9th Circuit November 2011 News

If you - or your clients - have long dreamed of packing heat on the Alameda County Fairgrounds, you could be in luck. On Monday, the Ninth Circuit Court of Appeals agreed to reconsider its 1999 ruling that an Alameda gun ban on county property was constitutional as long as it did not impose a “substantial burden” on the right to bear arms.

Plaintiffs Russell and Sallie Nordyke aren’t challenging the law to form a fairground militia or bring a handgun to a carnival; they just want to host gun shows at the fairground.

The Ninth Circuit Court of Appeals ruled last week that grizzly bears still need endangered species protection from the federal government until the U.S. Fish and Wildlife Service can demonstrate a rational connection between its research on the bear population and a proposal to lift the protection.

Grizzly bears may seem tough, but the U.S. Fish and Wildlife Service has classified them as "threatened" since 1975. For much of the 20th century, Yellowstone National Park's grizzly population fed at the trough of open-pit garbage dumps. The dumps were a fast-food stop for bears, and a convenient bear-viewing opportunity for tourists.

ProtectMarriage has been enjoying favorable court rulings this month. Last week, the California Supreme Court ruled that the group has standing to continue its challenge to a federal court decision finding California Prop 8 unconstitutional; this week, the Ninth Circuit Court of Appeals granted the group's motion to consolidate its challenges before the appellate court.

ProtectMarriage is litigating California Prop 8 on two fronts: constitutionality and judicial misconduct. After marriage equality advocates sued and won an injunction against the enforcement of Prop 8, ProtectMarriage stepped into the state's shoes to defend the ballot initiative.

In a separate appeal, the group is alleging that now-retired-Judge Vaughan Walker, who presided over the trial, committed judicial misconduct by refusing to recuse himself from the trial because he is gay.

Oh no! Peaceful protesters have invaded UC Davis to sit on the campus quad as part of the nationwide Occupy Wall Street protests. Clearly, there is only one response for such a "threat." Pepper spray.

Our knowledge of police officer training is limited to the Police Academy movies - which probably aren't accurate - so we're not going to pretend to know what aspiring officers are told about breaking up a peaceful protest. We're case law nerds: all we can tell you is that, according to the Ninth Circuit Court of Appeals, pepper spraying peaceful protesters is probably a bad idea.

The case on point? Headwaters Forest Defense v. County of Humboldt.

The Ninth Circuit Court of Appeals ruled today that Revett Silver Company can move forward with plans to build and operate a copper and silver mine in northwest Montana, part of which will be located on land managed by the U.S. Forest Service.

Revett’s plans had been on hold as opponents pursued claims under the Endangered Species Act (ESA) that the proposed mine would endanger the bull trout and grizzly bear populations in the area.

Though the Fish and Wildlife Service had issued two biological opinions that concluded that the mine would result in “no adverse modification” to the bull trout habitat, and “no jeopardy” to the grizzly bear population, Rock Creek Alliance challenged that the opinions were arbitrary, capricious, and in violation of the ESA.

The California Supreme Court ruled this morning that ProtectMarriage has standing to challenge retired Judge Vaughn Walker’s 2010 ruling striking down California Prop 8. The case will now return to the Ninth Circuit Court of Appeals for a determination on the constitutionality of the law.

Prop 8 standing is a critical issue in California’s ongoing same-sex marriage debate because Gov. Jerry Brown and Atty. Gen. Kamala Harris refused to appeal Judge Walker’s decision. A state’s Attorney General typically takes responsibility for defending a state’s laws, but Harris and Brown opted not to defend Prop 8 because they agreed with Judge Walker’s ruling that the law was unconstitutional.

Former President Bill Clinton's grand jury testimony will always be remembered for existential musings on a two-letter word. Years later, cases can still turn on what the meaning of "is" is.

Case in point: This Ninth Circuit Court of Appeals immigration removal case also employs the what-is-is argument.

Juan Gutierrez is a 70-year-old native and citizen of Mexico who entered the United States sometime between 1969 and 1971. In October 2001, Gutierrez received a Notice to Appear, charging him with being removable as an alien who was present in the United States without being admitted or paroled. Gutierrez conceded his removability, but requested registry, cancellation of removal, and voluntary departure, citing his good moral character.

Four high school students from Morgan Hill, Calif. lost a federal lawsuit this week over American flag T-shirts. The students claimed that school administrators violated their free speech rights by asking them to change clothes or take excused leave from class after they wore American flag T-shirts to school on Cinco de Mayo.

The plaintiffs argued that their First Amendment rights were suppressed and that they were denied equal protection because they were treated differently than students wearing Mexican flags and colors the same day.

The Don't Ask Don't Tell (DADT) case is officially over.

Sure, you may have thought that the case ended when the Obama Administration certified the DADT repeal in September, (and the Ninth Circuit Court of Appeals declared the issue moot), but the Log Cabin Republicans continued to litigate until this week.

On Wednesday, the Ninth Circuit issued an order denying en banc rehearing in the case. The Log Cabin Republicans have indicated that they will not file further appeals in the case.

For the third consecutive month, President Obama has announced a nominee to the Ninth Circuit Court of Appeals. This time, the honor goes to Arizona Supreme Court Justice Andrew Hurwitz.

Since Obama has nominated a lot of judges in the last few months, we've figured out the formula for garnering a Circuit Court of Appeals spot: federal clerkship + private practice + public sector + academia = nomination. Let's see if Justice Hurwitz adds up.

Doctors' "orders" do not trump federal law and Supreme Court precedent.

The Ninth Circuit Court of Appeals ruled this week that a medical marijuana prescription is not an "order" to smoke pot, and does not excuse a releasee from Federal Controlled Substances Act (CSA) violations.

Roshaja Harvey served approximately 10 years in prison for armed bank robbery. Afterwards, he began a five year term of supervised release. Among the mandatory conditions of his supervised release, Harvey was ordered to "refrain from any unlawful use of a controlled substance."

Retired Judge Vaughn Walker is a hot topic around the Ninth Circuit Court of Appeals.

Last week, we told you about the debate in the Ninth Circuit over the release of Judge Walker’s Prop 8 trial tapes. This week, the big debate is about whether Judge Walker committed judicial misconduct by refusing to recuse himself from the trial because he is gay.