U.S. Ninth Circuit - The FindLaw 9th Circuit News and Information Blog

U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog


From 2006 to 2011, Emerson Callum and Lavont Flanders posed as talent scouts on ModelMayhem.com, a social network for aspiring models. The duo would lure women to Miami under false pretenses, then drug and sexually assault them on tape, marketing the videos as pornography. Both were eventually convicted and received life sentences.

In 2008, Internet Brands purchased ModelMayhem.com from its founders. Two years later, the company sued the founders for failing to disclose the potential for liability for civil suits due to the two rapists' actions. And yet, IB posted no warnings. In 2011, Jane Doe became another one of their victims.

She sued IB under California law, alleging a violation of the state's "duty to warn" (the Tarasoff duty). The district court dismissed the suit, holding that Section 230 of the Communications Decency Act provided immunity for online service providers over content posted by third parties.

Yesterday, the Ninth Circuit reversed, essentially holding that the CDA had nothing to do with Doe's claims whatsoever.

In an amended opinion and order, the Ninth Circuit has declined a request for a rehearing en banc in Dariano v. Morgan Hill Unified School District. Judge Diarmuid O'Scannlain and two other judges wrote a dissent to the denial for an en banc rehearing.

What Happened

Here's a refresher: On May 5, 2010 (Cinco de Mayo), a group of students wore T-shirts with American flags on them to Live Oak High School in Morgan Hill, California. The shirts appeared to be designed to inflame Mexican-American students at the school; there was a history of tension between white and Hispanic students. The students wearing T-shirts went home that day rather than turn their shirts inside-out as instructed by school officials; after they left, they received threats from other students.

The only thing I know about NCIS is that my mom loves it (the TV show, that is). And I love to see Mark Harmon working a steady job.

But today, the Ninth Circuit ruled that the real-life NCIS exceeded the scope of its authority by investigating civilian child pornography. Cue David Caruso. Oops, wrong show.

Yesterday, a three-judge panel of the Ninth Circuit heard the long-awaited arguments in same-sex marriage cases out of Idaho, Nevada, and Hawaii. And if you were expecting anything other than downright skepticism of states' arguments from the judges, well, you haven't been paying attention.

Monte Neil Stewart was the primary recipient of the judges' questions. The private attorney first represented Idaho, then pinch hit in Nevada's case for intervenors, since the state declined to defend its laws in the wake of the Ninth Circuit's Smithkline Beecham v. Abbot Labs ruling.

Barring some sort of divine intervention, the liberal three-judge panel is pretty much guaranteed to follow the Tenth, Fourth, and Seventh Circuits' leads and rule in favor of gay marriage in all three states.

Where the Eleventh Circuit dismissed a claim under the Alien Tort Claims Act last month, the Ninth Circuit -- under different, but similar, circumstances -- reversed a dismissal. The case before the Ninth Circuit was originally filed by former child slaves forced to harvest cocoa in Ivory Coast. The defendants were Nestle USA, Cargill, and Archer Daniels Midland -- all American food companies that made chocolate products from Ivory Coast cocoa.

Like the victims in the "Chiquita terror" cases, the child slaves from Ivory Coast alleged that the American companies provided assistance to farmers employing slave labor in an attempt to keep costs down.

And then there were three.

While the Ninth Circuit originally had challenges to four states' gay marriage bans lined up for oral argument, Oregon's case came to an unsurprising end last week, when the Ninth Circuit dismissed the National Organization for Marriage's appeal of a denied motion to intervene. Since none of the actual parties to the case appealed, the court dismissed the case as well.

That leaves us with three states: Hawaii, Nevada, and Idaho, all of which are set for marathon oral arguments on Monday at 1 p.m. Pacific Time.

Read on for more information on the court's live video stream of the arguments as well as the judges who will hear those arguments.

In case of what Chief Judge Alex Kozinski called "we said, he's dead," the Ninth Circuit affirmed in part and reversed in part a district court's finding that police were not liable for the death of Cesar Cruz, who was shot and killed by Anaheim police officers in 2009.

Sheriff's deputies at the Long Beach jailhouse understandably don't want drugs circulating around the facility. So when Mark Fowlkes was brought in on drug and weapons charges, and officers allegedly peeped a portion of a plastic baggie poking out of his rectum, they were understandably concerned.

Their response, however, crossed the line into a Fourth Amendment violation when they Tased him, five officers held him down, and Sgt. Michael Gibbs, with gloved hands, used his thumb and forefinger to remove a bloody, golf ball-sized bag from Fowlkes' rectum.

The Ninth Circuit, holding that the evidence should be suppressed, called the search "brutal and physically invasive," as well as "degrading and dangerous."

This was a ruling nearly 20 years in the making, but is the battle actually over?

Back in 1997, a Hare Krishna group challenged a new panhandling ordinance at the Los Angeles International Airport (LAX). The ordinance prohibits in-person solicitation or sales in the name of religion or charity, but leaves open the door to distributing envelopes for mail-in or online donations at a later time. The new ordinance followed from a ban on all free speech activity, struck down by the U.S. Supreme Court in 1987.

Even the 1997 ban seemed to be on shaky ground for a while -- an injunction blocked its enforcement until 2010, when the California Supreme Court, responding to a certified question from the Ninth Circuit, ruled that the ban did not violate the "liberty of speech" clause of the state constitution. That ruling, plus last week's ruling on the First Amendment issue, mean the ban has now survived all of the legal challenges before it... unless the Hari Krishnas reach out to the highest (legal) power -- the U.S. Supreme Court, which upheld a near-identical ban 12 years ago.

Remember Burnham v. Superior Court? That's the one where a defendant was personally served in California while traveling there on business. The U.S. Supreme Court upheld personal service due to transient presence in the forum state ("tag jurisdiction") as legitimate on its own, without requiring any of the "sufficient minimum contacts" nonsense of International Shoe.

Here's a law school hypothetical for you: What if an officer of a foreign corporation is personally served in the forum state? Does that grant a court personal jurisdiction over the corporation? No it doesn't, said the Ninth Circuit Court of Appeals in Martinez v. Aero Caribbean.