Belmontes v. Ayers (9th Cir. - Dec. 30, 2008)

You should read this one if only to read the concurrence of Judge Reinhardt (joined by Judge Paez) from the denial of the petition for rehearing en banc. Basically, Judge Callahan dissents from the denial in this death penalty case, and begins her dissent by noting that the underlying opinion was the third time the panel in the case had reversed the death sentence. Judges Reinhardt and Paez -- who were the majority of the panel -- do not like the implication. And respond in a classic (and exceptionally well-written) Judge Reinhardt fashion.

You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.

I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.

Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), and Idaho (N.R. Smith) joined the dissent. Add to that a judge from Oregon (O'Scannlain), a judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.

Think about that the next time people talk about splitting the circuit.

People v. Bradford (Cal. Ct. App. - Dec. 29, 2008)

People admittedly watch a lot of television. Including -- and increasingly -- cop shows. So there's no doubt that many suspects already know their Miranda rights if only as a cultural reference point.

Nonetheless, Miranda warnings are not designed to be a game show. Instead of simply reading the rights off the card (for from memory) -- a simple enough task -- the police here instead basically asked the suspect (often rhetorically) which rights he already knew about from television shows. Which I guess is fine (?), so long as he names all four of the relevant warnings. But, like some game shows, if you miss one of the answers, there's no proper Miranda warning, and thus a reversal of any resulting convicion. Which is exactly what happens here.

Let's not get to tricky in the future, okay? Just read 'em their rights. It's really not all that difficult.

People v. Olguin (Cal. Supreme Ct. - Dec. 29, 2008)

Anyone get a pet over the holidays? If so, make sure to tell your probation officer. Because the California Supreme Court holds that it's a permissible condition of probation for a DUI offense (!) to impose a continuing obligation to tell your probation officer of any pets you might have. That condition is "reasonably related to continuing criminality."

Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.

Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.

But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).

Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.

For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.

And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.

So let's all agree to at least take away fish and guinea pigs, shall we?

People v. Roscoe (Cal. Ct. App. - Dec. 26, 2008)

The day after Christmas. A time for family. For shopping. For rest. And for thinking about hopping on that treadmill. Surely not a day for issuing public opinions, right?

That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right. The Ninth Circuit's web site doesn't even contain its usual "No Opinions Filed Today" notation for the 26th. We see instead only something posted yesterday, December 25th (!), that says something different: "None Filed Today." Perhaps posted remotely. After a little too much eggnog.

But, like rust, the California Court of Appeal never sleeps. And dutifully published a single opinion this morning. It's a decision that affirms a multi-million dollar civil penalty against corporate officials under the responsible corporate officer doctrine. And that reminds me never to own a gas station. Ever.

Hope you had a good Christmas, John F. & Ned F. Roscoe. 'Cause the day after sucked for you. You may have hired some fancy lawyers (including Gibson Dunn) to try to help. But to no avail.

Here's hoping that 2009 is better than 2008 for you. And that you saved the receipts from the presents. Since you may well need the cash.

McGuire v. United States (9th Cir. - Dec. 24, 2008)

Show me the money.

Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action.

Unfortunately for this particular Jerry McGuire, litigating against the government is even more complicated than negotiating with the Arizona Cardinals. Yes, he initially won in the bankruptcy court. But the district court reversed, holding that his claims weren't ripe. And while the Ninth Circuit disagreed with that point, McGuire's win was only temporary, as the next section of the opinion held that his action was only cognizable in the Court of Claims. So remanded and transferred ye shall be.

So it's a mixed bag for our Jerry. Does he get his seven figures? Nope. Does his loss get affirmed? No, not that either. It's a remand for you, my friend. Enjoy the next season of litigation.

In Re H.E. (Cal. Ct. App. - Dec. 23, 2008)

In the spirit of the holidays, be thankful that the mother of your children is not like the mother here.

I only know what I read, of course. But I get far from a positive vibe about her. Far.

Salazar-Luviano v. Mukasey (9th Cir. - Dec. 23, 2008)

Let's read the first paragraph in the fact section of the opinion and see where we think this one is going. You can basically tell not only what the case is probably about, but also where the panel is likely headed. Here goes:

"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren."

Hmmm. Let's see. An immigration case, right? Yep. The U.S. is trying to deport him, correct? Yep. What equities did the court just introduce us to? He's elderly. He's been here a long time. He's been married for over thirty years. He's got lots of U.S. citizen children and grandchildren. I bet they're saying all this just so we feel really good when the court holds that we're forcing the guy out of the country, right?

