Will a death penalty initiative make it easier to obtain Supreme Court review of your civil case?


Creative Commons License Oliver Tacke via Compfight

Will this year’s elections have an impact on Supreme Court review?

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds.

Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases?

It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition of California Litigation Review.* The 18% statistic belies the time actually spent on death penalty cases, say the authors, “given the generally lengthy records and briefing, along with couldn’t-be-higher stakes.”

What are the chances those death penalty cases will go away? Higher than they have been in a long time, it seems. This year’s ballots may see competing death penalty initiatives, note the authors. One would streamline the appeals process in death penalty cases, while the other would eliminate the death penalty. The latter initiative seems to have a real chance. According to the authors, a recent poll found support for the death penalty in California at its lowest point in 50 years.

*Published by the Litigation Section of the State Bar of California, and the source for the case statistics cited in this post.


Judge Bea calls out his colleagues

In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.  

In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings”). The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting— and perhaps cautionary—tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule—one never envisioned by either the Supreme Court majority or the plurality.

Judge Bea then provides detail of the 4-step analysis he claims the panel engaged in. That analysis is nicely summarized by attorney and blogger Gabriel Malor:

Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.

And if you don’t mind mild profanity (by today’s standards, anyway), and especially if you are usually in sync with Judge Bea, I think you’ll find it ‘s worth clicking on the link to Malor’s post just to read the title, which is even more blunt.

Judge Bea’s dissent is joined by three others, including original panel member Judge Bybee, who warned in his separate concurrence with the panel opinion that Ninth Circuit precedent “has set us on a collision course with the Supreme Court.” 

Supremes Grant Cert in Teen Student Strip Search Case

Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen?  I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here.  Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008).

SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case.  If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted California lawyer “Gabriel Malor” (a pseudonym, for reasons he explains here).  (Don’t be misled by the “moronlogger” label in his sidebar.  He [assuming “Gabriel” is really a “he”] frequently provides very good, concise coverage of major legal developments at his blog, Gabriel Malor.)

The Results of the Shootout at the Amicus Corral

In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51).  The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons.  The Supremes find no such exception under the federal or state constitutions.  The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense to a sexual orientation discrimination claim.

It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen

There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights.  As I wrote in my post,  despite my gut- level reaction that the search was wrong, I found the majority opinion was well reasoned.  Still, the dissent won me over; it was even better reasoned and, while both opinions centered around New Jersey v. TLO (1985) 469 U.S. 325, the dissent was better supported by authority.  Along with my gut, that was enough, so I was among those happy to see en banc rehearing granted.

In today’s en banc opinion, Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008), the panel decision is reversed, but just barely.  The 6-judge majority opinion is notable for its graphic — and even poignant — description of the the search, which conveyed the degradation Savana must have felt.  The five dissenting judges split into two opinions.

I’m providing the entire introductory paragraph from the majority opinion because it so effectively tells you about the case and the holdings [citations omitted]:

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception,” nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances” giving rise to its initiation.

Not surprisingly, the search arose out of yet another “zero-tolerance” policy.  This one disallowed even over-the-counter drugs at school without prior permission.  Zero tolerance often leads to zero sense, so the court’s invocation of common sense in its discussion of whether Savana’s rights were established in the law at the time of the search (a factor relevant to immunity) really jumped out at me [citations omitted]:

Common sense and reason supplement the federal reporters. The T.L.O. Court expected no less of those to whom we entrust our children, leaving teachers to “regulate their conduct according to the dictates of reason and common sense.”  Simply put: “It does not require a constitutional scholar to conclude that a nude search of a thirteenyear-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.”

It’s always a good thing when common sense and the Constitution converge.  It would have been really nice if this decision had come down last week, so Savana could have made it part of her Independence Day celebration.

I’ll update this post after I take a look at the dissents, which won’t be until later in the day.  I’m wondering if I’ll find both sides of the debate as rational as I did in the panel decision.

