Monday, June 30, 2014

People v. Avila (Cal. Supreme Ct. - June 30, 2014)

The California Supreme Court unanimously affirms a conviction and death sentence.

But would you really expect otherwise?  Defendant is Jose Avila, the killer of five-year old Samantha Runnion.  I'd have been stunned -- truly, remarkably stunned -- had the California Supreme Court done anything other than what it did in this incredibly high-profile case.

Gilbert v. Chiang (Cal. Ct. App. - June 27, 2014)

I think this opinion is exactly right.

Now, I know, you may be thinking:  "Oh, Professor Martin's just kissing up to the opinion's author, Justice Rylaarsdam."  Wrong.  Not at all.

I'm much more likely to be kissing up to the plaintiff.  Justice Gilbert.

Yep, that's right, a sitting California Court of Appeal justice is the plaintiff in an action pending in the California Court of Appeal.  What's more, the appeal concerns an issue that might well benefit many of the justices on that court:  whether a sitting justice who leaves the bench prior to the expiration of his or her term is allowed to accept public employment immediately thereafter.

Guess what?  The Court of Appeal holds that s/he can.  Reversing the trial court.

Why would anyone not allow a former justice to hold public office after leaving the bench, you might ask?  Good question.  The truth is:  There's utterly no reason to do so.  As Justice Rylaarsdam's opinion cogently explains, it'd be silly -- absurd, even -- to adopt such a principle.

But the trial court nonetheless thought that that's exactly what the voters did when they said (in the California Constitution) that a judge of a court of record is ineligible for public employment "during the term for which the judge is seated."  So, under the trial court's theory, if you leave the bench before your term of office has expired, that's fine, but during the remainder of your term, you cannot perform a public office.

The Court of Appeal's opinion smartly explains why that reading of the statute both doesn't make any sense and also isn't what it actually says.  Once you're no longer a judge, the statute no longer applies.  So you're free to take public office; e.g., to be the dean of a public law school.

It's a really great opinion.  Entirely right.  As well as just.

And I'd say that regardless of who wrote it.  Or who benefits from it.

Friday, June 27, 2014

People v. Brown (Cal. Ct. App. - June 25, 2014)

Question:  What's the difference between 26 inches and 25 1/2 inches?

Answer:  Prison.

That's at least true when the measurement at issue is of your shotgun in California.  Because even if your barrel is the right length (e.g., it's not a "sawed-off" shotgun), if your shotgun's too short (e.g., a "shortened" shotgun), it's illegal.  And, no, the Second Amendment doesn't save you.  Even if a short shotgun would perhaps be marginally more effective for combat in a tight hallway or the like.  There's a  reasonable interest in avoiding shotguns that are more easily hidden (e.g., in one's coat).  So use a tape measurer if you want to stay out of prison.

Oh, one more thing.  If you elect not to use a tape measurer, it's probably not a good idea to repeatedly call up the DMV (as well as tell the police) that you might up in there and "light up the place".  These folks tend to take these things pretty seriously.

Rightly so.

Thursday, June 26, 2014

In Re Y.R. (Cal. Ct. App. - June 3, 2014)

"Detective Robert Forbes of the San Diego County Sheriff's Office was assigned to investigate the incident of vandalism at the clubhouse. After about a year, law enforcement identified Y.R. as a potential suspect from DNA found at the scene."

Wait a minute.  We're now using DNA to figure out which kids committed a year-old offense of busting down the door to a HOA clubhouse?

I had no idea the San Diego Sheriff's Office was so . . . efficient.  Particularly since my only personal experience with the process is having to file a theft report online -- because that's the only way you're allowed to do it -- after a couple of guys were spotted smashing the windshield of my parked car and stealing a laptop therein.  For that, you get a cop who spends five seconds reviewing the report online and hitting the "Okay" button -- nothing else -- but for a busted door, you apparently get police officers coming out and taking DNA.

I'm not complaining about the usual process.  Truly.  I get that for most minor (e.g., sub-$5000) property crimes, the police aren't likely to catch anyone, so won't even try.  Indeed, for most property crimes worth less than $500, the San Diego Police Department won't even let you file a report.  Just wastes their time.

I just find it surprising that we're nonetheless using DNA evidence to catch a teenage "aider and abettor" girlfriend who tells her boyfriend she's cold and thus "persuades" her boyfriend to break down a door to they can warm up in a clubhouse.  Not sure why that particular crime gets so much attention.

Not critical.  Just surprised.

Wednesday, June 25, 2014




Not bad, Mr. Underwood.  Not bad at all.

