you as an attractive, mature lady! I’m not looking for anything super serious but I wouldn’t mind the companionship on a cold, rainy day, sipping hot chocolate. [Smiley face.] Danny P.S. Nice car. [Smiley face.] I like it better than the Mustang.” The next day, Danny asked if M. got his Christmas card. She thanked him but
“[f]irm[ly]” said she was “not interested” because she was “seeing someone” and asked whether his statement about her being a mature woman implied she was old. Danny said “no,” “got mad,” and asked why she had been flirting with him. She said she had not been and was simply responding to his conversation. She then announced she had to go pick up her son, and Danny left. The next day, Danny left the following note: “[M.], I’m not on my bike anymore. The weather is too cold, wet or unpredictable. I’m in a small brown truck w/ a camper shell. I still spend my lunch hour here because its quiet. I don’t like to keep leaving notes on your car. Would much rather talk to you. [Smiley face.] Ok so you’re not mature! You’re an immature trouble making brat! Now what? [Smiley face.] What’s a guy gotta do to get a call from a beautiful woman? I’ll be here tomorrow if you want to see me. You sure have some funny lunch hours. [Smiley face.] Dan.”

(2) J. was a real estate agent and received a a phone message from Danny saying he was looking for a
“livable shack in the boonies for less than 60,000 dollars.” Defendant then began calling J. a couple of times a day both on her cell phone and her office line. J. thought Danny's messages were “a little too comfortable and playful.” Danny joked about his friends coming over and “rid[ing her] horses” after she mentioned she liked the country and had horses, and Danny told J. she had a “really cool voice” and he could “‘[p]robably talk to [her] all day.’” During the second week of phone calls, Danny left a message stating he had something to tell J. He then laughed and said, “‘Oh, no, never mind. If you’re curious enough, you’ll call back.’” When J. did not call back, Danny called her a couple of days later and asked if she had received his message. When she said she had, Danny asked her, “‘Do you like surprises?’” J. responded that she was “‘[n]ot particularly fond of them.’” Danny thereafter left a message for J. saying he wanted to come by the office, but J. (for entirely good reasons)didn't respond to it. A couple of days later, Danny left the following “irate” message: “‘I guess that’s what you realtors do, you just drop us.’” J. responded with the following message: “‘I’m a little offended that, you know, you would speak to me that way because I had been trying to help. Every step of the way. And didn’t really appreciate that.’” J. told Danny she was quitting the residential real estate market. Danny called J. back about three times after her last message. The first two messages were lengthy and extremely apologetic. In one, Danny said: “‘I started this with you, [J.], because you didn’t treat me like everybody else -- some other realtors. So, with all due respect, I’d like to finish this with you. But I want to handle this with you -- I want you to handle this or at least handle my issues, anyway.’” In another, Danny said: “‘I’m sorry. I shouldn’t have yelled at you like that. I had some words with a buddy at work. It wasn’t your fault, but I want you to finish what you’ve started here with me. I know you’re doing the commercial thing, but I want you to finish what you started with me.’” The third said, “‘Hey, I just want, you know, out of dodge and by now, you probably know why.’” In all, Danny called her about 30 times over a three-week period, and of those calls, 6 to 10 were direct
conversations.

Okay. There you have it. A creep, and doing stuff that's clearly impermissible. Things that legitimately freak out the recipients of the unwanted calls and visits. What's the appropriate sentence?

Forty years. For stalking. Which includes the element, in both cases, of "making a credible threat" against the victim.

The Court of Appeal affirms, holding both that the acts described above statisfied the "credible threat" requirement as well as that the forty year sentence does not constitute cruel and unusual punishment.

Needless to say, Danny's not a nice guy. That said, what do you think about the result here? Justice? Rough or otherwise?

People v. Henry (Cal. Ct. App. - March 23, 2009)

It's your trial. During the prosecutor's opening statement, you start saying -- in front of the jury -- "You know what I'm here. They trying to save me life. I didn't do no murder in here." The Court responds: "Stop. Stop." Since your outburst is improper. In addition to the fact that your grammar is atrocious. But you continue, saying "What the fuck is wrong with you? I didn't do no murder. I ain't resisting arrest. I'm a psych patient. They trying to give me life for something I did not do. For the record, I'm a psych patient. I didn't do no murder." Then, when you're being escorted out of the courtroom in order to prevent further outbursts in front of the jury, you add: "I need to see my doctor. I want to see my doctor. I want to see my doctor. I didn't do no damn murder. What the fuck is wrong with you people?"

That's bad enough, and more than justifies removing you from the courtroom. But then, once you get back into a holding cell, you (1) take off all your clothes -- presumably to ensure that they don't take you back into court, but my ability to understand why you're doing what you're doing is admittedly low, and (2) threaten to stab anyone who tries to take you out of your cell.

Given all this, when your appointed appellate lawyer argues that you were impermissibly excluded from your trial, are you really surprised that the Court of Appeal unanimously disagrees?

U.S. v. Gutierrez-Sanchez (9th Cir. - March 23, 2009)

Here's a case that helps establish a couple of self-evident points. First, that some people really, really want to be in the United States. Like Hugo Gutierrez-Sanchez, who had previously been caught in and removed from the United States twelve times prior to being found in the brush a couple of hundred yards north of the U.S.-Mexico border on lucky number thirteen.

Second, those same facts establish something that people in San Diego already know fairly well: that it traditionally takes a lot before the government does anything more than ship you back to where you came from. A fact that, among other things, led Carol Lam to be fired by Bush from her former U.S. Attorney job. The problem of what you do with people who keep coming back is not an easy one, especially when applied to people (unlike Gutierrez-Sanchez) who aren't violent and whose only crime is wanting to live in the United States.

Third, what happens here highlights both the reality of the modern plea bargaining system in an overworked judiciary (e.g., border crimes down here in San Diego) as well as the fact that it does not always work as planned. On the one hand, the U.S. Attorney is desperate to get a guilty plea because there's no way we can possibly take even a fraction of these border crime cases to trial. On the other hand, it's No. 13, so we gotta have him do some time. The guideline range for being a deported alien in the United States is 10-16 months, but there obviously has to be an incentive to plea otherwise the deal won't work, so the deal is for him to plead guilty to a lesser offense of making a false statement to a federal official, based on the fact that when he was caught, he gave a fake name to ICE. That crime results in a lower guideline range of 6-12 months, the parties agree to recommend 9, and hence we have a deal. Nine instead of 10-16. Pareto optimal.

That's how these things work. But here's the rub: The parties also understand that this type of deal isn't binding on the judge. And Judge Larry Burns, down here in San Diego, doesn't like the deal, and so decides to sentence Gutierrez-Sanchez based on the "real" guidelines range, and as a result imposes the high end of 16 months. Gutierrez-Sanchez appeals, of course, but the Ninth Circuit affirms.

Which obviously works in an individual case, at least if you agree with Judge Burns. (Here's his rationale: "It’s incumbent upon me to fashion some kind of sentence which will tell him 'we mean business. When we say don’t come back, it’s not just some mantra that a guy in a black robe waves in front of you or words that are repeated. We mean it. Don’t come back. Bad things are going to happen to you if you come back. You’re going to spend a lot of time in an American jail, which has got to be worse than your country.”) The downside, of course, is that rejecting the plea deal, if such rejections become more than extremely isolated exceptions, will result in fewer deals and hence more trials. Which, again, the U.S. Attorney can't accept, potentially resulting in even more unjust deals (i.e., not putting the full facts into the record or agreeing to voluntary departure and dropping of all charges) as a means of avoiding the possibility of judicial discretion which the defendant can't (or is unwilling to) risk.

This is a problem inherent in all systems -- like ours -- founded so fundamentally on plea deals, but the situation with border crimes down here in San Diego is a good exemplar. So it's a great case for the practical as well as theoretical side of plea negotiations, judicial supervision, and the larger problem of dealing with pervasive non-serious criminality.

People v. Grimes (Cal. Ct. App. - March 16, 2009)

Next time the Clerk of the Court gives you a hard time, just remember: They're not perfect either. Take, for example, this criminal case:

"The offense occurred on the night of August 20, 2005. Defendant entered his plea on October 14, 2005. He was sentenced on November 23, 2005, and he filed his notice of appeal that same day. [Me: Notice that justice is pretty darn speedy thus far!] The superior court clerk must "promptly mail" to the Court of Appeal notification of the filing of a notice of appeal. . . . However, it was not until March 11, 2008, that notice of filing the notice of appeal was mailed. In a declaration, the Appeals Clerk for the Amador County Superior Court stated that she had just discovered that this appeal, and two others, had been 'filed and forgotten,' and that defendant, who had received a two-year sentence, 'is more than likely out of prison by now.' Once we were notified of the delay in these cases, we processed them expeditiously."

Oopsies!

But Justice Morrison essentially says: No blood, no foul. The Clerk gave a mea culpa, and there was no meritorious argument anyway.

Still. "File and forget" probably isn't a practice of which you want to make a habit. Even though, in the short term, it sure does save some time, eh?