I’ll also update with additional links as I find other law bloggers writing about the case.

UPDATE (7/14/08):  Drug Law Blog calls the en banc decision “a little blow for sanity” and provides an excerpt regarding the supposed “prescription strength” nature of the Ibuprofen the search was for.   the   The School Law Blog provides links to coverage by the L.A. Times and ACLU. 

Don’t Ask, Don’t Tell . . . and Don’t Dismiss

The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection.

The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though Lawrence itself is silent on the scrutiny the court applied in that case. Absent that statement, the parties each pointed to snippets of the Lawrence opinion to support their view of the appropriate level of review. The Ninth rejects this purely verbal approach:

The parties urge us to pick through Lawrence with a fine-toothed comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims. But given the studied limits of the verbal analysis in Lawrence, this approach is not conclusive. Nor does a review of our circuit precedent answer the question; as the Court of Appeals for the Armed Forces stated in Marcum, 68 M.J. at 204, “[a]lthough particular sentences within the Supreme Court’s opinion may be culled in support of the Government’s argument, other sentences may be extracted to support Appellant’s argument.” In these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.

(Emphasis in original.) Of course, it has to engage in its own verbal analysis of Lawrence to figure it out. But the court also notes that Lawrence relied on cases that applied heightened scrutiny.

The Ninth adopts three of the four factors applied post-Lawrence by the Supreme Court in Sell v. United States (2003) 539 U.S. 166, finding them equally applicable here:

Courts, however, must consider the facts of the individual case in evaluating the Government’s interest . . . . Special circumstances may lessen the importance of that interest. . . .

Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. . . .

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. . .

Thus, regarding Major Witt’s challenge:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, or the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest. [Citation.]


In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial. “This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985). In Cleburne, the Court employed a “type of ‘active’ rational basis review,” Pruitt, 963 F.2d at 1165-66, in requiring the city to justify its zoning ordinance as applied to the specific plaintiffs in that case. And Sell required courts to “consider the facts of the individual case in evaluating the Government’s interest.” 539 U.S. at 180. Under this review, we must determine not whether DADT has some hypothetical, post-hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt. This approach is necessary to give meaning to the Supreme Court’s conclusion that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 572.

We also conclude that our holding in Beller, 632 F.2d 788, that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.

(Footnote omitted.)

The Ninth thus reverses the dismissal of the substantive and procedural due process claims.

Major Witt doesn’t fare so well on her equal protection claim, in which she claimed homosexuals are treated differently than others who might cause similar discomfort among military members (e.g., child molesters) but who are not subject to automatic discharge. The Ninth holds that Lawrence did not disturb precedent subjecting such claims to rational basis review, so the dismissal stands.

In an opinion concurring in part and dissenting in part, Judge Canby states he would reverse on the equal protection claim as well and apply strict scrutiny to all the claims. His opinion may provide fertile ground for a petition for rehearing or rehearing en banc.

UPDATE (5/21/08): Other coverage around the blawgosphere:

Several related posts by assorted contributors at The Volokh Conspiracy are aggregated here, including a post on the prospects of Supreme Court review. Professor Martin’s post at California Appellate Report also briefly addresses the prospects for Supreme Court review, though his analysis on that point consists mainly of a concluding zinger about the prospects .

A law student’s take, by the pseudonymous Gabriel Malor, includes the observation that the decision is a “Memorial Day gift to John McCain.”

There’s a long post at Polymorphous Perversity, a bawg that bills itself as “legal blog on sexuality and gender.”

Much more to follow, I’m sure.

Reasonableness Governs Accidental Shooting Inquiry

A Glock 23, the external lever safety can clearly be seen behind the trigger.Image via Wikipedia

There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying.

This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though I don’t know if the officer had the same model) and Taser (pictured left) “similarly-sized-and-weighted,” and they were both holstered on her right side, the Glock on her belt and the Taser in a thigh holster. To add to this sad situation, the sequence of events was triggered by nothing more than a loud music complaint.