Tourgeman v. Collins Financial Svcs. (9th Cir. - June 25, 2014)

With all due respect, when the majority opinion devotes 31 single-spaced, facially persuasive pages explaining in detail why the district court erroneously granted summary judgment, I think it's incumbent on the dissent to explain why s/he disagrees.  Rather than simply saying:  "I respectfully dissent. As I view the record, the trial court got it right. I would affirm."

Which is what Judge Farris does here.

I'm not saying that you've got to write a dozen pages explaining your reasoning.  A paragraph or two might well suffice.  But you've got to at least summarize the district court's reasoning and why it seems persuasive to you.  Especially since the majority has spent 31 pages demolishing it.

Now, at 84 years of age, Judge Farris is perhaps entitled to a little leeway.  Brevity's especially fine for someone who's seen and done a lot in his life.

But not this much.  Not in a published opinion, anyway.

Tuesday, June 24, 2014

U.S. v. Shouse (9th Cir. - June 24, 2014)

"Shouse was found to have an expansive cache of child pornographic material, including 82 child pornography images on an iPhone, and an old cellular phone SD card containing 264 child pornography images as well as18 child pornography videos, nearly all of which Shouse produced himself as he committed sexual acts on a female infant. The videos reveal Shouse penetrating and ejaculating on the infant while she cries for her “mom or mommy” and the images show pre-pubescent children being penetrated and children that Shouse admits are in “bondage.” Rearden and Holt leave no doubt that this material qualifies as sadistic or masochistic content."

Given these details, I'll bet you can guess around how many years Shouse receives in federal prison.  That's right.  Pretty much the rest of his life.  Fifty years, to be exact.  Assuming he lives that long once his fellow prisoners learn the details of his offense.

The Ninth Circuit affirms.

In Re A.S. (Cal. Ct. App. - June 24, 2014)

My sense is that you don't need to read this opinion.  Because my strong guess is that we'll be reading about 17-year old A.S. at some additional point in the near future.  When he's convicted of crimes and sentenced as an adult.

Sometimes you get the very, very strong feeling that certain people are nearly irrevocably down a path of long -- or even lifelong -- criminality.  This is one of those cases.

Let's hope I'm wrong.

Monday, June 23, 2014

Verdugo v. Target Corp. (Cal. Supreme Ct. - June 23, 2014)

I'll admit that part of me feels old when I read this opinion.  Or at least old-fashioned.  It's likely true that a modern incarnation of the Traynor court would have gone the other way in this one.  Whereas I would sign on to today's California Supreme Court's opinion, which holds that there is no common law duty for even big-box stores to have automated external defibrillators (AEDs) on their premises.

A court that was revolutionary might well find such an obligation.  There are, after all, lots of heart attacks.  For big-box stores, the cost of including AEDs might be relatively nominal.  So one might well think that imposing a common law duty would save lives at minimal cost.  Which, broadly speaking, seems the right thing to do.  Imposing such a duty seems far less revolutionary (or burdensome) than the California Supreme Court's decades-old decision to sometimes impose affirmative duties on businesses to protect against third party criminal assaults.  Guards costs a lot more, after all, than $1200 AEDs.

Nonetheless, I agree with the California Supreme Court.  A thousand bucks or so isn't chump change.  At this point, I'm not willing to impose a duty.  If only because it'd be very hard (and messy) to figure out just how large a store would need to be before AEDs are required.

So in the meantime, stores can dial 911.  Hopefully paramedics will get there soon.  Hopefully.  And if they don't, well, that's terrible, and a tragedy, but not the basis for a lawsuit.

Give it some time and I might go the other way.  Drop the cost down to a hundred bucks or so and, to be honest, I'd probably impose a duty.  As potentially irrational as that might be, since I concede that there's no material difference to a Target between $1200 and $100.  Nonetheless, at $100, I might well be happy with imposing a common law duty on pretty much every nontrivial shop to have an AED, or at least one in close proximity.

One tangential point.  On numerous occasions in this opinion the California Supreme Court cites material available on the internet.  Which is great.  But the citation for those authorities is supposed to indicate when that material was viewed; e.g., "as of 6/12/2014" or "viewed on June 12, 2014".  But instead of an actual date, the opinion (e.g., in footnote 14, and on pages 36 through 38) reads "[as of OPN FILE DATE]."