Oh, wait. One more hint about how it comes out. It's two days before Christmas.

Yeah. This one's not too tough.

Patel v. Liebermensch (Cal. Supreme Ct. - Dec. 22, 2008)

Back in August 2007, the Court of Appeal down here in San Diego issued an opinion in a fact-specific contract case written by Justice Huffman over the very strong dissent of Justice McIntyre. The question was basically whether this particular contract was specific enough to enforce, with the majority thinking it wasn't and the dissent thinking it was.

Later that same day, I mentioned both the massive USD Law School connections of the participants, as well as the fact that I agreed with Justice McIntyre's dissent. Though noted that my opinion "with $3.50, will get you a cup of coffee at Starbucks."

But while my opinion may not matter much, the California Supreme Court's does. And, today, it unanimously agreed with Justice McIntyre (and me). In nine-page (double-spaced) opinion remarkable for its brevity. As if to say "Sorry, Justice Huffman, but this one's pretty easy. Those other guys got it right."

Somes, in extreme cases, the California Supreme Court will indeed get in the error-correcting business. This is one of those cases, IMHO. And I'd have done the same.

Carver v. Lehman (9th Cir. - Dec. 22, 2008)

Yes, I know that it's the holiday season. So, yes, you're busy. We all are. Nonetheless, you've got to read this one. It's an instant classic.

The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.

Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.

I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)

Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.

Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.

I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."

From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)

Great stuff. Simply wonderful. Read the whole thing and see what you think.

My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.

I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.

Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.

I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.

But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.

Anyway, a great -- and interesting -- debate. Check it out.

In Re R.C. (Cal. Ct. App. - Dec. 19, 2008)

Sometimes parental termination cases are difficult to even read (at least for me), as you're left with the firm -- and utterly depressing -- conclusion that none of the participants even have a whiff of a shot , and that the child both never had and currently has almost no shot whatsoever at a reasonable existence. And you don't know what to do betweenthe two available alternatives, both of which are terrible: leaving the child in a horrible foster care situation or giving the child back to an unstable and potentially harmful parent

Not here.

This is one of those cases where I have little doubt that Justice Irion (as well as Judge Isackson, down here in San Diego) got it exactly right. It's not that the mother here is horrible; I've seen far, far worse. But the child has a real shot here. It couldn't be clearer that his best interests are to be adopted, and he totally can be. He's a bright, cute, healthy, and completely lovable 11-month old child. He should stay where he is.

A ray of sunshine on a cold(ish) but beautiful Friday morning.

Van Horn v. Watson (Cal. Supreme Ct. - Dec. 18, 2008)

See someone stuck in a car crash and worried that the car might catch fire or explode? Don't pull 'em out. Or at least don't pull 'em out if you don't want to potentially get sued. 'Cause you can be.

I'm not saying that the 4-3 decision here is right or wrong. It's a statutory interpretation matter, and there are reasonable arguments on both sides.

I'm just telling you what the law is. There's no immunity, at least in California, for pulling someone out of a burning car. Giving 'em CPR? Yep. Immunity. Ditto for giving trying your hand at a tracheotomy with some scissors and a bic pen.

But trying to save someone's life in a different ("non-medical") way? Nope. No immunity. Not now, anyway.

People v. Mentch (Cal. Supreme Ct. - Dec. 17, 2008)

This may be surprising for those who know me as a relentless cynic, but I'm affirmatively proud -- yes, proud -- that I reside in California. There's a part of me that identifies with this Great State. I like it. I want to make it better. And I'm happy, and proud, when it does something good. (The flip side, of course, is that it makes me extraordinarily sad when it does something bad, but that's another story.)

Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion sua sponte in the way it did. Bravo.

A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. Not good enough, the Court said. Which made sense.

But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care before you start providing the pot. I thought that this part of the opinion was wrong, and explained why a couple of hours after the opinion came out. As I'm wont to do.

Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.

So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also sua sponte amends the opinion to add the following footnote: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."

Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.

I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.

So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.

People v. Yarbrough (Cal. Ct. App. - Dec. 17, 2008)

Sorry, my gun-loving friends. There's no right to carry a concealed weapon under Heller. At least in California.

