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

9th Circuit August 2013 News

Ban on Gay 'Conversion' Therapy Constitutional

Last October, California became the first state in the nation to prohibit mental health providers from engaging in sexual orientation change efforts (SOCE) with minors. The "conversion" therapies attempt to "cure" individuals of their homosexual and transgender leanings, and have been labeled by many as "quakery," including the state legislature and Governor Brown, who, when signing SB 1172, stated,

"This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."

9th Circuit Ruling Could Set School Shooting Spree Killer Free

In 1998, 15-year-old Kip Kinkel murdered his father and mother before heading to school and turning his guns on his classmates. Two students died, twenty-five were wounded, and Kinkel, after considering an insanity defense, pled guilty and was sentenced to nearly 112 years in prison.

The process leading to the plea deal raises some issues in retrospect. Three weeks before the plea deal was reached, Kinkel's medications for schizophrenia were withdrawn for purposes of a mental health examination. His appeal for a new trial, and an insanity defense, was rejected by the Oregon Supreme Court in 2011.

Montana Firearms Freedom Act Predictably Falls in 9th Circuit

I remember the case vividly from law school. It was a stupid holding. The Supreme Court said that the federal government could regulate wholly intrastate matters, such as growing of wheat for personal use, because even wholly intrastate commerce creates a ripple in interstate commerce.

When word of the Montana Firearms Freedom Act reached my inbox, my first reaction was "Yay, freedom!" Then I read it. There's no way a law that declares that wholly intrastate manufacturing of firearms is outside the scope of Congress' power can stand under commerce clause precedent. Seriously, who writes this stuff? (Apparently, at least nine states have done so, with the express purpose of challenging and changing commerce clause jurisprudence.)

Another AZ Abortion Law Falls; Would've Defunded Planned Parenthood

Three months ago, the Ninth Circuit struck down Arizona's ban on abortions performed after 20 weeks, citing stare decisis that set the line for constitutional restrictions on abortion at the point of viability. Twenty weeks, both sides agreed, was not viable, even though the state and the reluctant concurrence agreed that fetuses, at twenty weeks, could feel pain.

That wasn't Arizona's only controversial restriction on abortion, however. Both the 20-week ban and another law, that prevented Medicaid patients from receiving care from medical providers that perform elective abortions, were passed in 2012, and both are now defunct.

EA Asks 9th for SCOTUS Time Out in Football Video Game Cases

Looks like Electronic Arts is throwing out the red challenge flag. Last month, in a pair of mildly confusing matchups, a panel of the Ninth Circuit tossed NFL Hall-of-Famer Jim Brown's Lanham Act claim, finding that EA's First Amendment rights trumped his right of publicity. In a simultaneously released opinion, they held that former college QB Dustin Keller's right of publicity trumped EA's rights.

The rulings were a bit incongruous, but relied on two different tests, the Rogers test and the "transformative use" test, as well as the difference between state and federal law. In a factually identical case to Keller, earlier this year, the Third Circuit also held that a college player's rights trumped EA's creative expression. Now, EA is seeking a hold on the Ninth Circuit's remand to the district court while it appeals both college cases to the Supreme Court, reports USA Today.

Shark Fin Ban Argued Before 9th Circuit; Feds Step In

The facts of the case aren't too complicated. California, with conservation in mind, banned the sale, possession, and distribution of shark fins within the state. Why? Because most shark fins are obtained via "finning," where a shark is caught, fin removed, and the still-alive shark is dumped in the water to die. The fins also contain mercury, so public heath also factored into the discussion, reports the San Francisco Chronicle.

Shark fin soup, however, is a Chinese delicacy and is often consumed at significant cultural events, such as Chinese New Year celebrations. The Chinatown Neighborhood Association and Asian Americans for Political Advancement sued, seeking an injunction against the ban, but were denied by the district court.

Cal. DNA Databank Case Gets 3rd Look, Thanks to SCOTUS

More than four years ago, Elizabeth Haskell of Oakland, California, was arrested on suspicion of trying to forcibly free another protester, though she was released without charges. At the time of her arrest, she submitted to a DNA swab under threat of additional charges and jail time.

