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

9th Circuit August 2014 News

Officers Need Warrant to Extract Drugs From Man's Rectum

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."

LAX Solicitation Ban Stands; Battle With Hare Krishnas Over?

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.

No Personal Jurisdiction on Corp. by Serving Executive: 9th Cir.

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.

Tablet Fire Sale Leads to Shrinkwrap/Clickwrap/Browsewrap Confusion

A few years back, a firestorm hit the Internet -- and by a firestorm, I mean a fire sale. A tablet, with specifications on par with the high-end Apple and Android devices of the time, priced at $499.99 to $599.99, would go on sale for as low as $99, as HP had decided to scrap its Touchpad line a mere month after it launched.

Unsurprisingly, every retailer in the world sold out of Touchpads within hours. HP's now-dead tablet was the second-best seller of the year behind the iPad. And a few disgruntled customers, who had placed orders online, were left with nothing but sadness and a cancellation email when retailers like Barnes & Noble oversold their inventory.

Well, sadness and a lawsuit, that is. And an interesting issue of shrinkwrap/clickwrap/browsewrap contracts.

Guard Can't Read Legal Mail From Prisoner to Attorney: 9th Cir.

Prisoners' mail is almost always subject to being opened and read thoroughly by prison officials looking for contraband, which can include attempting to exchange information between gang members, for example. Legal mail, on the other hand, is supposed to be sacrosanct: Guards aren't supposed to open mail marked "legal mail" unless they suspect it's not legal mail; and even then, they can't read it that thoroughly.

Last week, the Ninth Circuit allowed a case to proceed in which a guard went well beyond scanning legal mail to make sure it's really legal mail. In a dissent, Judge Jay Bybee said that a single instance of a prisoner's mail being read one time doesn't amount to a constitutional injury.

In July, a three-judge panel of the Ninth Circuit ruled in favor of the Arizona Dream Act Coalition, a group challenging an Arizona law that prohibited some immigrants from getting Arizona driver's licenses.

Yet, the law continues to be enforced against the very people who successfully challenged the law. Read on to find out why, and what they are doing about it.

Jimi Hendrix Infringer Experiences 'Crash Landing' at 9th Cir.

A lawsuit over the licensing rights to Jimi Hendrix's likeness in Washington state threatened to place many undergraduate dorm rooms' decoration decisions in jeopardy. Thankfully, the Ninth Circuit stepped in to resolve the dispute so that there will be no shortage of Hendrix posters in college towns across America come move-in day.

Experience Hendrix owns Jimi Hendrix's post-mortem publicity rights in Washington state, and other Hendrix trademarks nationally. It licenses these to people like Andrew Pitsicalis, who create or license original art featuring depicting Hendrix. Pitsicalis, in turn, began licensing this artwork to others and also bought the domain names hendrixlicensing.com and hendrixartwork.com.

NCAA Players Can Profit From Video-Game Likenesses: Dist. Court

The NCAA has been on the receiving end of a lot of criticism lately -- and rightly so. The NCAA, which has a stranglehold on the top college sports in the United States, sets out rules based on the fiction that college athletes are students first and athletes second, and that they play college sports simply for the love of the game. The rules are also based on the fiction that college sports are not a business. In the meantime, college athletes aren't permitted to earn any money from their athletic skills outside the scholarships their schools offer.

Former UCLA basketball star Ed O'Bannon represents a group of college athletes who are a little peeved that NCAA is making literally millions of dollars licensing their likenesses to anyone with a pulse, including TV stations, merchandise manufacturers, and video game companies. On Friday, Judge Claudia Wilken of the U.S. District Court of the Northern District of California agreed, finding the NCAA's rules were an unreasonable restraint on trade.

ACA Doesn't Violate Medical Autonomy, Preempts Ariz. Law: 9th Cir.

Another day, another challenge to the Affordable Care Act.

Plaintiffs Nick Coons and Eric Novack were represented in District Court by the Goldwater Institute. (You know where this is headed.) They object to the Affordable Care Act for three reasons: (1) the individual mandate is bad and they don't like it; (2) they don't like the establishment of an advisory program that issues Medicare budget recommendations; and (3) the ACA violates their right to medical autonomy. Oh, and they also claim that an Arizona Health Care Freedom Act, one of many such acts passed in other states, purports to invalidate the ACA individual mandate in Arizona.

Gee, I wonder how this will go.

Rev. Robert Schuller Loses Crystal Cathedral Bankruptcy Appeal

In 1955, the Rev. Robert Schuller established Garden Grove Community Church in an old drive-in theater in Orange County, California. Over the next 50 years, the "community" church became a megachurch called Crystal Cathedral, from which Schuller broadcast a show called "Hour of Power." At its height, "Hour of Power" was seen by 1.3 million people in 156 countries, according to The Huffington Post.

That all changed in 2010 when Crystal Cathedral filed for bankruptcy in the face of a $36 million mortgage and $7.5 million it owed to different vendors. In 2011, Crystal Cathedral got some help from the sale of its 40-acre property to the Catholic Church diocese in Orange County.

Can Religious Pharmacists Refuse to Stock Plan B Pills?

Under Hobby Lobby, a closely held corporation with religious objections can refuse to pay for insurance coverage for birth control and instead request an exemption from the Affordable Care Act's so-called "birth control mandate."

Does that logic extend to pharmacists and retailers who refuse to stock such pills? It would seem to, and a group of pharmacists just filed a brief advancing that point in an appeal by the State of Washington in the Ninth Circuit, where the state is seeking to have its birth control retail regulations upheld. The regulations require retailers to stock "Plan B" and "ella" drugs, rather than refer patients to other pharmacies, even if selling these drugs conflicts with the small business owners' religious beliefs.

Did Mass Murderers File a Motion in the Tech Anti-Poaching Suit?

It's Friday, which means my ability to take anything seriously is absolutely nearing it end. I'm running on fumes here.

Fortunately, eight federal inmates, including three infamous convicted murderers, have supposedly filed a handwritten motion to intervene in the Silicon Valley anti-poaching class action lawsuit. You know, the one where CEOs of major tech companies sent emails back-and-forth, agreeing not to poach each other's staff? The one that reached a settlement agreement for pennies, despite the smoking gun evidence?

The settlement is currently sitting on U.S. District Court Judge Lucy Koh's desk. Sitting next to it is this handwritten motion -- and in the trashcan nearby, there's another motion that was filed using a California attorney's stolen identity.

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