In this suit alleging a violation of the victim’s Fourth Amendment rights, the officer and the city moved for summary judgment, contending that because a Fourth Amendment seizure can occur only “through means intentionally applied,” and there was no dispute over the fact that the officer thought she was firing the Taser rather than the Glock, the firing of the Glock could not constitute a seizure. The Court of Appeals reverses, noting that the firing of the Glock itself does not constitute the seizure in this case because the victim had already been arrested, handcuffed, and placed in the patrol car. Under the Ninth Circuit’s “continuing seizure” rule, under which an initial seizure continues “throughout the time the arrestee is in the custody of the arresting officers,” the officer’s conduct remained governed by the Fourth Amendment throughout the course of the seizure, and liability requires only that the officer’s conduct was unreasonable, not that she had subjective intent to fire her Glock.

Reference: Accident lawyers around Austin, Tx.

Roommates.com Decision

Well, I got through the en banc opinion in the CDA immunity case of Fair Housing Council v. Roommates.com, case no. 04-56916 (9th Cir. Apr. 3, 2008) this weekend. There’s too much on the merits at the links provided in this post for me to get into them. Suffice it to say I’m terribly disappointed the court did not even address the free speech and free association issues I had hoped it would, based on the rehearing petition arguments made in those regards. It boggles my mind that someone might not be able to discriminate in their choice of roommate, and unless Roommates.com offers a very different service than its name suggests, the court’s consistent references to “landlords” and “real estate brokers” makes no sense at all to me.

Fortunately, the court leaves open the possibility of a First Amendment defense in a footnote near the end of the opinion:

We do not address Roommate’s claim that its activities are protected by the First Amendment. The district court based its decision entirely on the CDA and we refrain from deciding an issue that the district court has not had the opportunity to evaluate.

As for the link roundup I promised on Friday:

A commenter at Concurring Opinions — which has generally been critical of broad applications of immunity under the CDA — claims that even if it is lawful to discriminate in selecting a roommate, it is unlawful to run discriminatory ads:

Even though it is true that the “Mrs. Murphy” exception to the FHA permits discrimination in certain scenarios (e.g., selecting a roommate), it has the peculiar feature of banning all advertising about discriminatory preferences–even those that it allows in practice. Under the FHA, someone can lawfully choose to reject all potential roommate applicants except Malaysians, but they cannot run an ad that says “Malaysians only need apply”.

I don’t know if he’s right.

Also, check out Law.com, ABA Journal, Decision of the Day, and Info/Law in addition to the Volokh and Professor Goldman links I posted Friday

Since the decision involves the application of immunity under the Communications Decency Act, the case is attracting as much interest from tech bloggers as law bloggers. There are posts at Wired, Mashable, and ars technica.

En Banc Decision in Roommates.com Case

It’s killing me that I don’t have had time yet to digest the combined 56 pagers of the majority opinion and the concurring/dissenting opinion in Fair Housing Council v. Roommates.com, case no. 04-56916 (9th Cir. Apr. 3, 2008). You can read my prior coverage in this series of posts. (When you click that link, this post will appear at the top, with prior posts below it.)

I’ll digest the opinions over the weekend, and post a round-up of links on Monday. As expected, The Volokh Conspiracy and Professor Eric Goldman were all over it yesterday, with The Conspiracy’s post garnering the usuall large number of comments. (Plug in “roommates.com” into the search box of either of those blogs and you’ll find plenty of reading.)

Is Summary Judgment Unconstitutional?

That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt:

While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Odds are slim that I can read the article any time soon, so if anyone reads it, I’d sure be interested in your comments, which I encourage you to leave on this post.

Thorough Confusion Deprives Defendant of Right to Counsel

Confusion abounds lately. On the heels of my last post about a “hopelessly ambiguous” jury verdict comes a decision requiring reversal because the proceedings left the parties and trial court so “throughly confused” that the defendant was deprived of his right to counsel: People v. Earp, case no. B201309 (2d Dist. Mar 11, 2008).

