• California Supreme Court,  Death Penalty

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

    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…

  • Constitutional Law,  Immigration,  Judges,  Search & Seizure

    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…

  • Constitutional Law,  Search & Seizure,  U.S. 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…

  • Briefing,  Civil Rights,  Constitutional Law,  First Amendment

    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…

  • Constitutional Law,  Education,  Immunity,  Search & Seizure

    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…

  • Civil Rights,  Constitutional Law,  Due Process,  Equal Protection

    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…

  • Civil Rights,  Constitutional Law,  Search & Seizure

    Reasonableness Governs Accidental Shooting Inquiry

    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…

  • Constitutional Law,  Internet Law

    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…

  • Constitutional Law,  Internet Law

    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…

  • Constitutional Law,  Judgment,  Jury Trial,  Summary Judgment,  Summary Judgment

    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…

  • Constitutional Law,  Criminal Procedure,  Right to Counsel

    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…

  • Due Process

    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…

  • Criminal Procedure,  Fifth Amendment - Self-Incrimination

    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…

  • Constitutional Law,  Education,  Search & Seizure

    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.

  • Appellate Procedure,  Constitutional Law,  Criminal Procedure,  Double Jeopardy,  Standard of Review,  Waiver of Issues

    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…

  • Death Penalty,  Habeas Corpus,  Writ Practice

    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…

  • Constitutional Law

    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…

  • Appellate Procedure,  Articles by Greg May,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Federal Procedure,  Standard of Review

    “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.

  • Blogging,  Confrontation Clause,  Constitutional Law

    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…

  • California Court of Appeal,  California Courts,  California Supreme Court,  Death Penalty

    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…

  • Constitutional Law,  Internet Law

    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…

  • Constitutional Law,  Ethics,  Fifth Amendment - Takings

    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,  Appellate Procedure,  Constitutional Law,  Federal Procedure

    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…

  • Constitutional Law,  Criminal Procedure,  Search & Seizure

    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…

  • Constitutional Law

    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…

  • California Supreme Court,  Constitutional Law,  Judges,  Ninth Circuit

    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…

  • Constitutional Law,  Criminal Procedure,  Search & Seizure

    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…

  • Constitutional Law,  Education,  Search & Seizure

    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…

  • Constitutional Law,  First Amendment

    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…