Which is wrong for two reasons.  First, it looks like a draft.  Where's the actual date?  Seems like someone forgot to edit this stuff out.  Second, that's not what you're supposed to do.  You're not supposed to include a date -- e.g., the opinion file date -- on these citations unless you actually review the relevant citations on that particular date.  Which isn't what seems to have transpired here.  Instead, the citation was probably actually viewed back when the opinion was drafted (i.e., earlier this year) and then the author puts in a placeholder that says to later include the date on which the opinion was in fact published.  That would be fine if the person in charge of including that later date (e.g., the publisher) was also charged with pulling up the citation and making sure that the authority was actually there.  But I see no indication that this is what was intended.  It instead reads like the author is telling the publisher to just include a particular date (i.e., the filing date) the day the opinion's published.  That's not okay.  It defeats the purpose of the date.  I understand why an author might not want to include an earlier date, as it may reveal when the opinion was actually drafted (God forbid!).  But if you want to put in a later date, you've got to actually pull up the authority again.  Making sure it's both still there as well as that it still supports the proposition for which it's cited.

A minor point, but one worth mentioning.  As well as correcting.

Hendricks & Lewis PLLC v. Clinton (9th Cir. - June 23, 2014)

George Clinton is a famous musician, a member of the Rock and Roll Hall of Fame, and is still going strong at 72.  If you're into funk, he's a classic.

But if you want to listen to his music -- perhaps Atomic Dog, anyone? -- you're going to have to ask the Seattle law firm of Hendricks & Lewis.  Not because it represents him.  But rather because it now owns his copyrights.  Having seized them for unpaid legal fees.

I'm not sure how it got this bad.  Hendricks and Lewis used to represent Clinton.  Racking up . . . wait for it . . . over $3.3 million in legal fees between 2005 and 2008.  When Clinton only paid the firm a little over a million bucks, the firm went after Clinton.  Ultimately enforcing the fee obligation not only to judgment, but also subsequently enforcing the judgment against pretty much anything the firm could find.  Including the copyrights.


Friday, June 20, 2014

Allen v. Meyer (9th Cir. - June 20, 2014)

"Allen consented to jurisdiction before a magistrate judge, but the record confirms—and the parties concede—that the officers never did the same. On two occasions during the pendency of the motion to dismiss [filed by the officers], the magistrate judge ordered the officers to reject or consent to magistrate-judge jurisdiction. After the magistrate judge’s first order, the officers filed their reply brief but failed to address the consent issue. Acknowledging that the officers had not yet consented to his jurisdiction, the magistrate judge then issued a second order and set a deadline for the officers to respond. Inexplicably, without waiting for the officers’ response or for this second deadline to pass, the magistrate judge granted the officers’ motion to dismiss and entered judgment against Allen."
Not the most impressive performance by Fresno Magistrate Judge Gerald Cohn.  Or, for that matter, by the California Attorney General's office, which represented the officers.

Thursday, June 19, 2014

U.S. v. Rodriguez (9th Cir. - June 19, 2014)

If I hadn't have read them straight from the pages of the Federal Reporter, I'd have thought that the details of this case came from Hollywood rather than out of a federal prison in Victorville, California.

Read the first fifteen pages or so of Judge Rawlinson's opinion.  Then remember that if all that stuff is routine in a maximum security federal prison -- routine drug use, alcohol consumption, murder, etc. -- then imagine what it's like in a state prison.

Why read Lord of the Flies when you can get a similar, nonfictional recitation from the Ninth Circuit.

Desertrain v. City of Los Angeles (9th Cir. - June 19, 2014)

The City of Los Angeles prohibits people from living in their car on a public street.  You can live in your car on private property; for example, some churches allow homeless people to park their cars in the chuch parking lot and sleep there, as long as they're gone by a certain time.  But you can't live in your vehicle on a public street (or beach).

Plaintiffs sue, claiming that the statute is unconstitutionally vague since it does not specifically define what it means to use a vehicle "as a living quarters," and also contend that the statute is arbitrarily enforced in violation of the Due Process Clause.

The district court dismisses the lawsuit.  The case goes up to the Ninth Circuit.  And the panel is . . .

Judges Pregerson, Berzon and Christen.

You couldn't be more lucky if you were homeless.  Short of winning the lottery, anyway.

You can figure out what the Ninth Circuit does.

Sweet dreams, homeless-but-not-carless.

Wednesday, June 18, 2014

U.S. v. Jackson (9th Cir. - June 18, 2014)

Judge Reinhardt waxes poetic in an opinion that's somewhat replete with tangents and that reverses a misdemeanor criminal conviction (resulting in a fine of $150) for insufficient evidence.