The Nethercut Collection v. Regalia (Cal. Ct. App. - March 19, 2009)

"You say to-may-to. I say to-mah-to." Or, as in this case, "You say slader per se, I say slader per quod."

Per se. Per quod. Per se. Per quod.

It's the latter, so let's call the whole thing off; i.e., reverse the jury verdict of $750,000 and enter judgment in favor of defendant.

Se versus quod. It matters.

Fisher v. City of San Jose (9th Cir. - March 11, 2009)

Want to see another case in which the en banc draw definitely matters? Here you go.

It's a case about $1. Or about the sanctity of the home. Or about warrants. Or about the needs of the police to respond to emergencies. It depends on who you ask. What everyone agrees is that the plaintiff here was a guy who needs to drink less and stop making threats and pointing guns and people. Especially in combination.

Here are my brief comments about the case when the initial opinion (by Judge Berzon, with a dissent by Judge Callahan) came out a couple of years ago. The case then gets taken en banc, which ultimately reverses (both the panel as well as the district court) on a 6-5.

Who are the five dissenters? The civil libertarians, keen on the warrant requirement. Two Carter appointees -- the longstanding liberals Reinhardt and Pregerson -- as well as two Clinton appointees, Thomas and Paez. Plus Chief Judge Kozinski, representing the libertarian crowd.

Who are the six in the majority? Four strong conservatives -- Judges O'Scannlain, Rymer, Bybee, and Randy Smith -- plus Judge Tallman (a reliably conservative Clinton appointee) and Judge Gould (Clinton). Change even one of these six draws with your average Ninth Circuit judge and I think the case goes the other way. Not by much, mind you. But the other way.

Alan T.S. Jr. v. Superior Court (Cal. Ct. App. - March 18, 2009)

According to a report issued by the CDC this morning, not only did 2007 see the largest number of children born ever in the United States (4,317,119), but the percentage of children born out out wedlock reached an all-time high as well: 40%. Pretty interesting stuff.

Media reports today blame the usual suspects: cultural shifts, media influence, etc. But this afternoon, thanks to Justice Sills, I learned the true reason for the increase in births to unwed mothers: Litigation.

How's that, you ask? How could lawsuits possibly lead to an increase in births by unwed mothers?! For the answer, I need only refer to page three of this afternoon's opinion by the Court of Appeal, which contains empirical evidence that the cost and burden of litigation leads to an increase in out-of-wedlock births:

"Alan's [the husband] . . . ran up a large credit card debt in order to pay a $25,000 attorney fee bill from the time when he was represented . . . . Mary [the wife] has remarried, Alan lives with a non-marital partner with whom he recently had a child. [FN:] Alan told us at oral argument that, given his experience in this litigation, he is reluctant to ever get married again."

Divorce court. The heretofore unknown cause of out-of-wedlock births. Stay tuned for more developments on this much-overlooked influence on American demographics.

321 Henderson Receivables v. Ramos & Red Tomahawk (Cal. Ct. App. - March 18, 2009)

Today's a big day for 321 Henderson Receivables Organization, which is a huge player in the California structured settlement market. That market basically consists of entities (like 321 Henderson) who buy up structured settlements -- e.g., tort annuities -- and give the recipients a lump sum. There's a big business in this area, proof of which can be obtained merely by watching various commercials on late-night television. And 321 Henderson has obtained judicial approval for over two thousand of these settlements in California.

Lately, however, some judges up in Fresno have been denying otherwise-routine judicial approval, which prompted 321 Henderson to file multiple appeals. Thus far today, the resolution of those appeals has taken up 100% of today's published opinions by the California Court of Appeal (see here and here). And in each of these cases, 321 Henderson prevails.

So today's a big victory for those entities who make a profit on tort victims desperate for a lump sum. I'd feel better about that, quite frankly, if the margins on this business were a lot smaller than they are. However, when you've got a sophisticated business negotiating with a typically uneducated and desperate consumer over something as complex as the appropriate discount rate for a structured annuity, you can probably figure out as well as I can who gets the best of those transactions and by what margin. And why those commercials more than pay for themselves.

Symantec Corp. v. Global Impact (9th Cir. - March 11, 2009)

There's a difference between a default and a default judgment?! Who knew?

(You should feel the dripping sarcasm on this one.)

People v. Williams (Cal. Ct. App. - March 12, 2009)

Here are the facts. Sorry they're so long, but I want you to have the full details. What's the appropriate punishment?

"Appellant was released from state prison on Wednesday, May 24, 2006, on parole after a Madera County conviction of forcible rape in concert. He took an Amtrak train back to Madera and spent his first night after release with a friend. He could stay there only one night, however, because the friend was moving. Within 24 hours of his release, as required, appellant met with parole agent and officer of the day Gloria Chadwick for an initial interview. . . . Chadwick [] personally advised appellant to register within five days under section 290. . . . Chadwick directed appellant to meet with his assigned parole agent, Todd Cregar, on Friday, May 26, 2006. Appellant spent the night of Thursday, May 25, 2006, at the Madera Rescue Mission (the Mission).

On May 26, 2006, appellant met with Agent Cregar and advised Cregar he was staying at the Mission. Appellant had not yet registered with either the police or the sheriff. Cregar directed appellant to register and noted in his parole file that appellant must register by May 31, 2006. Cregar informed appellant that appellant could not remain at the Mission. It was too close to a school to allow for appellant’s residence.

Cregar arranged for appellant to stay at the Casa Grande Motel (the Motel) in Madera. He drove appellant and another parolee to that motel and directed both to register with the Madera Sheriff’s Department since the Motel was located in the County of Madera. Appellant spent that night, Friday, May 26, 2006, at the Motel.

Cregar made a mandatory home visit within five days of placing appellant at the Motel, but appellant was gone from his assigned room and had taken all of his personal belongings with him. Cregar returned another day but appellant was still not present.

Appellant had moved to the home of a cousin in the City of Madera on Saturday, May 27, 2006. He had done so, according to his testimony, because he had been kidnapped and threatened by certain people who came to his room at the Motel. He had escaped but remained afraid of them. He made no attempt to contact Agent Cregar, and he did not register. He remained at the home of his cousin until his arrest on Saturday, June 3, 2006. At that time, he had been out of prison and in Madera for 10 days, not counting the day of his release. He had passed six full working days, not including the day of his release, in Madera. . . . Appellant . . . [thus]failed to register within the 'five working days' specified in section 290."

There you have it. Arrested on Day 6 for not registering by Day 5. What's the appropriate penalty?

What'd he get here? 26 years to life. Which the Court of Appeal affirms, and the law's so bad that the attorney doesn't even raise a cruel and unusual punishment argument.

What do you think? Justice?

U.S. v. Brobst (9th Cir. - March 9, 2009)

If you like kiddie porn (and print it out from the internet), put it away before you hire a contractor to redo your cabinets. Because other people aren't so fond of it, and have a tendency to call the police when they stumble across it in your home.

A simple warning, really. But one that can save you years in prison.

Trout Unlimited v. Lohn (9th Cir. - March 16, 2009)

Natural versus hatchery-spawned salmon and steelhead in the Pacific Northwest. Did I know much about this distinction before today? No. But now I do.

Sort of interesting stuff.

People v. Kim (Cal. Supreme Court - March 16, 2009)

Let's make a list of things not to do.

First, if you're a minor, don't possess live ammunition. Yes, it's just a misdemeanor, but still; it's a crime (plus it's lame). Second, if you've ignored my first instruction, while you're on probation for that offense -- and while you're waiting to start your freshman year at UCSB -- don't burglarize a tool shed. You moron.

So you've ignored (1) and (2). You've now started college. Surely you're older and wiser, right? So why did you promptly get caught shoplifting from the UCSB bookstore?!

One last thing. Still having not learned your lesson, your parents then give you some money to go buy some groceries at Costco, at which point you shoplift again (and, pitifully, yet again, you're stealing video games). Wow. You're definitely going to be the UCSB graduate of the year.

Now you get charged with a felony. And have to do real (read: non-weekend) time. Congratulations.

By the way, one more thing. Everything I say above goes double if you came to the United States from South Korea as a young child. Because that means you're not a citizen. And even with attorneys and judges doing a massive amount of work on your behalf and feeling incredibly sympathetic towards you, it means that you're going to be deported to South Korea. Which is a place far different than UCSB, and where you definitely don't want to spend the rest of your life if you've lived in the United States for virtually forever.

And when your efforts reach the California Supreme Court, with sympathetic judges vacating prior sentences so you avoid mandatory deportation, you'll find that the law doesn't look favorably upon habeas remedies that transpire only -- as here -- only after you have already fully served your sentence. So no joy here either.

All of which could have been avoided if you had gotten even a smidgeon of a clue upon, say, entering college.

Yes, I know that not everyone "thinks about their future" all the time. But when the consequences are prison and deportation, maybe realize that pocketing a video game is far from worth it.

U.S. v. Mayer (9th Cir. - March 16, 2009)

This morning sees a dissent from the denial of en banc review. Joined by only three judges. But I mention this dissent because

(1) It's got a neat opening line: "This is a train wreck in the making."