The trouble began when Earp tried to withdraw his no contest plea to possession of methamphetamine for sale. The trouble requiring reversal, that is. The real trouble started while Earp was released pending sentencing. He violated three conditions of his probation (from another offense) and then failed to appear for sentencing. He was arrested and convicted of another drug offense in a neighboring county, then finally appeared for sentencing on his meth charge, where he announced he wanted to withdraw his plea.

The court’s recitation of the dialogue at the sentencing would be comical if it didn’t concern such a serious issue. The court couldn’t get a straight answer out of the defendant regarding the basis for withdrawal, the defendant’s new deputy pubic defender kept going back and forth on whether she intended to file a motion to withdraw the plea and whether she had a conflict, the trial court appointed the alternate public defender because it found a conflict, then resumed the hearing without the alternate public defender present, heard the relieved deputy public defender on behalf of the defendant, then vacated its order appointing the alternate public defender.

As one sign of the confusion this created, consider the attorney general’s motion to dismiss the appeal on the ground that appeal from an order denying a motion to withdraw a plea requires a certificate of probable cause, which the defendant had not obtained. The motion is denied because the appeal is not from an order denying a motion to withdraw the plea; it is based on being deprived of effective assistance of counsel , which prevented the defendant’s motion from even being made. If there’ s disagreement over whether a motion was even made, that is definitely a thoroughly confusing state of affairs.

The court reverses, agreeing that the post-plea events deprived Earp of his right to counsel. The court erred by hearing the deputy public defender on defendant’s behalf after the court had already relieved her and appointed alternate counsel, and in proceeding after making that appointment without the newly appointed counsel present.

Car Towing and Due Process

Mary Clement is a responsible automobile owner. Though she hasn’t driven her 1981 Cadillac Eldorado Biarritz in seven years, she dutifully maintains the car’s “Planned Non-Operation” (PNO) status – an alternative to normal registration for cars that will not be driven on public streets nor parked in publicly accessible parking lots.

Clement kept her Caddy parked in the parking lot of her residence – a hotel – with the permission of the owner. A Glendale police officer decided to tow it because it was illegally parked in a publicly accessible lot. When Clement sued under 42 USC § 1983 for deprivation of her due process rights, the police officer successfully moved for summary judgment on qualified immunity grounds and the “good faith” defense.

Chief Judge Kozinski’s opinion in Clement v. J & E Service, Inc., case no. 05-56692 (9th Cir. Mar. 11, 2008), gets off to a good start for Clement:

Without so much as a letter, a knock on the door, a note on her windshield or even a parking ticket, the Glendale police towed and impounded Clement’s car. They left no clue to where it had gone. Only later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

The court indeed finds that due process was violated. The private right here isn’t huge, but all the officer had to do was look up Clement’s address from the PNO certificate, or he could have left a ticket in lieu of towing the vehicle.

Alas, Clement does not prevail, because the due process right to notice under these circumstances was not clearly established at the time the car was towed. And the tow company had a valid “good faith” defense since the tow appeared to be authorized by local ordinance and state law and the tow was done under close police supervision.

She must really love that car.

(UPDATE 3/12/08):  Decision of the Day notes that the decision comes from “a trio of relatively conservative judges.”

(UPDATE 6/5/19): I just got a client inquiry based on this blog post, which led me to take another look at it and, to my horror, I found someone had hacked my blog and inserted advertisements into the post! The advertising links are gone now, but it looks like I now have to look through my other 800+ blog posts for similar shenanigans.

A Simple “Yes” or “No” Will Do, Thank You

As soon as I glanced at United States v. Rodriguez, case no. 07-10217 (9th Cir. Mar. 10, 2008) today and realized I would have to defer drafting a blog post until later, I had a pretty good idea I was going to be preempted, and I was pretty sure by whom. Sure enough, California Appellate Report and Decision of the Day both have excellent posts on the case, so I’ll just briefly explain the case and then use my fellow bloggers’ posts as starting points for my discussion.