Four years and five months later, her case has now been scheduled for its third trip to the Ninth Circuit, and its second en banc hearing. That's set for December 9, 2013, with the U.S. Supreme Court's holding in Maryland v. King cited as the cause of the delay.

After Post-Descamps Scolding, 9th Still Lost on Sentencing

Here it is again, for those who don't follow our U.S. Supreme Court blog:

"[I]t should be clear that the Ninth Circuit's new way of identifying ACCA predicates has no roots in our precedents. But more: Aguila-Montes subverts those decisions ..."

Whoops. Many lawyers, or courts, after a 23-page bench-slapping from Justice Elena Kagan, would re-examine their path on a certain issue. For the Ninth Circuit, that issue is the incongruence between the elements of state statutes and federal sentencing and immigration policies.

Drug Defendant Has Right to Challenge Drug-Sniffing Dog

An alleged marijuana smuggler was deprived of his right to challenge the reliability of a drug-sniffing dog, the Ninth Circuit ruled Thursday in United States v. Thomas.

Defendant Jonathan Thomas was arrested at a Border Patrol checkpoint with 150 pounds of marijuana in a toolbox. He was then indicted for possession with intent to distribute marijuana in 2010. Then in 2011, a superseding indictment added a charge of conspiracy to distribute marijuana. He was found guilty of both.

In his appeal, Thomas moved to suppress the marijuana on claims that the arresting officer, Agent Christopher LeBlanc, had illegally searched the toolbox.

Graham Applies Retroactively; No Life Without Parole for Juvies

Roosevelt Moore was convicted of 24 charges related to a string of sexual assaults that he committed in 1991, when he was 16. The full list of crimes is too lengthy, and graphic, to list, but suffice it to say that he deserved a lengthy sentence. In fact, his sentence of 254 years wasn't particularly shocking, other than one minor quibble: There is no realistic possibility of parole, unless, in a Methuselah-esque feat, he lives beyond the age of 144.

That sentence, by the way, was based on the judge's agreement with one psychologist who, contrary to the other experts, concluded that Moore lacked the capacity to change. And if you've been paying attention to either the California or the U.S. Supreme Courts, that presents a pretty big problem.

Today, the Ninth Circuit didn't portray Green Day as "American Idiot[s];" instead, they affirmed a lower court's ruling in their favor, reports Reuters.

At issue was Green Day's use of Dereck Seltzer's street art, used in a four-minute video backdrop to one song in Green Day's 2009-10 21st Century Breakdown Tour. Seltzer claimed copyright infringement and violations of the Lanham Act. The district court granted Green Day's motion for summary judgment and awarded attorney's fees.

The Ninth Circuit affirmed the grant of summary judgment on the copyright and Lanham Act claims, but vacated the award of attorney's fees.

Benjamin Franklin said only two things in life are certain: death and taxes. Regarding the latter, one should also add, don't mess with the IRS.

Someone should have told Willena Stargell.

Stargell formed her own business, Liberty Bell Tax Services, performing tax preparation services for clients. Based on evidence presented at trial, the government claimed that Stargell filed fraudulent tax returns, and obtained refund anticipation loans ("RALs") from banks, based on the returns containing false statements. At issue were 143 tax returns, with Stargell seeking a total of $598,657.00 in refunds. The IRS refunded $276,331.47 to Stargell before they caught on.

Pair of Stanford Alums, Munger Tolles Partners, Nominated to 9th

Munger, Tolles & Olson better watch your back, President Obama is continuing his raid on your partners. After an MTO partner, Paul Watford, was nominated and confirmed for the Ninth Circuit last year, President Obama doubled-down this year, nominating two more of the firm’s partners to the circuit court bench, per a press release from the White House.

Their MTO connection isn’t the only thing John B. Owens and Michelle T. Friedland have in common — they both share the Stanford pedigree. Freidland earned both her undergraduate and law degrees from Stanford University, sneaking a Fulbright scholarship to Oxford in between her Cardinal-colored degrees. Owens, on the other hand, went straight from the University of California, Berkeley to Stanford Law (a house divided as we say here in Nor Cal).