(2) The average IQ of the dissenters - Judges Kozinski, Reinhardt, and Willie Fletcher -- is quite high. And

(3) Given (2), it's somewhat surprising that no one else joins in the dissent. Which perhaps can be explained in one of two ways: (A) Sometimes, it takes genius to truly understand a problem; or (B) Sometimes, crazy looks a lot like genius.

U.S. v. Hammons (9th Cir. - March 11, 2009)

When you have Judges Pregerson and Dorothy Nelson on the panel, you sometimes get an opinion that's much nicer to -- e.g., softer on -- the participants than you might receive from some other judges. For example, here is what Judge Pregerson says about one of the arguments that the AUSA made at oral argument:

"The Probation Office also alleged that Hammons had violated the conditions of his supervised release by failing to show up for a drug test and by testing positive for alcohol use. Hammons denied these allegations and they were ultimately dismissed by the government. The district court stated that these allegations were not 'the subject of the sentence' and are not at issue in this appeal. The government’s suggestion at oral argument that these dismissed allegations provide insight into the district court’s sentencing decision is troubling."


Trust me when I say that an opinion by a wide variety of other judges wouldn't have left it at "troubling". And wouldn't have put the comment in a footnote, either.

By contrast, while not making it personal at all, Judge Pregerson doesn't show a massive amount of restraint towards Judge Stephen Wilson. Judge Pregerson notes that at the time Judge Wilson delivered the sentence, the law in the Ninth Circuit was clear that the sentencing judge was required to consider the § 3553(a) factors and state on the record the reasons for imposing the sentence it selected. Notwithstanding this fact, the only "explanation" that Judge Wilson gave for choosing the high end of the guideline range -- ten months in prison -- even though the Probation Office had suggested merely putting the defendant in a recovery program was the following: "I don’t give sentences without careful consideration. That’s the sentence.”

That doesn't quite cut it. And not only does the Ninth Circuit unanimously reverse, but Judge Pregerson also makes clear that "the flagrant nature of the district court’s error alone is sufficient to establish plain error." Which was the second time in the opinion Judge Pregerson used the term "flagrant" to describe the error by Judge Wilson.

Sometimes a judge is nice. Sometimes: Not so much.

People v. Garcia (Cal. Ct. App. - March 12, 2009)

Do I think that Mario Garcia is guilty of murdering Christie Wilson? Yeah. Probably. (Though the evidence is far, far from clear on this point. Indeed, there's not even a body, and the evidence of Christie's death is a lot less than in many no-body cases.) Do I think that reversal of his conviction is required on the basis of any of the alleged errors in the trial court? Maybe not. Though the failure to instruct on possible third party culpability -- there's at least a possibility that Wilson's volitile no-good boyfriend, Daniel Borlando, might have committed the crime -- worries me a bit.

That said, today's 61-page opinion by Justice Cantil-Sakauye seems one-sided and relentlessly results-oriented to me. I think that a number of the issues raised by Garcia are at least close ones, and yet the opinion addresses them almost always in a perfunctory fashion -- in an opinion that almost reads like a brief for the prosecution. Something that'd I would not have been surprised to see from Tani back when she was a D.A. in Sacramento, but in the present context, from a judge, I expect a little more. Particularly when 59 years to life is on the line.


I'm not saying the result is wrong. But I think a little more neutral thought and analysis would definitely help.

U.S. v. Hilgers (9th Cir. - March 11, 2009)

Sure, Judge O'Scannlain writes the opinion, and Judge Bybee (alongside Judge Graber) is also on the panel, so it's not radically surprising that the court agreed that the district court's (fairly substantial) upward departure from the guidelines was permissible. This is not a "softie" panel.

That said, I agree with 'em. Yes, the guidelines range was 12 to 18 months. But the sentence of five years was, in my view, permissible. It's a large jump, but the defendant was a pretty big con artist with a long history of this stuff, and he (and others like him) need to be deterred.

Plus, it ain't a very good era nowadays in which to be a real estate broker fraudster. We tend to look askance at having to dump a trillion public dollars into the system.

People v. Banker's Ins. Co. (Cal. Ct. App. - March 11, 2009)

Sometimes it's pretty easy to describe succinctly (and colloquially) competing positions in a case.

Justice Haller, writing for the majority: "It's totally easy to say the words 'Bail is forfeited' on the record. That's been the rule for decades. Just do it. We're tired of reminding you. When the judge says something else, we'll reverse. Get it right."

Justice McIntyre, who dissents: "Come on. The judge said: '[W]e'll keep the [$75,000] bail bond and issue a warrant [for $200,000].' The words 'we'll keep the bond' obviously mean, as well as meant to everyone, that the bond was forfeited. Oh, and we mailed 'em notice of the forfeiture as well. Substance over form."

The actual opinion is only slightly longer.

Le v. Astrue (9th Cir. - March 10, 2009)

Sometimes the law can be flexible and do the right thing. Even in a snare-filled and hypertechnical area such as the contents of your notice of appeal, which is something that we generally require you to do just right.

For this reason, I agree with Judge Ikuta here.

Though the opinion sounds somewhat grudging about it -- referring to "precedent compels us" and the like. Whereas even as a procedure person, I'd have no such qualms. I think the Court of Appeals definitely both has jurisdiction and should properly review the case.

Walker v. GEICO General Ins. Co. (9th Cir. - March 10, 2009)

Dude! Your name -- or at least the name on the caption -- is "Johnnie Walker". What are you thinking?! Don't do business as "PJ's Auto Body". Do business as "Johnnie Walker's Auto Body".

Here's my idea for your slogan:

"Been in a car accident? Time to visit Johnnie Walker!"

Feel free to trademark it.

U.S. v. Krstic (9th Cir. - March 10, 2009)

Here's a good case for the statutory interpretation crowd. It involves a statute that gets messed up when Congress adds the seemingly innocuous word "such" to it. It's not an obvious problem, but it definitely exists. The statute reads:

"Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document . . . or . . . possesses . . . any such visa, permit, border crossing card, alien registration receipt card, or other document . . . knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement . . . [shall be punished]."

Imagine -- and, as you might expect, this isn't a hypothetical -- that someone's charged with posssessing a real (not forged) visa that he knows was procured by a false statement. Guilty under the statute? It looks like the second portion of the statute covers him, but the words "such visa" seem to require that the visa satisfy the first portion too, right?

Judge O'Scannlain does a very good job, I think, of explaining and interpreting the statute, and he ultimately persuades me that the statute indeed covers the "hypothetical". Largely because when the statute was originally passed, in 1924, it lacked the word "such" and seemed clearly to criminalize both prongs separately, and there's no reason to believe that Congress intended to alter this regime through the various historical changes.

The only thing I'd add to Judge O'Scannlain's analysis is that cases like this are, in my view, tough for the "just read the statute" crowd. (Which, to be clear, I'm not one of.) If the terms of the statute are dispositive, I think clearly "such" incorporates the first prong, and Krstic (the "hypothetical") isn't guilty, since grammar and context would indicate such a result. It's only once you're able to get into legislative history that the contrary view becomes clear.

Vaden v. Discover Bank (Supreme Court - March 9, 2009)

I very rarely post about United States Supreme Court cases, on the theory that they already receive a massive amount of attention and don't need much more from me.

But I thought I'd make an exception -- albeit a brief one -- for this case. Because (1) it's a civil procedure case, and (2) on an arcane jurisdictional point, and hence probably won't get much play from anyone other than us (pathethic) civil procedure professors. And also because it's got a neat little makeup. Indeed, as far as I can tell, this is the only 5-4 opinion -- ever -- by Justice Ginsberg that attracted the following makeup of judicial supporters: Scalia, Kennedy, Souter, and Thomas. Talk about an eclectic mix!

For what it's worth, I agree with the five-member rat pack led by Justice Ginsberg as opposed to the equally crazy group led by Chief Justice Roberts (and joined by Justices Stevens, Breyer, and Alito) in dissent. Yes, the majority's view may seem a little artificial. But it flows naturally from the fact that we don't allow federal jurisdiction over federal defenses or counterclaims. Yes, that's a little bit silly, but it's the law. Both here -- in the arbitration context -- as well as elsewhere.

So let's hear it for the Ginsberg-Scalia-Kennedy-Souter-Thomas party. Something that I doubt we shall ever see again.

Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - March 9, 2009)

No one writes a dissent from the denial of rehearing en banc with the Supreme Court as the target audience, right? Nah. Never. How could one think such a thing? How would a judge even try to write an opinion that was designed to encourage the Supreme Court to grant certiorari -- talking about intercircuit splits, the need for national uniformity, the national importance of the issue, etc.? That's crazy talk.

And if some hypothetical judge somehow did so, surely no one would respond by authoring a concurrence in the denial that was designed to convince the Supreme Court to not take the case. Of course that's right. That'd just be silly.

Nope. That's surely not what's happenning here. In an ERISA case, of all things. Judge Milan Smith -- joined by Judges Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee, Callahan, and Bea -- definitely didn't author what's essentially a fully completed petition for writ of certiorari. And Judge Willie Fletcher didn't essentially author the brief of the respondent in opposition thereto. Definitely didn't happen.