The issue is this: if a person in custody gives an ambiguous response when asked if he waives his Miranda rights, is the officer required to get clarification or is he free to begin questioning? The trial court held the latter, relying on Davis v. United States (1994) 512 U.S. 452. In Davis, the defendant had waived his Miranda rights, then later ambiguously invoked his right to counsel, and the Supreme Court held that this did not require the officer to cease questioning to get clarification of the defendant’s intent.

The Ninth reverses the conviction in Rodriguez, holding that in Davis, the ambiguity concerned the invocation of the rights to silence and counsel after an unambiguous waiver of the same. Since Rodriguez never unambiguously waived his rights, but instead gave an ambiguous response the first time he was asked if he waived his rights, the Ninth holds that the officer was required to get clarification.

As California Appellate Report points out, the court subtly but purposefully noted that Davis was a 5-4 decision, implying it has weaker precedential value because of that. It’s a shame the court did so. I think the court’s analysis of Davis stands on its own; there was simply no need to imply that the decision was weak precedent.

Decision of the Day‘s post discusses the case with reference to the recent habeas decision in the Ninth that reached the unstartling conclusion (though it took en banc review to do so!) that “I plead the Fifth” is an unambiguous invocation of the right against self-incrimination. DoD wonders out loud if the court is “overcorrecting” for the erroneous panel decision in that case, but I think not. Again, the analysis seems spot-on to me; the court doesn’t seem to be stretching at all. Even though, as DoD notes, two other circuits have found that Davis applies to the initial waiver of Miranda rights, the Ninth points out that neither court even noted the post-waiver factual scenario in Davis.

Will this circuit split end up in SCOTUS?

(UPDATE 3/12/08):   Appellate Review weighs in, taking pains to point out that “this decision is not a product of the ‘Ninth Circus.’”

Maybe It’s Not OK to Strip Search a 13-year-old Girl for Ibuprofen After All

Last September, I covered (along with seemingly every other legal blogger) Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007), in which the Ninth Circuit held that a school’s strip-search of a 13-year-old girl for Ibuprofen, for crying out loud, was constitutionally permissible.  Today, the Ninth orders rehearing en banc.

For a round-up of coverage of the original opinion, see my original post.

Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences

In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court.

Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun.

Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and did not object to convictions or sentences when they were entered by the district court. Until his appeal, that is, when he claimed the convictions on multiple counts under the same statute for possession of the same gun constituted double jeopardy.

The court finds the convictions and sentences are multiplicitous because under § 5861(d), Congress intended each firearm to be a “unit of prosecution.” In fact, the court has previously found that Congress intended only a single offense per possessed firearm even if it violated all 12 subsections of § 5861.

The court finds that a double jeopardy challenge is not waived by failure to object to convictions and sentences. Under existing Ninth Circuit precedent, a defendant does not waive a double jeopardy challenge by failing to object to mulitplicitous charges in an indictment before pleading guilty. A motion to dismiss the multiplicitous counts prior to sentencing is enough. Further, the Supreme Court has held that a district court has no duty to resolve multiplicitous charges until the jury returns a guilty verdict on them.

The challenge is governed by “plain error” review, under which the court readily reverses because the error is obvious, affects Zapala’s substantial rights, and affects “the fairness, integrity, or public reputation of judicial proceedings.” His substantial rights are affected even though the sentences are concurrent (and thus should not affect his length of imprisonment) because conviction on multiple charges carrries other collateral consequences, including increased monetary liability (a $100 mandatory special assessment on each conviction), possible enhanced sentencing in the future under recidivism statutes, and even consequences “that [the court] cannot foretell at the time of decision.”

The court’s rationale regarding the effect on Zapala’s substantial rights mirrors those in a recent California case. The issue deserves its own blog post, which I’ll get to later.

Death Penalty Odyssey Likely to Fuel Debate

NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post.

In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty.