Judge Murguia is fine with the result, but not the digressions.  So she concurs.  Purely, I strongly suspect, for style reasons.

There are two different views about joining the opinions of others.  One view says that the author largely has the prerogative to say whatever s/he wants to say in the form s/he prefers, and that the remainder of the panel should go along with it as long as the substance is fine.  The other view says to concur separately if the author's stylistic choices are substantially not to your liking, particularly when you have no strong personal attachment to the author.

Judge Murguia apparently takes the latter approach.

Allen v. Liberman (Cal. Ct. App. - June 18, 2014)

Here are the facts as they appear in the introduction to Justice Mauro's opinion, which affirms the grant of summary judgment to the defendant:

"This case involves the application of California’s social host immunity law. Shelby Allen was 17 years old when she went for a sleepover at the home of her 16-year-old friend Kayli Liberman. After Kayli’s parents went to bed, Shelby obtained vodka from the Libermans’ bar, consumed 15 shots, began vomiting and passed out. Kayli propped Shelby’s head against the toilet, took Shelby’s cell phone, closed the bathroom door and went to bed.  [Shelby then died of acute alcohol poisoning.]"

Here are the more complete details that appear in the subsequent statement of facts:

"On the evening of December 19, 2008, Wallace and Debby Liberman were entertaining in their game room, which contained a fully stocked bar. Kayli Liberman arrived home from a party and, in the presence of her parents, consumed alcohol with her older sister Tori. Shelby Allen and Alyssa Alexander arrived at the Liberman home around 12:30 a.m. after Debby gave permission for them to spend the night there. The Liberman family continued drinking alcoholic beverages, but Shelby and Alyssa did not consume alcohol in the presence of Kayli’s parents. Between 12:30 a.m. and 1:00 a.m., Wallace and Debby went to bed. Wallace suspected that the minors wanted to drink alcohol and cautioned them that although his daughters had permission to do so in their home, he did not have the right to give such permission to Alyssa and Shelby, who should talk to their own parents about the subject."

Those additional details make the defendants appear far more morally -- even if not legally -- culpable, no?

Tuesday, June 17, 2014


It's funny how things turn out sometimes.






Which brings us to this morning's case.





Monday, June 16, 2014

Ruiz v. Affinity Logistics Corp. (9th Cir. - June 16, 2014)

The Ninth Circuit has not been kind to S.D. Cal. district judge Janis Sammartino.

In 2009, Judge Sammartino held a three-day bench trial in a wage-and-hour class action and found for the plaintiffs.  She held that whether the truck drivers in that case were employees (as aruged by plaintiffs) or independent contractors (as argued by defendants) should be decided according to Georgia law.

Two years ago, the Ninth Circuit reversed.  California law applies.  Try again.

So she did.  Briefs get filed, Judge Sammartino reviews her prior decision, and holds that the result is the same under Califonia and Georgia law.  No dispositive difference.  Defendants win again.

Nope.  The Ninth Circuit today reverses again.  Under any view of the evidence, the Ninth Circuit holds, plaintiffs are entitled to win.  They were employees.

And this time, the Ninth Circuit doesn't even need oral argument.  Decides the case on the briefs.

But thanks for trying.

Friday, June 13, 2014

Reddam v. CIR (9th Cir. - June 13, 2014)

I can't tell you how unsympathetic I find the founder of DiTech -- the well-known home mortgage company -- to be here.

Yes, I understand that rich people don't want to pay taxes.  Who does?  So when John Reddam sells his company to GMAC Mortgage and makes many, many tens of millions of dollars, yes, I get that he does not feel like paying any taxes on it.

I also understand why places like KMPG like to latch on to these desires and invent creative offshore Cayman Islands schemes to "shelter" such gains from taxation.  Namely, because KMPG will make a boatload of money off of selling these things.

So everyone's motives are understandable.

But I also can't help but be entirely happy that the Tax Court -- as well as the Ninth Circuit -- frustrate these desires and hold that the relevant tax schemes employed by KMPG and Reddam "lack economic substance" and hence don't work.

Judge Hurwitz writes a really good opinion that explains why.  Not why I'm happy, of course.  But why these schemes do indeed lack economic substance.