One more thing. Politics doesn't matter. The San Francisco ordinance here -- upheld by the panel -- is meant to ensure health care for individuals in low-wage jobs. It's totally random that the conservatives are the ones who dissent from the denial of rehearing en banc, and the liberals are the ones who don't. Yep. Random.

U.S. v. Hahn (9th Cir. - March 4, 2009)

I agree with the per curiam opinion here. Even if notice that the judge is considering X is required by the rule, and no such notice is given, that's not fatal if the parties fully brief the issues notwithstanding the absence of such notice.

I also agree with Chief Judge Kozinski's succinct concurrence. If the rule requires notice, but no notice is given, you don't sentence someone to a shorter sentence than you think is appropriate. Rather, you provide notice and grant a continuance. (I don't know if I'd use the term "must" as Alex does, since there may be exceptions to this rule, but I agree that this is the procedure that normally should be employed.)

Alanis-Alvarado v. Holder (9th Cir. - March 3, 2009)

It's always facially anomolous when you simultaneously read, as here, that (1) Judge X (on the panel) voted to grant the petition for rehearing en banc, and (2) that no one, including Judge X, asked for a vote on this same petition. In short, that Judge X wanted en banc review, and thought it appropriate, but didn't call for it.

This happens all the time: I'm not just picking on Judge Rawlinson. I know of no judge on the Ninth Circuit (though there may perhaps be some) who takes the position that an affirmative vote as a panel member on the petition for rehearing en banc intellectually compels a similar call for en banc review. Even though the two are exceptionally related. After all, if you vote to grant en banc review, why not actually cast that vote by calling for the review you've already said you think is warranted?

The answer, I think, is that en banc calls (as opposed to votes) are viewed as imbued with a practical limitation on the "ability" of the case to be taken en banc. Even if you think that the case should be taken en banc, a judge doesn't call for it if they don't think the votes are nearly there.

I mention this only because it's a strange -- though not outrageous (at all) -- practice. Generally, when we vote, we vote consistently. Sure, sometimes we may vote for Candidate X even though we prefer Candidate Y because we don't think Y would have the votes, and we prefer X to Z. Just remember that en banc votes aren't like that (ignore, for now, the related -- but different -- tactic of voting against en banc review even though you think it's meritorious because you believe that the ultimate vote on the merits would be unfavorable). If you call for en banc review and lose, there's no "Candidate Z": You merely lost the vote. It's like not voting for McCain in a two-person contest simply because you're convinced he'll never win. Something that we'd mock someone for doing (or saying). And yet we do that at the Ninth Circuit all the time.

So what we have here is, I believe, an administrative calculation by each of the judges that the cost of calling for an en banc vote isn't worth it if, in their estimation, the votes won't nearly be there to successfully take the case en banc. This isn't absurd as well; after all, the adoption of such a regime, if universally accepted, saves not only the time of other judges, but also your own, since now you don't have to respond to en banc calls of other judges, who similarly refrain from perceptionally unsuccessful en banc votes.

Still, it's somewhat surprising, I think, that the practice is (I believe) uniform. That, as far as I know, there's not a single judge who concludes -- perhaps merely on grounds of principle -- that if she's going to vote for en banc review at the panel stage, she's similarly going to call for en banc review thereafter. Since, after all, as to the merits, nothing's changed. And, alternately, that if she's not going to call for an en banc vote, she'll only vote to grant the petition for rehearing, not the petition for rehearing en banc.

I'm not saying that someone should adopt such a position, since I see the administrative upsides of a contrary "predict the votes" regime. I'm just surprised that someone hasn't; or, at a minimum, that the prevailing view is so uniformly adopted by the (often otherwise idiosyncratic) appellate judges.

Marmolejo-Campos v. Holder (9th Cir. - March 4, 2009)

I could write (literally) several dozen pages about this en banc decision today. Which might start with a critique of the manner in which Judge O'Scannlain unhelpfully begins his opinion, with a first paragraph that reads (in its entirety): "We are called upon to decide whether an alien may be removed from the United States for having been convicted of a crime involving moral turpitude as determined under federal immigration law." To which I might respond by noting that here's a difference between "framing the question in your favor," on the one hand, and "setting forth an alleged 'question presented' that's essentially tautological and doesn't shed light at all on what the case is actually about."

But even apart from the merits -- which I briefly discussed when the panel's opinion came out a year and a half ago, and which arguably involves (as Judge Berzon cogently asserts in the dissent to today's opinion) "the epitome of an unreasonable agency interpretation" -- I wanted to point out that, to me, the sharp 6-5 split demonstrates a couple of realities.

First, panel draws sometimes matter, even at the en banc stage. A different draw and this case comes out the other way. Second, sometimes -- albeit rarely -- the Ninth Circuit risks getting overturned by the Supreme Court not for being "too liberal," but for being too much in the other direction. This is one of those exceptional cases.

Finally -- and I've never, ever said this before -- I think this is a case in which there's a nonzero chance that someone might call, perhaps successfully, for review by the full circuit. You can look at the makeup of the votes individually to see why, but even if you merely use the roughest and most banal of "statistics," one can get a sense. On top of the 6-5 decision are four republican and two democratic appointees and on the bottom side there are four democratic appointees and one republican appointee. Particularly if one breaks out the three Carter appointees and adds that Judge Dorothy Nelson -- who was senior but on the panel -- gets to be in the draw if she'd like (I assume that's the rule with full en banc calls in addition to limited en banc panels), you get a bare majority vote to flip the case around.

Mind you, there are assuredly factors the other way, including the fact that many judges may not vote for full en banc review for administrative or historical reasons, and on the merits the fact that some of the more likely republican defectors who might agree with Judge Bybee (who was the republican dissenter) have already signed onto the topside of the 6-5 (e.g., Judges Kozsinki and Kleinfeld, who are fairly creative thinkers and aren't uniformly knee-jerk).

That said, if there was ever a case in which an en banc draw mattered, in which there's a chance of full en banc review, and in which the Supreme Court might perhaps slap the Ninth Circuit for being irrationally to the right, this is the one.

Moore v. King County Fire Protection Dist. (9th Cir. - March 4, 2009)

Here's something I haven't seen before.

The Ninth Circuit certifies a question to a state supreme court (here, Washington). Shortly thereafter, in a different case, the state supreme court answers the question. So the Ninth Circuit then withdraws the certification.

Makes sense. Just haven't seen it before.

But this got me thinking: Why did the panel certify the question in the first place? Initially I thought that the answer from the Washington Supreme Court might have been serendipitous, hence explaining what transpired. But nope. The Ninth Circuit certified in September 2008, and the state case that ultimately settled the issue was not only directly on point, but was already pending in the Washington Supreme Court at that time; indeed, state cases recognized even prior to September 2008 that this pending decision would anwer the question. Moreover, looking back at the original certification order, even the panel noted that the pending case in the Washington Supreme Court existed and would answer the question.

Which makes me wonder why the panel decided to certify the question rather than merely stay the appeal? Of course there's always a risk that something will happen in the underlying state case; a settlement, decision on other grounds (however unlikely), etc. But at the point at which the panel elected to certify the question, the oral argument in the pending state supreme court case was scheduled for less than 30 days hence. (Here's proof, since the Washington Supreme Court videotapes these arguments and puts 'em up on the web. How cool is that?)

In retrospect, at least, the panel should have waited, rather than certified. Especially since the Washington Supreme Court (like the California Supreme Court) issues its decisions fairly rapidly after oral argument; in this case, for example, within 90 days of oral argument. So the panel had its answer in January 2009, and a stay could have immediately been lifted at that point.

Parenthetically, it took a month and a half after the underlying decision, and only "after consultation with the Washington Supreme Court" (!), for the panel to withdraw the certified question and resume the appeal.

Did I catch this issue when I first read the certification order in September? No. Not in the slightest. So I'm clearly not blaming the panel for something that I too didn't fully grasp at the time. (Though in my defense, the panel might have known a lot more about the case than I did from merely reading the order.) I do think, however, that the general rule should be to stay -- rather than certify -- if there's a decent reason to believe that the question you'd otherwise certify will be resolved by the state supreme court anyway within, say, six months. No reason to go through the difficult (on all sides) certification process if a simple stay will do the job.

I'll call that "Professor Martin's Certification Rule No. 15". Stay tuned over the years for Rule Nos. 1-14 and 16-30. :-)

Doe v. Holy See (9th Cir. - March 3, 2009)

There are many interesting sovereign "nations" out there. Monaco. Andorra. Sealand. Hong Kong. They're even more interesting when you've got to deal with them on the same judicial procedural terms that you use with "regular" nations, since the underlying doctrines don't always make sense as applied to these special cases. (I'm thinking, for example, about the rules that used to say that there was no Article III jurisdiction over residents of Hong Kong during the British era because they weren't "citizens or subjects" of a foreign state.)

Among the interesting nations in this wide wide world of ours is the Vatican. Which is fascinating on a number of different levels. But, for present purposes, figuring out how the status of the Holy See interrelates with the complex sovereign immunity provisions of FSIA (particularly in the context of child sexual abuse allegations) is fascinating.