I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring opinion making it into the news.

It’s Not the 40 Years that Hurts, its the $20 Fee

I had to read the first few paragraphs of People v. Alford, case no. S142508 (Dec. 3, 2007) several times before it sunk in. The defendant was convicted of second degree robbery. The court imposed a $20 court security fee under Penal Code section 1465.8. Oh yeah . . . defendant also got sentenced to 40 years in prison (he had eight prior felonies).

Facing 40 years imprisonment, he promptly appealed . . . the $20 fee. At least, that’s how it might appear from reading only the Supreme Court opinion. If you look up the Court of Appeal decision, you’ll see that defendant also appealed on grounds of prosecutorial misconduct and that the court improperly commented on hearsay evidence.

But the $20 fee is the only portion of the decision that was reported, and the only part of the case to be considered by the Supreme Court. The court holds section 1465.8 is retroactive and that the retroactivity does not violate the Ex Post Facto clauses of the state or federal constitutions.

“Confronting Confrontation”

That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.

Welcome to all Los Angeles Daily Journal Readers — and a Happy Thanksgiving to All

Welcome to all those visiting this blog for the first time after reading my article in the November 21 Los Angeles Daily Journal! Click and scroll around, check out some of the links in the blogroll, and come back again. Better yet, subscribe to this blog’s RSS feed.

My regular readers of more than a few months’ duration have seen my posts about the subject of that article — last August’s en banc decision in U.S. v. Larson, in which the Ninth Circuit resolved a 3-way intra-circuit split on the standard of review for Confrontation Clause challenges based on limits placed on cross-examination — here and here. The article in the Daily Journal is behind their subscription wall online, so grab yourself a hard copy of the newspaper or check back here after Thanksgiving weekend, by which time I should be able to get a copy posted here.

I plan to keep this post at the top of the blog at least through the Monday or Tuesday after Thanksgiving. Until then, all new posts will appear below this one, so be sure to scroll down on return visits.

Here’s wishing old and new readers alike — and everyone else, for that matter — a happy and meaningful Thanksgiving holiday.

Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage.

Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers.

Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose the change.**

And all the way from Texas, the StandDown Texas Project links to some California newspaper articles and coverage by the Associated Press.

New Amicus Briefs in Roommates.com Case

Professor Eric Goldman continues to stay on top of the Roommates.com case with a new post at his Technology & Marketing Law Blog linking to some amicus briefs filed in connection with the en banc rehearing.

If you’re not familiar with this case about whether the immunity provision of the Communications Decency Act protects an online roommate locating service from liability for discriminatory roommate advertisements — as well as the issue of whether one’s right to free intimate association precludes liability for discrimination in advertising for and selecting a roommate — check out my prior posts on the occasions of last May’s panel decision and last month’s order granting rehearing en banc.

Can an Attorney’s Labor be Taken under the Fifth Amendment?

In Scheehle v. Justices of the Supreme Court of Arizona, case no. 05-17063 (9th Cir. – Nov. 15, 2007), the Ninth Circuit holds that a local court requirement for attorneys to serve periodically as arbitrators for nominal compensation ($75/day) is not an unconstitutional “taking” under the Fifth Amendment’s Takings Clause.

Whether you think that “mandatory volunteering” is a fair trade-off for the privilege of practicing law or you prefer to think of this kind of arrangement as involuntary servitude, you should check out the posts about this case at California Appellate Report and Decision of the Day

Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity

Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them.

Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of the statute that it is assigned to administer,” remanded back to the ALJ.

The Governor’s Office appealed from the remand order. The Ninth holds that it has jurisdiction to consider the appeal, even though the remand order is not a final judgment, because an “order denying a state’s claim to Eleventh Amendment immunity is an appealable collateral order.”

By the way, plaintiffs lose despite a federal statute purporting to abrogate state immunity from claims by persons holding government positions similar to those held by plaintiffs. The Ninth finds that the legislation does not meet the requirements for validity set by the Supreme Court because there are no findings of discrimination in such positions that required a remedy.