Here's a great snippet from Judge Hurwitz's opinion that's a nutshell of the underlying analysis:

"Put differently, the small percentage chance that Reddam’s OPIS transaction could have created a sizeable economic gain in return for his multi-million dollar investment pales in comparison to the expectation that it would always create a tax loss of $42,000,000 to $50,000,000. No matter how the underlying Deutsche Bank stock performed, the OPIS transaction was designed inevitably to produce a tax loss: the $42,000,000 shift of basis from Cormorant to Reddam would always (even under Reddam’s expert’s calculations) have overshadowed any possible gain. On this record, the Tax Court was correct in concluding that the percentage of likely potential gain did not infuse economic substance into what was clearly a tax loss scheme."

Or, as Judge Hurwitz explains in footnote 10:

"Dr. Miller’s report states that only in highly uncommon circumstances would the OPIS transaction make any kind of profit, but that five percent of the time it could make between $3,450,000 and $6,300,000. It defies belief that an objective investor would risk $6,000,000 on a transaction that was designed to lose money at least seventy-five percent of the time, could make a nominal profit twenty percent of the time, but might, only five percent of the time, have generated profits in that range for any reason other than to garner the eight-figure tax loss the transaction was designed to generate."

Well spoken, sir.

Well spoken indeed.

Thursday, June 12, 2014

Orichian v. BMW (Cal. Ct. App. - June 12, 2014)

Sorry your BMW X5 was not to your liking.  That truly sucks.

But the jury found that, while it perhaps wasn't "all that," it also wasn't a lemon.

The Court of Appeal affirms.

Not a happy experience for the plaintiff on any front.  Not at the dealership.  And not in the courts.

At any level.

Wednesday, June 11, 2014

Big Lagoon v. California (9th Cir. - June 11, 2014)

One of the downsides of sitting by designation is that you don't get a vote on any en banc call.  That downside is doubled when the only other person you can persuade to join your opinion for the panel is (as here) senior, particularly when you've got an active judge (as here) dissenting.

Add to your troubles when your opinion is arguing that circuit precedent has been implicitly overruled by intervening authority.  Make it an even more difficult task when a big portion of the opinion is about that age-old question -- quite familiar to at least one ex-President -- of what "is" means.

Put it all together and you get a panel opinion in January that this afternoon gets taken en banc.

Thanks for the help, District Judge Block.  We appreciated your flying all the way from the Eastern District of New York to assist the Ninth Circuit in San Francisco.  Which is no small task, I might add, for someone who turned eighty years old on Friday.

Happy Birthday!

Now watch from the sidelines while everything you wrote disappears.








Tuesday, June 10, 2014

In Re I.G. (Cal. Ct. App. - May 20, 2014)

"I.G. was 14 years old when she came to the attention of the Agency in July 2012. She had just tested positive for THC (tetrahydrocannabinol), the active ingredient in marijuana, after giving birth to a premature baby. The Agency filed a petition under Welfare and Institutions Code section 3001 on behalf of I.G.’s baby alleging I.G. and the baby’s father were both using alcohol and illegal drugs, were assaultive toward each other and others, and had not been visiting the baby or learning how to care for her. The allegations were found true and I.G. was provided reunification services, but she did not maintain contact with her attorney or the social worker.

In October 2012, the Agency discovered that I.G.’s mother was rarely home, using methamphetamine and abusing alcohol, and allowing drug users to frequent the home and sleep in the breezeway outside their home. Mother’s whereabouts were unknown to I.G. and her siblings (ages 11, 12, and 17) much of the time. I.G., after one of her many arguments with mother, ran away and became homeless, was not attending school, and was using methamphetamine and marijuana. I.G. was physically aggressive at home, had a history of assaulting her mother and siblings and, on at least one occasion, assaulted and injured a sibling with a knife. Law enforcement had responded to the mother’s residence on 28 occasions over the previous three years due to domestic disturbances and I.G. and her sister frequently running away. I.G.’s father was serving a lengthy term in prison in the State of Washington for attempted murder and possession of a firearm."

How you break this cycle is totally beyond me.  What a mess.

That's even more the case when the attitude of the relevant party (I.G.) is aptly described by her statement that all she wants to do is to "live wherever and be a kid."  Uh, well, here's the thing:  You're a child with a child, you and your baby father hit each other, you don't give a crap about your kid, you're using meth and you've used a knife on one of your siblings.  The option to just "be a kid" pretty much went out the window once you became a mother.  I understand that you don't think that way.  As amply reflected by the fact that being pregnant didn't stop you from continuing to get high (and have a premature baby).  But that's the stark reality.  Playtime's over.