As this opinion by Judge Berzon (and concurrence by Judge Fernandez) amply reveals.

Tortu v. LVMPD (9th Cir. - March 3, 2009)

You've got to read this one. If only (1) if you've ever been in McCarran Airport (in Las Vegas) and/or (2) ever thought about trying to board a plane without a ticket. Let's just say: It did not turn out well for Mr. Tortu.

There's also a fascinating debate between the majority (Judge Hug) and the dissent (Judge Randy Smith) about the ability of the district court to grant a new trial on the ground that the verdict was against the weight of the evidence. Plus a warning -- significant in this case, and to which all the judges agree -- that you can't move for a post-trial judgment as a matter of law under Rule 50(b) if you haven't first made a similar motion at the close of the evidence under Rule 50(a). Oops. So for proceduralists like me, it's a gold mine.

But even if you could care not in the slightest about procedural complexities, you've got to read this one. Because never before have I read a case in which the central dispute revolved almost entirely around the following question: "If the police didn't unlawfully beat me, then how come my balls hurt so much?"

Check out the majority and the dissent on this point. It's an instant classic.

Sheehan v. San Francisco 49ers (Cal. Supreme Court - March 2, 2009)

Here's a sharply split 4-3 opinion by the California Supreme Court. Except for one thing. Each of the justices totally agrees. The only fight is about dicta: essentially, how much the Court wants to hint that the defendant might/should prevail on remand notwithstanding the fact that the Court is unanimously reversing the trial court's grant of a demurrer.

As for whether getting patted down by security guards at a football game violates your state right to privacy: Stay tuned.

Genethera v. Troy & Gould, PC (Cal. Ct. App. - Feb. 27, 2009)

I don't know what attorney was advising Genethera -- the plaintiff -- and told it that it'd be a good idea to file a lawsuit against a law firm (Troy & Gould) based upon a settlement offer the law firm made in an underlying civil action. But I can darn sure tell you that it wasn't, and wouldn't have been, me.

Settlement offers are privileged. When you file a lawsuit based upon 'em, you'll get SLAPPed. And not only will the California Court of Appeal assuredly affirm -- as indeed it does here -- but you'll lose even more money (both your own fees as well as the other sides costs and fees) for filing the appeal. Which, of course, is exactly what happens.

Sometimes the best counsel you can get from a lawyer is: "Look, what the other guys did was wrong, but let it go." And sometimes the best counsel you can receive from an appellate lawyer is: "Yes, you lost below, but it's time to move on." You may not like this advice. But it's better -- much better -- than the lawyer who tells you how unjust the lower court was and how much he's going to fight for you. Which may well be what you want to hear, and perhaps make you happy for a while, but trust me that this joy will be insubstantial compared to the feelings you'll have once you lose yet again.

Get a good lawyer. Listen to him or her. Two practical pieces of advice.

McCoy v. Progressive Ins. Co. (Cal. Ct. App. - Feb. 26, 2009)

Maybe the owner burned his own car up. Maybe he didn't, and it was indeed stolen as he claims.

When there's not every much evidence of the former, and you're the insurance company that insures the guy for theft, you'd better pay his claim. Otherwise you're going to be liable for, inter alia, punitive damages. As Progressive Insurance Company discovers -- to the tune of $100,000 -- here.

Nazari v. Ayrapetyan (Cal. Ct. App. - Feb. 26, 2009)

What partions of the following do you think come from a real case, and what parts come from an absurd law school hypothetical:

"On March 27, 2003, defendant invited plaintiff to his house for tea. In the backyard, defendant offered to pick an orange for plaintiff. Defendant stood on a stool to pick the fruit, but lost his balance while reaching too far and fell. Defendant landed on plaintiff, who was leaning over to serve himself tea. The force of defendant's 215 pounds pushed plaintiff's face into the tea service that defendant had placed on a rock. The fall pushed plaintiff's left eye and cheek into the cups and tray. Defendant acknowledged that he had lost his balance on the same stool a couple of times in the past. . . . After trial, the jury rendered a special verdict finding that defendant was negligent and that his negligence was a substantial factor in causing plaintiff's harm. The jury found plaintiff sustained a total of $75,802 in damages. . . . The jury also found that plaintiff was 30 percent negligent. After subtracting plaintiff's comparative negligence, the trial court awarded plaintiff $53,061.40. Plaintiff moved for a new trial. . . ."

Give up? It's all true. The oranges, the stool, the rock, the verdict, and even the 215 pounds.

People v. Hayes (Cal. Ct. App. - Feb. 25, 2009)

What does "sharp" mean? It's not just an epistomological, linguistic or abstract question. It matters. Like here.

The defendant here gets convicted of violating Section 4502(a) of Penal Code, which prohibits convicts from possessing a wide variety of things in the joint -- e.g., "a blackjack, slungshot, billy, sandclub,sandbag, or metal knuckles," etc. -- including "any dirk or dagger or sharp instrument." Defendant partially melted down a plastic CD case into something that was rounded but a bit pointy at the end. You could surely use a "pointy" thing as a means of hurting someone. But is it "sharp"?

I think that Justice Sims gets this one exactly right. Maybe the instrument here was sharp, or maybe it wasn't. But the instruction read to the jury here -- in a case in which the "sharpness" of the item was hotly disputed at trial -- merely said that "a sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession." Uh, no. That's not what a "sharp" instrument is. At all. That instruction would (as Justice Sims correctly notes) mean that even a blunt baseball bat was a "sharp instrument" under the statute. Which it ain't.

The error was compounded by the prosecutor, who said the following at closing argument: ""Now, this next [instruction] here is probably the critical definition in the case. A sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession. That tells you that is what a sharp instrument is. Let me just repeat that. A sharp instrument is an instrument that can be used to inflict injury, that's the first part, and that is not necessary for the inmate to have in his possession. That's the central definition in this case. That tells you what a sharp instrument is. If the evidence meets that definition, we've proved that there is a sharp instrument." Which accurately summarizees the instruction, of course. But also proves why we've got to reverse.

Which just goes to show that, sometimes, highlighting why you should win at the trial court level ain't such a great thing once the case goes up on appeal.

"That pointy thing is sharp." "You're looking sharp today." "You're quite a sharp character." Same word. Lots of (uncertain) meanings.

In short, linguistics ain't only for Noam Chomsky. We ordinary folk sometimes have to delve into it as well.

People v. Bunyard (Cal. Supreme Ct. - Feb. 23, 2009)

This is not the longest death penalty opinion by the California Supreme Court (by far), and tops out at only 33 double-spaced pages. But I can shorthand it for you even more concisely:

"Dude, you paid your drifter druggie friend to blow away your nine-months-pregnant wife with a shotgun so you wouldn't have to give her any money in a divorce and could successfully marry your mistress. That's not a sympathetic story. Sure, back in 1988, you got your death sentence reversed by the California Supremes because the court told the jury at your penalty phase that the Governor could commute a life sentence. But the state on remand, not surprisingly, gave it another shot, and you were again sentenced to death. And 2009 ain't 1988. This time we're unanimously affirming."

P.S. - This is not to say that Bunyard hasn't gotten something out of this whole process. He's already bought himself 30 years since the 1979 murder, and has probably got at least another decade or so more to go of state and federal habeas proceedings before he's realistically looking at execution of his sentence. At which point, you'll note, we'll be whacking a guy in his 60s or 70s for something for which he was convicted 40+ years ago. Plus, assuming good behavior, the guy who actually committed the murder may well be out by then, since he got 25 to life as part of his plea deal. None of which is something we should be especially proud of.

McKay v. Ingleson (9th Cir. - Feb. 23, 2009)

The Ninth Circuit has said it once, and they'll say it again (and again). You've got to pay your student loans. Even if you go bankrupt. And even if your creditor is the University itself, who (like Vanderbilt University here) gives you the loan essentially in the form of a credit card, and at an inflated, credit-card like interest rate.

You have to pay.

Soto-Olarte v. Holder (9th Cir. - Feb. 23, 2009)

Want to see how you "distinguish" (read: overrule) prior circuit holdings without an intervening Supreme Court decision? Here's how.

The panel here holds that the IJ didn't have a substantial basis for finding the petitioner to lack credibility. Fair enough. Now what?

Well, there are a couple of prior Ninth Circuit cases that fairly clearly state that in such an event, you remand with instructions to adjudicate the petition on the assumption that the petitioner is credible; for example, a 1994 case called Guo, which stated: "Where an appellate court has held
that an IJ’s or BIA’s adverse credibility finding is not supported by substantial evidence . . . the proper procedure is to remand the case to the BIA for further consideration and investigation in light of the ruling that the petitioner is credible.” Seems pretty straightforward, right?

But the panel here doesn't especially like that rule, and instead wants to remand to give the IJ a chance to come up with additional reasons (if any exist) to find the petitioner uncredible. So it holds (1) that the prior circuit cases really didn't state a "rule" -- even though it might totally seem like they did (see supra) -- so the panel is free to do what it wants, and (2) in a related manner, if those prior cases did attempt to articulate a rule, that would have conflicted with other Ninth Circuit cases. Hence, the panel here holds, it's free to do what it wants.