The merits earn three opinions from a three-judge panel, one in dissent.

UPDATE (11/9/07): Professor Martin gives a nice run-down of the merits and predicts the case is headed not only for en banc review but likely to the Supreme Court. Read why at California Appelate Report.

An Arrest Warrant is an Arrest Warrant is an Arrest Warrant

At least, when it comes to whether the police may enter a residence when executing it.

In U.S. v. Gooch, case no. 06-30645 (9th Cir. Nov. 1, 2007), the defendant was convicted of being a felon in possession of a firearm. He was arrested when reaching for firearms during the execution of a warrant for the search of his residence.

He claimed the search warrant was invalid because it was based on police officers’ observation of drug paraphernalia when they got out of their express van and entered the residence to execute an arrest warrant for Gooch’s roommate. Gooch contended that because the arrest warrant was only a misdemeanor bench warrant for failure to appear, it did not authorize the police to enter the residence, and thus the observations of drug paraphernalia that were use to justify the search warrant were tainted..

The Ninth rejects the argument. Joining several other circuits, the court says that an arrest warrant of whatever stripe authorizes the police to enter a residence to the extent necessary to execute it so long as they have probable cause to believe the suspect is in the residence.

Unconscious Commentary on the Law re Anti-Gang Injunction

A few days ago, our local court of appeal upheld the validity of an anti-gang injunction, with the exception of the curfew provision.  In People ex. rel. Totten v. Colonia Chiques, case no. B184772 (2d Dist. Oct 15, 2007), the court found the curfew provision of the injunction is constitutionally vague because it forbids enjoined persons from “being outside” without defining “outside.”

The next day on my way to the law library, I caught the local news on the radio and the newscaster on a local station was reading a story about the decision.  I’d swear that when he read that the court’s decision on the curfew provision concentrated on the definition of “outside,” he let out an audible chuckle — or snort, whatever you want to call it — that was clearly derisive of the notion that “outside” would have to be defined.

Notwithstanding that unconscious commentary, the court’s decision makes sense, especially its argument that “outside” could have been adequately identified, with a little care, to pass constitutional muster.  It points to the city’s juvenile curfew ordinance as an example.  The injunction, on the other hand, simply enjoins persons from “being outside”:

The curfew provision prohibits enjoined persons from “[b]eing outside” in the Safety Zone during curfew hours, but  it does not define “outside.”  . . . Does this mean that a gang member is in violation of the injunction, and subject to arrest, if he or she is sitting in the open air on the front porch of his or her residence, or if he or she is standing on his or her own front lawn, or if he or she is at a late night barbecue in the backyard?  Is a gang member “outside” if he or she is sitting inside a vehicle parked on the street?

Valid questions.

California Supreme Court to the Ninth: Can’t You Read?

Back in August, I covered the case of Fantasyland Video v. County of San Diego, case no. 05-56026 (9th Cir. Aug. 7, 2007), in which the Ninth asked the California Supreme Court to answer a certified question asking for the standard of review to apply to the constitutionality (under the California Constitution) of hours-of-operation restrictions on “adult entertainment establishments.”

The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!

DNA Collection Survives Another Constitutional Challenge

DNA collection while on supervised release is constitutional, even if the terms of supervised release in your original sentence did not provide for it and the DNA Analysis Backlog Elimination Act (“DNA Act”), which mandates it, became effective only after you were sentenced. In United States v. Lujan, case no. 02-30237 (9th Cir. Sept. 25, 2007), the court rejects arguments that collection under these circumstances violates the Fourth Amendment and Ex Post Facto Clause, constitutes an unlawful bill of attainder, and violates the separation of powers.

