9th Circuit Civil Rights Law News - U.S. Ninth Circuit
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Eddie Bauer, the struggling outdoor retailer, got some more bad news last Friday, when the Ninth Circuit ruled that a consumer's ADA lawsuit against the company had been wrongly dismissed. Chris Kohler, a disabled man who relies upon a wheelchair for mobility, had sued Eddie Bauer for violations of the ADA.

The district court had concluded that Kohler needed expert opinions to determine whether conditions constituted ADA barriers. That's wrong, the Ninth Circuit ruled, emphasizing that non-expert estimations are perfectly acceptable in ADA suits.

Seattle's prohibition of bus-side advertisements criticizing funding of the Israeli military doesn't violate the advertisers' free speech, the Ninth Circuit ruled last Wednesday. The ads, sponsored by the Seattle Mideast Awareness Campaign, had originally been accepted by the bus authority, but were rejected after public controversy. The ads were to read "Israeli War Crimes -- Your Tax Dollars at Work."

The Ninth Circuit's finding that the bus program was a limited public forum breaks from rulings in other courts. The Sixth, Third, Second, Seventh and D.C. Circuits have all found similar transit advertising programs to be designated public forums, with significantly strong free speech rights.

A California state law prohibiting "disturb[ing] or break[ing] up any assembly or meeting that is not unlawful in its character" isn't facially unconstitutional, a three-judge panel of the Ninth Circuit has ruled.

On the other hand, the law was unconstitutionally applied to CPR for Skid Row, a homeless rights organization centered in the Skid Row neighborhood of downtown Los Angeles, home to thousands of homeless people.

By now, we know that states and local governments can't unduly burden an individual's right to own a gun. That hasn't stopped governments from coming up with other ways to enact meaningful gun regulations, though.

In addition to making bullets more expensive, cities and states have enacted laws limiting the sizes of magazines. In Sunnyvale, California, the city prohibits anyone from owning magazines that hold more than 10 rounds. The Ninth Circuit today agreed with the district court that a preliminary injunction staying enforcement of the ordinance wasn't warranted.

After losing in front of a Ninth Circuit panel, the States of Idaho and Nevada petitioned the full court for an en banc rehearing in Latta v. Otter. A majority of non-recused active judges didn't vote for en banc hearing.

But that doesn't mean some of them aren't upset! Judges Diarmuid O'Scannlain, Carlos Bea, and Johnnie Rawlinson filed a 24-page dissental arguing that "the same-sex marriage debate is not over" because the Sixth Circuit -- alone among the other circuits to decide the issue -- upheld laws prohibiting same-sex marriage.

For being "America's Toughest Sheriff," a name he invented for himself, Sheriff Joe Arpaio of Maricopa County, Arizona, gets shot down. A lot.

He has the added disadvantage of Arizona's statutes, which try to butt into space occupied by federal law every chance they can get. Once again, a federal court will teach Arizona a lesson in pre-emption.

Free Speech Rights Won't Protect Porn Producers From Condom Law

In 2012, Los Angeles voters passed an initiative requiring adult film performers to wear condoms while filming. This, predictably, drew the ire of porn studios, producers, and stars, all of whom had adhered to a biweekly STD testing protocol to address concerns about the health risks of unprotected sex.

The artists' and studios' main argument was a creative one: a First Amendment free speech right to have condom-free sex on camera. This argument failed at the district court level and again yesterday, with the Ninth Circuit holding that any incidental effects on expression were outweighed by the evils the law was meant to address -- sexually transmitted disease transmission.

After he appeared suspicious at a border checkpoint in California, border patrol agents searched Chad Camou's car, in which they found Alejandro Martinez-Ramirez, an undocumented immigrant. But this case isn't even about Martinez-Ramirez.

Nope. It's about child pornography.

The border patrol agents took Camou's cell phone, then started rifling through it an hour and 20 minutes after his arrest. The agent was looking for evidence of smuggling, but found child pornography instead.

On December 8, the Ninth Circuit heard oral arguments in the case Smith v. Obama, in which a nurse from Idaho, Anna Smith, challenged the NSA's warrantless collection of phone metadata as a violation of the Fourth Amendment.

Yes, there was talk about Smith v. Maryland. Yes, there was talk about the Fourth Amendment. Actually, though, we've seen this movie before. If you can even get to the merits, it's likely a violation and probably distinct from Smith v. Maryland, which was a short-term, targeted investigation. What's more important to this case is whether Anna Smith even has standing to bring the case.

Calif. Concealed Carry Case Gets Sua Sponte En Banc Call

The parties to the case didn't want en banc review. Other non-parties (California Attorney General Kamala Harris and the Brady Campaign) wanted en banc but were denied leave to intervene, because they were non-parties who waited years to jump on board to the case when they could've been part of the case all along.

But not to worry, firearm fearers: En banc is still a strong possibility. Despite nobody with a stake in the case calling for it, at least one of the circuit's many judges called for en banc review sua sponte (H/T to The Volokh Conspiracy.)