So if you're a panel, that's how you avoid adverse circuit precedent.

What's especially interesting about this one is that it's not the usual "conservatives-limiting-a-prior-liberal-holding" or vice-versa. To be sure, the prior circuit precedent is what might be (bluntly) called a "liberal" holding. But the panel here hardly consists of right-wingers, and consists of Judges Willie Fletcher and Gould -- both Clinton appointees -- as well as Judge Noonan (who's a Reagan appointee, but who isn't uniformly conservative in immigration cases). So it's an interesting makeup.

Plus, the two prior opinions that Judge Gould has to "distinguish" are a case called He and a case called Guo. Though Judge Gould doesn't mention it, guess who not only authored the former but was on the panel in the latter? None other than Judge Willie Fletcher, who's on the panel here!

Which might, of course, lead one to believe that of course the cases have to be distinguishable, since he voted to do one thing then and another thing now. Or may alternately demonstrate that judges don't invariably realize the full ramifications of an opinion which they author or to which they sign on.

It'll be interesting to see what happens to this one. The ultimate holding of the panel isn't at all irrational (though a contrary rule is plausible as well). The big problem is circuit precedent. But for the composition of the panel, you might have a huge en banc call. But given the composition of the panel, and the knowledge that you've presumably already lost Judge Gould and Fletcher on the call (as well as, if they're drawn, both them and Judge Noonan on the ultimate result), the probability of a successful en banc vote here -- even if there is a conflict in circuit precedent -- is lower than it would ordinarily be.

Stay tuned. And even if nothing happens, it's still an informative -- and significant -- case.

Video Software Dealers Ass'n v. Schwarzenegger (9th Cir. - Feb. 20, 2009)

Seventeen-year old lovers of violent video games such as Grand Theft Auto: Vice City and Death Nukem 3D can rest easy. You've got a constitutional right to purchase and play such games, notwithstanding the resulting (alleged) impact on your personality. So holds the Ninth Circuit today.

This case is a perfect example, by the way, of the fact that the panel draw doesn't always matter, even in high-profile cases. The opinion is written by Judge Callahan, and joined by Chief Judge Kozinski and Judge Thomas. One might think that a eclectic panel consisting of a Reagan, Clinton, and Bush II appointee might disagree a lot. But the opinion is unanimous, and is about as big of a win for the plaintiffs as one could imagine.

So shoot 'em up, my young friends.

Christler v. Express Messenger Systems (Cal. Ct. App. - Feb. 11, 2009)

Contrary to the perception of some, not every class action settles. They don't always prevail at trial either. Here's an example.

P.S. - Want to know how those blue and yellow "California Overnight" boxes get picked up? Check out the opinion for that as well. Since the case involves that company.

Calemine v. Samuelson (Cal. Ct. App. - Feb. 17, 2009)

Just some practical advice for the day. When you're selling a home, and there's been a lawsuit about alleged damage to the home, don't just disclose the damage. Also disclose the lawsuit. Or potentially face another lawsuit yourself.

People v. Murillo (Cal. Ct. App. - Feb. 18, 2009)

Here are some teasers to try to persuade you to read this case:

(1) It's about a 21 year old woman having sex with a 16 year old boy, a relationship that started a year previously. So it's, in a word, titillating.

(2) The woman seems sincerely remorseful. At least at this point.

(3) Perhaps not surprisingly, the woman has "issues". Take, for example, the following: "Defendant admitted having an extensive history of substance abuse that began at age 12 with daily use of alcohol and marijuana. At age 14, she was using methamphetamines and LSD daily, and her use continued until recently. At age 15, she started using PCP and ecstasy. She stopped using ecstasy after an overdose. At age 19, she started using cocaine, and at age 20, she experimented with mushrooms. She reported that marijuana is her drug of choice, and she considers herself to be an alcoholic. Defendant further explained that as a juvenile, 'she used to injure herself by cutting on her arms, the last occurrence when she was 17-years-old.'" Yikes.

(4) Justice Rushing's opinion largely concerns a probation condition in which the defendant was ordered to take any prescriptions ordered by her doctor. And Justice Rushing does a great job explaining why this condition is overbroad. It's a nuanced and balanced opinion that really takes the time to explain things and to make sure to do the right thing.

So I recommend the opinion. A fine way to get over the shortened mid-week hump.

P.S. - Just so you know I actually read this stuff. Page 11, first paragraph: "On its face, the language of the requirement is clear an unambiguous." Let's add a "d" after the "an".

David A. Karton, A Law Corporation v. Dougherty (Cal. Ct. App. - Feb. 17, 2009)

Here's a case that reminded me of the old saying: "Pigs get fat. Hogs get slaughtered."

It's a case involving a default judgment against a client who owed an attorney -- David Karton (a Beverly Hills divorce lawyer) -- around $65,000 in unpaid fees and costs. And even though Karlton was able to recover around $56,000 within several months of obtaining a default judgment, over the years, Karlton was able to successfully increase that judgment to over $1.3 million through repeated cost and fee awards associated with collecting the original amount.

All, at least, until Justice Rothschild steps in. And takes it all away. All of it. Moreover, at the end, awarding costs to the client.

There are obviously two sides to every story. Just remember the part about the pigs and the hogs next time you're thinking that you're kicking legal butt.

Affiliated FM Ins. v. LTK Consulting (9th Cir. - Feb. 17, 2009)

It's the Tuesday after a long weekend. What better day to sluff off some work?! Or, to use the lingo we employ in the federal judiciary, to certify questions to the state supreme courts.

Truthfully, I'm often in favor of certification. Still, I thought that the timing of the orders was worth at least a tiny (good-natured) jab. The Ninth Circuit certifies two questions today. The first, in this published order, sends a case to the Washington Supreme Court. The second, in this published order, not only sends another to the California Supreme Court, but also withdraws the earlier published opinion on the merits (e.g., that avoids a potential en banc call).

We'll see what the Washington and California courts say. But I'll make a bet with you. My guess is that we'll get a substantive answer from the former a lot sooner than we will from the latter.

Winterrowd v. American General Annuity Ins. Co. (9th Cir. - Feb. 17, 2009)

Ever litigate a case in a federal district court outside your state? Lots of us have. Ever consult and/or help another lawyer in one of those cases? Not so rare anymore. Judge Milan Smith has a fairly good quote in this regard that's both accurate and worth repeating: "Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an 'age of increased specialization and high mobility of the bar.' Spanos v. Skouras, 364 F.2d 161, 170 (2d Cir. 1966). But in 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no emails, and the only person who had a two-way wrist radio was cartoon character Dick Tracy."

Why does this matter? Because there's a big fight about whether lawyers who practice outside of their jurisdiction -- perhaps in the background -- without being admitted pro hac vice are engaged in the illegal practice of law. So here, the question is whether an Oregon attorney who assists a California lawyer in an ERISA action in the Central District of California can be awarded atttorney's fees even though he's not a California lawyer.

As you might gather from the rhetoric employed by Judge Smith (which includes the line "Current law does not compel us to be judicial Luddites"), the majority opinion here holds that the Oregon lawyer can, in fact, recover fees. A holding by the Ninth Circuit that's bound to be near and dear to many lawyers (and I'll forthrightly concede my self-interest on this point) who similarly assist other lawyers in out-of-district litigation.

Judge Rymer, however, dissents. And makes some darn good points, not the least of which being how easy it is to be admitted pro hac vice and hence surely entitled to fees (as well as subject to discipline). Given that reality, she argues, why let someone lurk in the background? Why not make 'em be forthrightly admitted? Judge Smith doesn't disagree with the ease of pro hac admission (indeed, uses this point affirmatively in his analysis), but does not agree that this is a necessary prerequisite to recovery of fees. Hence the fight.

I think that the realities of modern litigation, as well as efficiency, augur in favor of Judge Smith's position. There are a variety of legitimate reasons why in-state attorneys might want to obtain the benefits of outside counsel without getting their contributors formally admitted pro hac vice, and I think that the federal system is flexible enough to permit such a result. We could surely discourage such a practice by refusing fees or making it illegal, but I don't think the upside is worth it. Nor do I think that the federal system is bound to state law on this point, particularly when (as here) the underlying matter concerns a federal issue. Federal courts are able to apply their own procedural rules, and this seems one of them notwithstanding the fact that it involves the substantive entitlement to fees.

The federal system is often more flexible and modern than state systems. This is especially the case in areas, such as those here, in which parochial concerns (e.g., a desire to advance the use of purely local in-state counsel) often motivate the state response to an issue. So I think it's helpful to do what Judge Smith does here. It makes for better representation. And that's always a good idea.

U.S. v. Autery (9th Cir. - Feb. 13, 2009)

With all the relevant holidays, it's been fairly slow lately in the appellate world. Nonetheless, here's something to think about as the new week begins.

You're on the district court. You've got a person before you who's guilty of possessing child pornography. He's a former law enforcement officer. He's got no real criminal history. He seems different (to you) than the other child porn criminals you've seen.