So the child/parent here doesn't look very good.  Nor, to be honest, does the Shasta County Health and Human Services Agency, which is in charge of recommending where she should stay.  Here's what the Court of Appeal has to say about the Agency:

"The Agency argues I.G. 'is not simply an obstinate minor,' but 'a street-wise minor/mother who has shown her ability to survive on her own and with her family. That is where she intends to be and that is what [the juvenile] court appropriately allowed and ordered.' This is a stunning argument by counsel for a child protective service agency. We reject it out of hand. The record, to be sure, reflects a number of negatives. I.G. was a frequent runaway and a habitual truant. She continued to use illegal drugs during her teenage pregnancy. That may have led to the premature birth of a child she essentially abandoned. She had a history of violence against her siblings and in the presence of law enforcement. It is this behavior and these circumstances which have resulted from I.G. being in her mother’s custody. Having been handicapped by poor parenting for years, I.G. has now been abandoned by the administration of child dependency justice and again left alone to attempt to manage her own well-being sensibly. Clearly, she cannot do it. Equally clearly, it is error for the Agency and the court to abdicate their legal duties in the face of it all, however apparently difficult."

Come on, Justice Nicholson.  Tell us what you really think.

I'm not optimistic at all that the underlying situation is going to get much better.  Neither, I imagine, does the Court of Appeal.

But you gotta try.  Because the status quo is simply intolerable.  A situation which will likely replicate itself in the next generation.  As it did the generation before.

Monday, June 09, 2014

Scialabba v. De Osorio (U.S. Supreme Ct. - June 9, 2014)

See today's Supreme Court decision?

Told you so back in 2012.

Admittedly, I was off when I said the Supreme Court would reverse in an opinion "not nearly as close as the 6-5 split of the en banc court."  It stayed a close one in the Supreme Court.  5-4, at least as to the ultimate result.

That said, kudos to anyone who could have predicted this 3-2-1-3 result.  With a lineup of Justices Kagan, Kennedy, Ginsburg, Roberts and Scalia on the "immigrant loses" side, with Justices Alito, Sotomayor, Breyer and Thomas concluding that the immigrant wins.

Even crystal balls aren't that crystal.





Rightly so, I think.

Friday, June 06, 2014

People v. Martinez (Cal. Ct. App. - June 6, 2014)

You and your friends go to Lalapalooza.  You're having a great time.  You go to a bar, have some drinks, and gradually become intoxicated.

One of your friends meets a guy.  Looks like he's in the military, but when your friend asks him what he does, he says he's in "pharmaceuticals".  What kind?  "Methadone".

Oh.  I get it.

Your friend seems psyched.  She tells the guy she's interested.  He leaves, and comes back with some pills, which your friend takes.  Offers some to you, but you politely decline.

Your friend is fairly drunk at this point, so you try to get her to leave, but she wants to stay with her new friend.  It's clear that you're not psyched about this, and your friend tells you not to judge her.  Your friend ultimately leaves with her new companion, who drives her home.  They have sex, and in the morning, the companion leaves.

And your friend dies of a methadone overdose.

The companion eventually flags down a police officer and tells the officer that a girl seems dead, and the police officers confirm this fact and get his story.  They then charge the guy with murder.  There's a plea.  He's sentenced to just short of twelve years in prison.

This trip to Lalapalooza works out poorly for everyone.

Thursday, June 05, 2014










Wednesday, June 04, 2014



Four years in prison.






Then let me know how that works out for you.

Tuesday, June 03, 2014






Way too long.  Way.


This is a crush.







Well done.

Monday, June 02, 2014

FTC v. BurnLounge, Inc. (9th Cir. - June 2, 2014)

I'll add just one additional observation to Judge Christen's comprehensive and persuasive opinion, which affirms an opinion by District Judge Wu with similar qualities and with which I wholeheartedly agree:

If BurnLounge wasn't an illegal pyramid scheme, then nothing is.

People v. Elmore (Cal. Supreme Ct. - June 2, 2014)

I cannot fathom how the California Supreme Court comes up with an opinion like this one.

Check that.  I actually can fathom how the Court comes to this result.  So I "understand" why.  It's more accurate to say that what I really feel -- fairly strongly -- is that the logic and policy rationales articulated by the decision cannot withstand analytical scrutiny.

It's a fairly straightforward criminal law question, so some background might be in order.  Murder requires malice.  There's no malice if you act in an (1) honest, and (2) reasonable mistake of fact regarding self-defense.  So, for example, if you honestly and reasonably think that someone else is about to illegally shoot you -- say, for example, that you think you see a gun and hear them say "I'm going to kill you" -- you're not guilty even though they in fact are holding a cucumber and said "I'm going to feed you."  That's self-defense, even though it's based upon a mistake of fact.