This is not a surprise for anyone familiar with the Supreme Court's holding. The right to possess a gun in one's home for self-defense is a bit different from the right to possess a concealed weapon in public. But this is the first post-Heller appellate case in the California Court of Appeal to so hold. So I thought it was worth at least brief mention.

So, if you've got 'em, keep those weapons at home. Or out in the open.

Aguilera-Montero v. Mukasey (9th Cir. - Dec. 1, 2008)

You've been granted a full and unconditional pardon for your possession offense. But we're still going to deport you based upon that conviction.

Sarei v. Rio Tinto PLC (9th Cir. - Dec. 16, 2008)

Want to see how fractured an en banc opinion can be? Take a look.

It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.

You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.

People v. Martinez (Cal. Ct. App. - Dec. 16, 2008)

I spent a summer after high school living with my then-girlfriend at her parent's house in Canoga Park. It was both fun and memorable, especially for an unworldly kid from Virginia, and especially for one who had never before been to Southern California.

That said, I have somewhat detailed memories of Canoga Park. Which was not probably the abolute highlight of the experience. And, among other things, recall seeing the Canoga Park Wienerschnitzel -- a chain, among others, of which this East Coast boy had never heard a peep.

Based upon this (admittedly long-ago) experience, I can say fairly confidently that it surprised me not in the least that there were multiple gang-related murders at this establishment.

Check out the opinion for a fairly good discussion (by both the majority and the dissent) of the nature of gangs in the modern era as well as the legal implications of routine gang-on-gang confrontations. It's an interesting tale. Even for those who've never been to this particular Wienerschnitzel.

Lewis v. Superior Court (Cal. Ct. App. - Dec. 15, 2008)

Let me get this straight. A dude with the last name of "Lewis" is convicted of oral copulation with a minor under the age of 18. What's his first name?

Philander.

You can't make this stuff up. And I didn't.

Sklar v. CIR (9th Cir. - Dec. 12, 2008)

There's a difference between Orthodox Jews and Scientologists.

Or, to put it even more concretely, there's a difference between paying private school tuition to send your kid to a Hebrew Academy and paying whatever charges adult Scientologists pay for their "training" in Scientology.

The latter may be partially deductable as a charitable contribution. That former definitely ain't.

I'm sufficiently clear on these points to not need the Ninth Circuit to inform me of these facts. But it's good to know it doesn't disagree.

Seattle Affilliate v. City of Seattle (9th Cir. - Dec. 12, 2008)

I think that Judge Fisher beats Judge Ikuta in this one.

People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions. So, for example, sometimes you can close off the streets and let demonstrators walk a particular path, and other times -- for example, with very tiny protests -- you can make them use the sidewalks. That seems fine.

But the City of Seattle vests unlimited discretion in the Chief of Police to decide when a particular protest is relegated to the sidewalk and when they can use the streets. And that discretion has been utilized -- as one might expect with unlimited government discretion -- in a potentially abusive manner: namely, the Chief of Police has been much more likely to put greater restrictions on political marches (e.g., to limit them to the sidewalk ) than other types of marches (e.g., sports gatherings). So, for example, the Chief of Police has been more likely to say to political marchers "You've got to have at least 200 people show up to be able to march on the street" than to non-political marchers. And when the annual march against police brutality transpired in Seattle, guess what? Yep. Relegated to the sidewalk.

Judge Fisher says that statutory structure doesn't comply with the First Amendment. I agree. Judge Ikuta dissents, but I think undervalues the danger of unlimited governmental discretion in this critical area. I'd have little problem with a statute that says, for example, "Any march under 200 people must normally stay on the sidewalk, whereas any march with over 200 people may normally march on the street," and that provides for particularized exceptions for particular reasons. But I have a big problem with a statute that essentially says "Any march the Chief of Police likes can march on the streets, but any march the Chief of Police doesn't like has to stay on the sidewalk."

So, like Judge Gould, I'd have to vote with Judge Fisher on this one.

People v. Rodriguez (Cal. Ct. App. - Nov. 26, 2008)

Perhaps this case struck me harder than usual becuase my wife's a UNC fan (and graduate). Or maybe also because I know that, as a white guy, it wouldn't happen to me.

But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap.

The thought that you can be killed for utterly no reason other than that you're Hispanic and wearing the wrong color baseball cap seems even more profoundly wrong than the legions of other senseless killings I read about every day in the annals of the California Reporter.

A depressing, and telling, tale.