The guidelines call for around four years in prison. What sentence do you pronounce?

Judge Jones (up in Oregon) gives the defendant five years of supervised probation, with tough conditions and a warning that if he violates 'em, he'll get the maximum. Judge Milan Smith, joined by Judge Thompson, affirms, holding that this sentence is permissible. Judge Tashima dissents, holding that it's not nearly enough and hence constitutes an abuse of discretion.

Whatcha think? Child porn? Four years? No prison time? Who's right?

Musladin v. Lamarque (9th Cir. - Feb. 12, 2009)

Let me put today's 35-page (single-spaced) opinion from the Ninth Circuit a slightly different way than Judge Berzon does:

"We previously granted relief to this habeas petitioner because some spectators at his trial had worn prominent inflammatory buttons. But the Supreme Court took the case up and although we had some marginal degree of support in some of the concurring opinions, none of the justices went our way. So if we can't get a single vote in the Supreme Court on what we thought was petitioner's strongest claims, we aren't going to be able to do much for you on your subsidiary claims either. Sorry. It's not for a lack of trying. The district court's denial of your habeas opinion is affirmed."

POSTSCRIPT - I wish I could say more today, but with only one actual opinion from the Ninth Circuit and with the state courts closed for Lincoln's Birthday, that'll do it. Hopefully everyone's merely bulking up for Friday. For anyone who still has a job, anyway, after today's law firm carnage.

Citizen of Humanity v. Costco (Cal. Ct. App. - Feb. 11, 2009)

Here's an example of an appellate court that has a great deal of common sense and, for this reason, the ability to peer through facially reasonable b***s**t to see what's really going on. And yet, simultaneously, both able and willing to follow the law and let a cognizable claim go forward even when it's a stalking horse for something different. Confident -- and hopefully accurately so -- that the trial court will do the right thing.

The case involves high-end Citizens of Humanity jeans. (If you want to see what they look like -- plus a whole lot of belly buttons -- here you go.) They're jeans that sell retail for $200 or so, so you can imagine how the manufacturer felt when it discovered that they were being sold in Costco. For a whole lot less.

So they did what any good company in America would do; they promptly sued. Alleging in part a fraud claim (which Justice Croskey rightly rejects) that Costco must have gotten the jeans, as I'm sure they did, from one or more third party retailers who purchased the products from plaintiff and then resold them to Costco. A third-party route that was necessary, no doubt, because no way would plaintiff sell its fancy pants to Costco directly. Plaintiff contends this was fraud because it was allegedly in violation of an implicit agreement that the retailer would only sell the jeans in their own stores. Nope. Not true. Plaintiff's just trying to get around the (beneficial) rule that manufacturers can't control downstream sales. Sorry. No dice.

Plaintiff also alleges that Costco must have gotten the jeans "off the back of a truck" -- i.e., that Costco is selling stolen property. Does plaintiff in fact believe this allegation? No. Not at all. At least in my view, no objective person would view the evidence and come to such a conclusion. But then why make the allegation if you can't prove it at trial (or on summary judgment)? Because, my good friends, that way you can get discovery from Costco about who the actual suppliers are. And then promptly retaliate against them (e.g., by cutting them off from future sales).

Justice Croskey sees all this, and does a wonderful job explaining what is likely going on here. In a way that's far more tactful than I've put it, but I think we see eye-to-eye on this one. The trial court probably saw it the same way too, and granted Costco's demurrer on that basis. But Justice Croskey, to his credit, reverses on this point. Holding that the plaintiff has, in fact, properly alleged a cause of action. At the pleading stage, anyway. What happens later is another story. But, for now, the lawsuit should continue.

I think that's right. But I also think that the trial court (1) should make sure to limit any discovery so that any untoward objectives of the plaintiff are not realized; i.e., by permitting inspection of the discovery only by a neutral special master, or by entering an order that any retaliation by plaintiff would constitute contempt of court; and (2) seriously consider sanctions if faced with a proper 128.7 motion, if in fact it turns out that (as I strongly suspect) no way was Costco actually buying huge volumes of stolen property. I think that either or both of these approaches would do justice while simultaneously following the law.

Of course, maybe I'm wrong. Maybe the plaintiff is correct that Costco is a huge front for stolen property. Sort of like a brick-and-mortars version of ebay. And that Costco's attorneys are aware of this fact but are simply hiding their client's actual conduct behind a smoke screen of alleged privilege.

Maybe. But I strongly doubt it.

Cotton v. Expo Power Systems (Cal. Ct. App. - Feb. 9, 2008)

Want to see a case where both sides might as well flush money down the toilet for all it accomplishes?

Here you go.

U.S. v. Cruz (9th Cir. - Feb. 10, 2009)

I like how Judge Reinhardt begins this one: "At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not 'an Indian.'" Because he's right that I wouldn't ordinarily have thought that criminal liability turns upon this issue. But, yep, it still matters. Here, dispositively. Since Judge Reinhardt reverses the defendant's conviction on the ground that he's not an Indian.

So it's an interesting case from that perspective. Plus it's even more fun since Chief Judge Kozinski writes a whithering dissent. Some selected quotes to give you the tenor: "Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes trying to explain why the district court erred at all, the majority concludes in a single opaque sentence that the error is 'plain.' Just how plain can this error be when the majority has to struggle so long and hard to find any error at all?" Wait a minute. Huffing and puffing?! Hefty and chubby? Are you calling me fat?!

Or the concluding paragraph: "The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction." Sweet.

With anyone else, one might conclude from this exchange that there's a ton of bitterness betweeen these two. But come on. It's Alex and Steve. They're peas in a pod, even when they disagree. More importantly, both of 'em have more than enough self-confidence and thick skin to take it as well as they dish it out. So where others might see merely vitriol, I see two chambers smiling at the slams they've hurled towards the other.

Jamgotchian v. Slender (Cal. Ct. App. - Feb. 9, 2009)

My wife and I used to live very close to the Del Mar race track, which we saw during our daily walk around the neighborhood. Notwithstanding that fact, I've never actually been there, and my proximity to the track didn't give me much information about the logistics of horse racing, including all of the details regarding what horse races when.

But thanks to Justice Kriegler, I know a lot more now than I did back then.

It's a fascinating case, and involves a horse that was (allegedly) forced to race when the owner was adamantly opposed to the horse racing and repeatedly tried to scratch him. What's the relationship between the trainer and an owner? How do tracks put together races? What are the formal and informal deadlines for scratching a horse from a race? Justice Kriegler explains all this and more.

So if you're interested in knowing how yet another tiny piece of our complicated world works, here's another good one for you. Read and learn.

Dawson v. Marshall (9th Cir. - Feb. 9, 2009)

In 2005, when he's a magistrate judge, Judge Larson reviews Dawson's habeas petition and recommends its denial. Dawson then objects and seeks review (as is his right) by an Article III district court judge. In 2006, who in the Central District is assigned to review the objections to Judge Larson's recommendation? Yes, Virginia. None other than Judge Larson, who's now been elevated to the district court. Who, shockingly, agrees with his own recommendation.

Judge O'Scannlain says that's not reversible error. I understand his reasoning, but don't think I'm persuaded. Sure, Dawson got an Article III judge to take a look and make findings. But it seems to me there's an implicit temporal element there that's not satisfied here.

Imagine, for example, that after Dawson filed his objections, the Clerk for the Central District said "You already had someone who's now an Article III judge look at this. Denied." Surely that would be reversible error, right? You're entitled to have someone look at it who's an Article III judge at the time, it seems to me. To take another (I hope) uncontroversial example, if Judge Larson had been elevated to the Ninth Circuit or Supreme Court, surely it wouldn't be okay to have Judge Larson merely say "Yes, I agree with what I said as a magistrate judge" and thereby satisfy the requirement of Article III review. Even though, yes, he was an Article III judge at the time of the review.

If I'm correct about those two examples, then it seems to me that the same may well be true here. Sure, Judge Larson arguably "re-reviewed" his own findings as a magistrate judge. But even if reviewing your own findings technically satisfies the requirement of de novo review in some formalist doctrinal sense (i.e., "I didn't give my prior factual findings any deference"), it hardly accomplishes what we're looking for here, which is review by a qualified Article III judge who lacks investment in the findings.

Surely it wouldn't be okay if Judge Larson had, say, written a brief opposing Dawson's habeas petition while he was a private lawyer and then adjudicated the habeas petition himself once he was appointed to the district court, right? Even if Judge Larson had written (as here) a final report that was somewhat different in form than what he had previously authored, we wouldn't find that permissible. Ditto if Judge Larson's decision was reviewed by the Ninth Circuit and the panel included Judge Larson, either sitting by designation or after being elevated. No good, even though you Dawson would technically have gotten a fully qualified Article III appellate judge.

So I think that Judge O'Scannlain views this problem too narrowly. It seems to me that there's more at stake here than simply formal review by somewhat who now has Article III capacity.

