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9th Circuit September 2014 News

En Banc Granted in Ariz. Judge's Campaign Funding Case

Arizona elects its judges in counties with fewer than 250,000 people (everywhere but Maricopa, Pima, and Pinal counties). It also has a Code of Judicial Conduct that restricts how both incumbent and prospective judges campaign for office.

What's prohibited? Try everything, as long as its campaign-related. More specifically, that'd be: giving speeches on behalf of others, endorsing others, soliciting money for others, campaigning for others, and a ban on solicitation of funds for your own campaign. Have no friends, or opinions, and pay out of pocket, essentially.

Randolph Wolfson, a 2008 candidate who lost, challenged these rules and lost in federal district court. However, the Ninth Circuit, in a 2-1 opinion, held that all five prohibitions were unconstitutional as applied to non-judge candidates. On Friday, the full Ninth Circuit granted an en banc rehearing of the case.

High Roller's Suit Against Wynn Over Unpaid Debts Can Proceed

In 2010, German gambler Konstantin Zoggolis had taken out credit from the Wynn casino in Las Vegas to the tune of about $1.3 million. Wynn said it was time to pay up; Zoggolis couldn't pay. I know you're thinking: "Why would Zoggolis sue Wynn? These were his debts! Of course he should have to pay them!" But there's more going on here.

The Nevada Gaming Commission allows a gambling patron to "self limit his access to the issuance of credit." Basically, a compulsive gambler can tell the casino, "No matter how much I ask, don't lend me any more money." Wynn and Zoggolis had an agreement that Wynn couldn't loan him any more than $250,000, but in spite of this agreement, the casino loaned him $1.05 million more in September and October 2010.

5 Judges Issue 3 Dissents From Habeas Grant to Interrogated Teen

Yesterday, we (again) brought you the tale of Tio Sessoms, a then-teenaged suspect who kinda-sorta asked for counsel. The en banc Ninth Circuit, on its third take on the case, granted habeas relief for the second time, after a Supreme Court cert. grant and summary reversal.

This time, a majority of the Ninth Circuit held that Sessoms' two statements ("There wouldn't be any possible way that I could have a -- a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.") were an unambiguous exercise of his right to counsel.

Chief Judge Alex Kozinski "reluctantly" dissented. Four other judges also dissented across two more opinions.

Why? One word: deference.

On SCOTUS Remand, Teen Gets Habeas Relief From En Banc 9th Cir.

In 1999, a then-19-year-old burglary and murder suspect named Tio Dinero Sessoms was interrogated by police officers. They did not advise him of his Miranda rights, and after a bit of overly polite small talk, Sessoms stated, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"

The detectives began to parry his question, which led Sessoms to meekly mention that his father "asked me to ask you guys ... uh, give me a lawyer."

If that was an unambiguous request for counsel, questioning should have stopped. But the trial court and California appellate courts held that the two statements were not unambiguous (the first was a question, the second was a statement about his father's advice) and let his subsequent incriminating statements into the trial and his conviction to stand.

Now, on its third take on the case, an en banc Ninth Circuit has granted habeas relief.

3 Questions After Model Mayhem's CDA Sec. 230 Immunity Denial

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.

3 Judges Dissent From 9th Cir. En Banc Denial in School Speech Case

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.

9th Cir. Tosses Out Evidence in Case of NCIS Overreach

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.

States' Arguments Against Gay Marriage Unsurprisingly Unconvincing

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.

9th Cir. Allows Child Slave Labor Suit Against Nestle

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.

Gay Marriage at the 9th Cir.: Oral Argument Preview for ID, NV, HI

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.

9th Cir: Judge Kozinski Skeptical of Officer-Involved Shooting

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.