Lujan’s appeal was stayed pending the outcome in two other appeals, and the outcomes of those cases allow the Ninth to dispose easily of the first three challenges. Sentencing Law and Policy notes that with this decision the Ninth joins all other circuits that have “considered these and related issues,” and the first comment there calls the case “cleanup work” and notes that the Supreme Court denied certiorari just yesterday in United States v. Reynard (9th Cir. 2007) 473 F.3d 1008, which the Ninth relied upon in rejecting the Ex Post Facto Clause and bill of attainder challenges. (The other case relied upon was United States v. Kincade (9th Cir. 2004) 379 F.3d 813 (en banc).)

The separation of powers challenge requires a little more analysis from the court, as this question apparently has not been previously addressed. The court nonetheless dispatches it rather quickly. No separation of powers violation occurs by having the probation department, part of the judicial branch, collect the DNA. The probation office does not encroach on the executive branch because its role is limited to collection. It does not analyze the sample or use the results to investigate or prosecute other crimes. Moreover, the purpose of the DNA Act is consistent with the function of the judiciary because, by instilling a fear in defendants that their role in any future crimes will be quickly identified, it deters future crime and thus furthers two goals of supervised release: “rehabilitation and the prevention of harm to others.”

You can access the amicus brief filed in support of the government by the Criminal Justice Legal Foundation here.

OK to Strip Search 13-Year-Old Girl for . . . Ibuprofen?

One look at that blog headline and it’s no surprise Friday’s Ninth Circuit decision in Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007) has garnerd some attention in the legal blogosphere.

Predictably, some of the reaction has been at a gut level. See, for example, California Appellate Report or Decision of the Day.

This is a section 1983 action by the 13-year-old girl against the school officials and the district for an alleged violation of her Fourth Amendment rights by searching her for pills. The search was initiated after a student claimed to have become ill from some pills distributed by the plaintiff and pills identified as prescription-strength Ibuprofen were found in the possession of plaintiff’s friend. Plaintiff was searched by two female officials in a locked room. While she was asked to stretch out the waistband of her underwear and her bra, she was not required to remove them.

The majority decision made logical sense to me — notwithstanding my initial revulsion at the thought of strip-searching a 13-year-old girl — for its straightforward analysis under New Jersey v. TLO (1985) 469 U.S. 325. The dissent, however, seems better reasoned and has more substantial precedential support.

The dissent seems to start on an absolutist note: “it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child ia an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” Slip Op. at 12870 (dissenting opinion of Thomas, J.), quoting Calabretta v. Floyd (9th Cir. 1999) 189 F.3d 808. But Judge Thomas goes on to a very convincing TLO analysis. He concedes that some degree of search would have been permissible, but the search in question, which required the plaintiff to expose her pubic area and breasts, went over the line.

The most thorough analysis I found on a blog is at California Criminal Lawyer Blog. There’s also news coverage at the Arizona Daily Star and Arizona Daily Sun.

UPDATE (9/25/07): Adjunct Law Prog Blog weighed in yesterday as well — all the way from New York. Interestingly enough, he likewise feels that the majority and dissent both had good arguments.

By the way, when I said that this case had “predictably” drawn some gut-level reactions, I meant both predictably and understandably. I wasn’t knocking the gut-level reactions. Just thought I should clear that up, especially since so many people are reaching this post from Decision of the Day.

Bikers’ Colors — First Amendment Claim Not Dead

The Ninth Circuit has just ordered en banc rehearing in the First Amendment case of the bikers ejected from the Garlic Festival in Gilroy on the ground that the club jackets they were wearing constituted “gang insignia”  (Villegas v. City of Gilroy, case no. 05-15725 (9th Cir., Sept. 14, 2007)).  I missed covering the original case; it was published on the day I launched this blog and some other cases caught my eye that day instead. 

Decision of the Day was there.  He says that the original panel “blithely affirmed” the dismissal of the bikers’ First Amendment claims because four of them gave four different answers as to what they were trying to express through the design of their jackets.  DotD concludes, “Looks like the en banc Ninth doesn’t think that poor deposition preparation should be the death knell for First Amendment claims.”  See his post on the en banc rehearing for a link to his original coverage.