Separately, even if I'm wrong, I think that Judge O'Scannlain is far too tentative when he says that "in our supervisory capacity over the district courts of this Circuit, we suggest that district courts avoid assigning new district judges to cases they handled as magistrates." I appreciate (and obviously agree) with that sentiment, but why merely "suggest" it?! At a bare minimum, I'd change the word "suggest" to "direct." The district judge and the magistrate being reviewed should not be the same person. Period.

Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd (9th Cir. - Feb. 4, 2009)

A train derails in Tyrone, Oklahoma, resulting in alleged damage to the cargo. What law applies to any dispute (including the relevant choice of forum) arising therefrom?

Let's see. Train. Derailed. Oklahoma. Hmmm. Let's make an educated guess. . . .

Wrong. Not even close.

The correct answer: Admiralty law.

What?!

Now, admittedly, I could have given a couple more relevant facts to hint at the right answer, at least in this particular case. But regardless of the facts, if you've have told me that there was a train wreck in Oklahoma and asked me to guess what law applied, the word "admiralty" would have come out of my mouth, I imagine, on the ten thousanth or so guess.

So cool. You learn something new every day.

Dixon v. Superior Court (Cal. Ct. App. - Feb. 4, 2009)

There was something that just didn't look right about this case. I was surprised, for example, that a "reporter" filed a California Public Records Act case seeking autopsy results and yet prosecuted the petition pro per. Not something you usually see. Plus, I noticed that the petitioner was granted in forma pauperis status. Sure, real reporters don't make a ton, but IFP? Seems like you could at least afford the filing fee (if you told the truth, anyway).

So I did a little digging. Then it all made sense.

You wouldn't get this from reading the opinion, but it turns out that the petitioner, Kathryn Dixon, is a former attorney. I say former because she's been disbarred. And the "book" that she's allegedly planning to write will probably look a little like this.

So I don't think the world's missing much as a result of Justice Davis' ruling that she doesn't get a looksie.

P.S. - I didn't realize it when I originally wrote this, but apparently this is not Ms. Dixon's first foray into the litigation world. Or even the California Appellate Report. This is what I wrote about Ms. Dixon's work as an attorney a couple of years ago. Boy, I was really mean back in the old days.

In Ms. Dixon's defense, I thought the current petition was actually plausible. I nonetheless somehow got a "vibe" from the thing that just didn't feel right. Guess now I know why.

U.S. v. Al Nasser (9th Cir. - Feb. 4, 2009)

Judge Kleinfeld writes an incredibly sophisticated opinion here. Better than I would have thought possible, and certainly better than I could have written. It has much to recommend it. (Plus, I liked the forthrightness of the first footnote, which reads: "Judge Ferguson dissented in our earlier decision in this case . . . . After Judge Ferguson’s death, Judge N.R. Smith was drawn to replace him. Serious questions raised by the petition for rehearing, Judge Ferguson’s dissent, and our colleagues within the court persuaded us to withdraw our earlier opinion and replace it with this amended opinion.")

But let me bottom line the opinion for you. Which has the following result.

I'm walking down the street. Two armed police officers suddenly appear six feet in front of me, draw their weapons, point them directly at my face, and scream: "Shaun Patrick Martin: This is the police! Get the f*** on your knees!!" I'm stunned, since I've done utterly nothing. A half second later, they scream: "Do it now, Martin, or we'll blow your freaking face off!" I'm convinced I'm about to be executed, and drop to my knees in the face of this overpowering government authority.

That's not a Fourth Amendment seizure, apparently. I've not been detained at all. Because, unknown to me, there was another "Shaun Patrick Martin" three feet behind me. And that's who the police were screaming at. So I was never "seized" even though I fell to my knees in the face of what any reasonable observer in my shoes would undeniably perceive to be a governmental detention.

Thought you should know.

Ramirez-Altamirano v. Mukasey (9th Cir. - Feb. 4, 2009)

Far be it from me to make more of things than is due. But is there something going on here that I should know about?

Last week, Judges Wardlaw and Ikuta got into a huge bench slap, something about which I commented here. Don't get me wrong; I like a spirited and vigorous debate, especially among able judges (as are both here) who are convinced that they're right and the other side's wrong. No problem. Bring it on. That Judge Ikuta writes a dissent and Judge Wardlaw the (underlying) majority opinion is far from earth-shattering, regardless of the strong rhetoric on both sides.

But then, today, I read this opinion. Again authored by Judge Wardlaw. Again with a dissent by Judge Ikuta. And while the language on both sides is a fair piece milder than the exchange last week (from Judge Wardlaw here: "The dissent’s reliance on Ramirez-Castro is both misplaced and misleading" and "The dissent’s cramped reading of these cases is unpersuasive"), it still got me to thinking whether there these two former O'Melveny colleagues were, say, less than generally persuaded by the other.

So I went back and looked up some of the opinions decided by this same panel on the same week as this one; i.e., when Judge Fogel sat by designation with Judges Wardlaw and Ikuta in Pasadena in the first week of May 2008. A task, I might add, made much more time-consuming by the fact that (1) the transition to the Ninth Circuit's new web site seems to have deleted all the historical calendars, and (2) the "advanced search" feature on the oral argument screen works as well as a rusted '26 Ford.

What does one find? Well, for one thing, the panel has already issued at least two opinions from immigration cases that were argued on the same day (May 5, 2008) and to the same panel (Judges Wardlaw, Ikuta, and Fogel) as the present immigration case. What transpired, you ask? Well, here, of course, Judge Wardlaw was in the majority -- which issued an opinion favorable to the alien -- and Judge Ikuta dissented.

What about the other two cases? In the first, Felix-Corona v. Mukasey, Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented. Deja vu. And in the second (Ky Lay Luong v. Mukasey), guess what? Judge Wardlaw was in the majority, which issued an opinion favorable to the alien , and Judge Ikuta dissented.

Boy, I bet the conference after the oral arguments on May 5, 2008 was a lot of fun.

I'm not going to even mention what transpired in the immigration case before the same panel two days later (Leppind v. Mukasey). Okay, I will. Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented.

I could go on. But this post is already long enough. Let's just say that it's always a good time in the Ninth.

People v. Bayah (Cal. Ct. App. - Feb. 3, 2009)

It's remained a slow day, with only a couple of opinions from the Court of Appeal. But this opinion allows us to at least play one of our favorite games (and a reminder of law school exams): Fill in the blank.

How do you think this one comes out: "Two versions of the facts were presented at trial: one told by the deputies who arrested defendant, and the other told by defendant. We begin with the version told by the deputies, which was, for the most part, ______ed by the jury."

Accepted? Rejected? You make the call.

Can I also just make one more practical comment, for any of the more criminally-minded readers out there. When you're driving your Honda Accord in Compton -- at the corner of Atlantic and Compton, no less -- and you've got (1) a lot of cash on you, (2) a fair amount of cocaine in your pocket, and (3) 29 packages of cocaine base in your car, you might want to make really darn sure that your taillights are working.

I know it seems a bit picayune for a bigtime crack dealer such as yourself to worry about taillights. But there's this little thing called probable cause. And, shockingly, the police are marginally aware of it. So when they see you with a "busted taillight", sometimes they like to pull you over. Even if -- and this may stun you -- they are not all that desperately concerned about the welfare of your taillight. And are instead using it as a pretext to stop, question, and search you.

Just a little friendly reminder. A little prevention can go a long away. And save you, say, eight years in the pokey.

San Diego Unified School Dist. v. County of San Diego (Cal. Ct. App. - Jan. 20, 2009)

It's a lazy Tuesday thus far. No published opinions by the Ninth Circuit or California Supreme Court today, and none yet by the California Court of Appeal. We'll see what the afternoon brings.

Meanwhile, for something a little different, check out a county school district suing its own county. It happens right here in San Diego.

Toxic waste makes not only strange bedfellows, but also unusual enemies.

Tin Tin Corp. v. Pacific Rim Park (Cal. Ct. App. - Feb. 2, 2009)

I imagine that sometimes the California Court of Appeal might want to say: "This case is complicated but really doesn't involve that much money at all. Can't the taxpayers just pay you to go away?"

As in this one.

It involves the interpretation of a dozen complicated commercial lease agreements, and involves claims and counterclaims by all the parties. The trial court found against everyone, and then everyone appeals.

Justice Elia holds that the trial court was largely correct, but also concludes that the plaintiffs were correct on their argument that the landlord shouldn't have been charging them for a total of $32,153.92 in LLC fees that the landlord paid the Franchise Tax Board between 2001 and 2006. So plaintiffs get their $32,000 or so. In return for which everyone pays their lawyers much, much more than this, and the judiciary spents a healthy fraction of this amount on both the trial and appellate resolutions.

But at least we get a published opinion out of it that tells us how to read the particular leases at issue in this case. Which is nice.

Insyst v. Applied Materials (Cal. Ct. App. - Jan. 30, 2009)

Electronic service (e.g., e-mail) may perhaps be good for some things. And if there's an attachment, that may perhaps be a close call, and sometimes work.

But merely providing a link doesn't constitute proper service. At least under the existing statutes. (Which, I might add, still need to be updated to reflect the realities of the modern world.)

That's Justice Rushing's call.