With excited editorials in the New York Times and Washington Post announcing that a bill before the Senate Judiciary Committee will “gut the legal means by which prisoners prove their innocence,” it’s worth asking the following trivia question:
Q. Under the Streamlined Procedures Act of 2005, what is the minimum number of levels of judicial review a criminal defendant sentenced to death will have?
The Volokh Conspiracy’s Orin Kerr calls December 13th “Ninth Circuit Correction Day” because of two summary reversals of criminal-friendly decisions of the zany federal appellate court, which he summarizes nicely. (See also Dec. 7.) In one, Brousseau v. Haugen, the Court threw out a case that the Ninth Circuit had reinstated. Kenneth J. Haugen pled guilty to a felony, admitting that, while attempting to escape an arrest, he drove a Jeep through a “small, tight space” crowded with vehicles with “wanton or wilful disregard for the lives…of others.” But he sued the officer who apprehended him by wounding him with a shot as he was driving away (after disregarding multiple orders to surrender to an officer with a drawn weapon). The Ninth Circuit had wanted to let this case against the policewoman be decided by a jury for a supposed violation of civil rights. (David G. Savage, “Supreme Court Sides With Police”, LA Times, Dec. 13). Other police-chase lawsuits: Feb. 18; Sep. 21, 2003; Jul. 23, 2003; and older entries.
There’ll always be a Ninth Circuit: “The world’s whales, porpoises and dolphins have no standing to sue President Bush over the U.S. Navy’s use of sonar equipment that harms marine mammals, a federal appeals court ruled yesterday. A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco, widely considered one of the most liberal and activist in the country, said it saw no reason why animals should not be allowed to sue [emphasis added] but said they had not yet been granted that right.” (“Court Says Whales, Dolphins Cannot Sue Bush”, Reuters/PlanetArk, Oct. 21). For more on giving animals standing to sue (= giving human lawyers standing to sue on their claimed behalf) see our animal rights archives and specifically May 14-15 and Apr. 29-30, 2002. More: Legal Reader has a link to the opinion (PDF), and Martin Grace also comments. More: Jeff Chorney, “Call Me Ishmael — and Call My Lawyer!”, The Recorder, Nov. 1.
“Although the earth’s evaporating ozone layer affects millions of people, the damage is concrete enough that an individual can sue violators of the Clean Air Act, according to a 9th U.S. Circuit Court of Appeals judge. … [Judge Ronald] Gould opined that an individual can have standing to sue for global injuries which affect millions of people, such as ozone depletion, despite some precedent that widely shared injuries are so broad that they preclude individual damages.” Though it’s only a concurrence, it’s likely to encourage the global-warming-suit movement described in this space Feb. 6-9 and Jun. 12-15, 2003; Jul. 31 and Aug. 10-12, 2001, and Aug. 19, 1999. (Alexei Oreskovic, “Global Standing for Ozone Suits”, The Recorder, Feb. 9).
“John Roe” is a San Diego police officer who was fired when it was discovered that, in violation of department policies on moonlighting, he was selling videos of himself stripping from a police uniform and masturbating. (The pseudonymous Mr. Roe turns out to be considerably more modest when it comes to self-identification in his litigation, as opposed to his homemade videos.) Roe was discovered when he sold an official police uniform on eBay, and an investigation turned up the videos as well. In an expansion of existing Supreme Court precedent on the First Amendment, the Ninth Circuit in a 2-1 decision held that Roe could proceed with a lawsuit against the City over his firing. (Roe v. San Diego; Reuters, Jan. 29). (Update: Supreme Court summarily reverses in 9-0 decision, Dec. 7).
Six-year-old M.L., born autistic and severely retarded, was not toilet-trained, had no communication skills, and threw frequent temper tantrums that on one occasion resulted in another child being bitten. Federal law, 20 U.S.C. ? 1414, requires public schools, through an extensive and complicated procedure, to make accommodations to “educate” M.L. When the Federal Way School District offered to put M.L. in a special program with other autistic children, his parents protested, though they had not participated in meetings with school officials about the best possible solution. An eight-day hearing before an administrative law judge was held; the ALJ ruled against the parents’ objections. The parents appealed to federal district court. The federal district court ruled that the school district’s proposal complied with federal law. The parents appealed to the Ninth Circuit Court of Appeals. The appellate court affirmed the district court decision.
However, a few days ago, the Ninth Circuit withdrew its opinion affirming the case, and asked for additional briefing on the procedures used to make the decision, raising the possibility that it will issue a new opinion requiring the school district to hold more hearings about the appropriate individualized education plan for M.L.
Press coverage of the case has focused almost entirely on the irrelevant issue that the parents were unhappy that some of the regular students were teasing M.L., who was apparently oblivious to the name-calling (which took place for all of five days). (Kathy George, “Judges reconsider teasing case”, Seattle Post-Intelligencer, Dec. 22; M.L. v. Federal Way School Dist.).
Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.
Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)
UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).