You can see why we don't punish people for that.  If what you did was mistaken, but reasonable, we don't put you in prison.  Because that can happen to anyone.

But when your mistake of fact was unreasonable, the analysis changes somewhat.  If you think you see a gun when it's in fact a cucumber, and it would be pretty darn obvious to everyone (looking at the thing with your eyesight, from the distance you were, etc.) that it's not a gun but instead a cucumber, your mistake of fact is unreasonable.  So we still punish you.

But we don't punish you for murder.  Because that's got a mental state (malice -- e.g., premeditation) that you don't possess.  You didn't intend to kill the guy for bad reasons.  So you're still guilty.  But not as culpable as a first-degree murderer.  You're instead guilty of voluntary manslaughter.  We call that defense "imperfect" self-defense.  Your mistake of fact was unreasonable, so you're still guilty, but of a lesser offense.  You should have known better, but didn't.  Punished, but not for a crime that requires malice.

All of this is undisputed.  That's the law, and it makes sense.

But what about when your mistake of fact is really unreasonable?  You're standing two feet away from the guy, he's peeling the cucumber with a cucumber peeler into a salad, you see the cucumber peeler and the salad, but you still inexplicably think the cucumber is a gun (and think that, for some reason, the guy is holding the gun over a salad and touching it with a cucumber peeler prior to a decision to shoot you).  Your mistake of fact is just totally mistaken.  Same rule?

The answer, in my mind, is unmistakably "Yes".  Whether you're "unreasonably" mistaken or "really unreasonably mistaken" doesn't matter.  You lack the requisite mental state in both cases.  In both of these situations, we want to punish you, but we don't want to punish you for murder.  Because that (heavy) punishment (e.g., death) is reserved for people with really culpable mental states; i.e., those who deliberately kill with malice.  Whether you're stupid or "really" stupid, you're liable for voluntary manslaughter.  End of story.

Mind you, just how "stupid" your mistake of fact is might be relevant to questions about whether you actually believed it.  So, for example, in our "cucumber salad" hypothetical, a jury might perhaps find that in light of your distance and the cucumber peeler and the other facts, you didn't actually think the cucumber was a gun.  Even though you testified otherwise.  But if the jury found that you did, in fact, think the cucumber was a gun, well, then, it's voluntary manslaughter.

The California Supreme Court, however, holds otherwise.

The Court, in a 4-3 decision, creates a distinction between an "unreasonable" mistake of fact and a "really unreasonable" one.  Holding that the former is a defense on the merits, but the latter is not.  A "really unreasonable" mistake is, the Court holds, a "delusional" one.  So you can only bring those up via an insanity plea.  Not on the merits.  (And good luck with that.  Because the standards for insanity are extraordinarily high, and contrast in a plethora of substantive ways with defenses on the merits like imperfect self-defense.)

Here's a pretty good summary of the holding, from page 11 of Justice Corrigan's opinion:

"[U]nreasonable self-defense, as a form of mistake of fact, has no application when the defendant's actions are entirely delusional. A defendant who makes a factual mistake misperceives the objective circumstances. A delusional defendant holds a belief that is divorced from the circumstances. The line between mere misperception and delusion is drawn at the absence of an objective correlate. A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation is not delusional. One who sees a snake where there is nothing snakelike, however, is deluded.  Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant‟s mind."

With respect, that's just crazy.

For one thing, unreasonable self-defense was -- and always has been -- intended precisely to encompass "reactions to threats that exist only in the defendant's mind."  Everyone agrees that if someone shoots a guy with a cucumber 40 feet away, thinking (unreasonably) that it's a gun, that's indeed imperfect self-defense.  Even though cucumbers don't shoot bullets and hence the threat exists only in the defendant's mind.  The distinction the Court attempts to draw simply does not exist.  All of these cases encompass reactions to threats that exist only in the defendant's mind.

For another thing, the line between "unreasonable" and "really unreasonable" (i.e., "delusional") mistakes of fact is, as a practical matter, virtually entirely arbitrary.  Justice Corrigan says that when a belief is "divorced from the circumstances," it's delusional.  But all mistakes of fact are necessarily "divorced from the circumstances."  That's why they're mistakes.  The guy from 40 feet away who thinks that the cucumber is a gun is divorced from reality because the reality is that he's looking at a cucumber, not a gun.  Ditto for the guy two feet away.  This "divorced from the circumstances" standard makes no sense to me.

That's true even when one uses Justice Corrigan's hypothetical.  She says that if you see a stick and think it's a snake, that's imperfect self-defense, but not when you "see[] a snake where there is nothing snakelike."  But that's wrong on both ends.  On the one hand, when you see a stick and think it's a snake, that's "delusional" too because the stick ain't a snake; it's got no fangs, it's has no skin, it does not move, etc.  Your perception is "divorced from reality".  On the other end, it's meaningless for the Court to say that when you "see[] a snake where there is nothing snakelike," you're deluded.  If only because there's always something snakelike about everything, or at least those things you perceive as snakes.  Imagine that you perceive a dinner plate as a snake.  Well, they're both made of matter.  They are both roughly the same weight.  And, most relevantly, they both create the impression of a snake in your mind.  Which is why you honestly, but mistakenly, believe the plate is a snake.

It's simply arbitrary to say that things that are "snakelike" create a defense but thinks that are not "like a snake" do not.  Which characteristics matter?  Height?  Weight?  Shape?  Movement?  Remember that we're already (necessarily) talking about unreasonable mistakes of fact here.  Creating a legal dividing line between what's "snakelike" and what's not, when dealing with unreasonable mistakes, is to create an artificial and irrational distinction.

More importantly, it's a distinction that doesn't matter.  What matters, for culpability purposes, is what the defendant sees.  If the defendant honestly sees a snake, than that's what matters.  Because if he in fact honestly sees a snake, and shoots at it, thereby killing a person, it matters not whether the person was "snakelike" or not.  The fact is that the defendant shot at something he thought was a snake.  We should punish that person.  But not for a crime that requires malice.  Because he didn't have it.  We know that because the jury found that, in fact, the guy honestly thought he was shooting at a snake.

The California Supreme Court wants to channel all those inquiries into an "insanity" defense.  But that creates an arbitrary and irrational line.  For purposes of culpability, a guy who sees a snake because his eyesight is bad is no different than a guy who sees a snake because as a child, his parents daily put a snake into his crib while screaming the word "cucumber".  In both cases, someone sees a snake even though a snake is not, in fact, there.  That's what their brain processes.  When that's what their brain sees, and what they act upon, the culpability is the same.  Whether it's because their optic nerve is the one that's faulty or whether it's because the part of their brain that deals with cucumbers is faulty.

Yes, I understand, there might be some overlap.  It may well be that insane people make mistakes of fact.  Indeed, I'm pretty confident that many do.  But that's no reason to deprive them of a defense that everyone else has.  One that's entirely appropriate to their undisputed mental state.

The California Supreme Court's opinion also results in a punishment scheme that seems profoundly distorted to me.  Under their view, this is the pantheon of punishment:

(1)  Reasonable mistakes of fact:  No punishment (i.e., acquittal).
(2)  Unreasonable mistakes of fact:  Some punishment (i.e., voluntary manslaughter).
(3)  Really unreasonable ("delusional") mistakes of fact:  Full punishment (i.e., first-degree murder).
(4)  Really, really unreasonable ("insanity") mistakes of fact:  No punishment (i.e., insanity acquittal).

How does the existence of (3) make any sense?  You would think that the degree of "crazy" (i.e. irrationality) would -- and should -- consistently scale with the degree of culpability.  So a deliberate, malicious person gets full punishment, a somewhat ("unreasonable") crazy person gets punished to a lesser degree (since they're less culpable), and a totally crazy ("insane") person gets no punishment (of a criminal nature) at all.

But under the majority's view, the partially crazy person ("unreasonable") gets lesser punishment, the totally crazy person ("insane") gets no punishment, but the guy in the sweet spot between these two -- the "delusional" person -- gets full punishment.  What the hell?

I need not discuss at length some of the additional arguments made by the dissent:  how the majority's rule conflicts with the statutory language, etc.  I think it sufficient that the majority's rule makes neither practical nor doctrinal sense.  Yeah, I get the practical reason why the Court might so hold:  it's much easier -- and punishes people a lot more severely (given the difficulty of mounting an insanity defense) -- to shunt all of these inquiries into a separate insanity phase.

But you can't do that.  Not if you have -- as we do -- a defense based upon imperfect self-defense.  If you have a regime that -- as we do -- looks into the mental state of the defendant, than that's what you have to do.  You can't coherently draw a doctrinal distinction between "crazy" and "really crazy" and "totally crazy" mental states.  Much less punish the middle of these more severely than the other two.

So, irony aside, I just think this decision is crazy.  Not delusional, mind you.  But unreasonable.

With the caveat that it shouldn't matter.