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

9th Circuit April 2017 News

Breaking Up the Ninth Circuit Is Hard to Do

After another legal setback, President Trump said Tuesday he was 'absolutely' considering proposals to split the U.S. Ninth Circuit Court of Appeals because of its 'ridiculous rulings' against him.

Trump has repeatedly criticized judges since his first and second travel bans were overruled, and spewed more of the same after the latest decision knocking down his order against sanctuary cities. He said his opponents were "judge shopping" because of the circuit's reputation as a liberal jurisdiction.

"There are many people that want to break up the Ninth Circuit," he said. "Everybody immediately runs to the Ninth Circuit because they know, that's like, semi-automatic."

While Trump's tirade is new, the call to reorganize the Ninth Circuit is not. Republicans have been complaining about the "Ninth Circus" since Jimmy Carter was president.

Cell Phone Warning Law Upheld for City of Berkeley

A divided federal appeals court has upheld Berkeley's law requiring cell phone retailers to display warnings about radio frequency radiation in the devices.

In CTIA v. City of Berkeley, the U.S. Ninth Circuit Court of Appeals gave a win to the city, which passed the law to tell people about the danger of putting cell phones in their pant pockets or bras. But it is a loss for wireless retailers -- and a puzzle for free speech advocates -- because the law compels a disclosure that they claim is not true.

"Berkeley's compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure," Judge William Fletcher wrote. "Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it."

Appellate Judge John Noonan Remembered

Like other accomplished jurists who have passed on, Judge John T. Noonan, Jr. left a legacy of decisions that will live on in American jurisprudence.

Some may recall his opinion in a landmark decision to uphold physician-assisted suicide, ultimately adopted by the U.S. Supreme Court. Others may remember his decision to stay the execution of Robert Alton Harris, who later became the first man to be executed in California in 25 years.

A few may remember the 13 books he wrote on law, history, and religious freedom during his 31 years on the bench. But those who knew him best at the court -- especially his law clerks -- will never forget that he dutifully wrote every opinion himself on yellow legal pads.

C-SPAN to Air Trump Travel Ban Case Live

Anticipating widespread public interest, the U.S. Ninth Circuit Court of Appeals has authorized live television broadcast of arguments over President Trump's travel ban.

C-SPAN will also carry the feed live for other broadcasters on May 15, 2017, from the William K. Nakamura Courthouse in Seattle, Washington. The court will independently stream arguments for internet viewers.

The case, which marks the second time Trump has run afoul of the courts by banning nationals from certain countries, has picked up public steam since Attorney General Jeff Sessions criticized Judge Derrick Watson for blocking the president's orders.

In 1992, California adopted the nation's first anti-SLAPP law, and arguably its strongest. The statute, meant to stop "strategic litigation against public participation," is a powerful weapon against lawsuits that may chill free speech. For example, an anti-SLAPP motion halts discovery, allows for quick appeals, and provides for the award of attorney's fees. It is perhaps the most used anti-SLAPP statute in the country, with a huge body of relevant caselaw.

California's anti-SLAPP statute isn't limited to the Golden State's borders, either. In 1999, the Ninth Circuit ruled that anti-SLAPP motions are available in federal courts. Thus, knowing how to use the law, or how to defend against it, is essential, even to practitioners outside the state lines.

Copyright Preempts Right of Publicity, 9th Circuit Rules

A federal appeals court ruled that federal copyright law preempts state-based publicity rights, rejecting claims by former student athletes over photos downloaded from the National Collegiate Athletic Association.

The U.S. Ninth Circuit Court of Appeals said the Copyright Act protects the photographers' copyrights, which cannot be trumped by state laws protecting people who are photographed. In Maloney v. T3Media, the appeals court said the plaintiffs sought to "control the artistic work itself" by suing the distributor over copyrighted images.

"Because plaintiffs seek to hold T3Media liable for exercising rights governed exclusively by copyright law, the claims are preempted by section 301 of the Copyright Act," Judge Milan D. Smith, Jr. wrote for the unanimous court.

Joann Davis was an elderly widow of an Apollo engineer trying to hawk an extra-terrestrial rock when she wound up in trouble with the space agency. After Davis contacted the agency for help selling the rice-sized rock, in part to cover her son's medical bills, NASA organized a sting, detaining Davis in a Denny's parking lot, and declining to let her use the restroom, even as she wet herself.

Davis sued NASA, for a detention that was "unreasonably prolonged and unnecessarily degrading," in violation of the Fourth Amendment. And that suit can go forward to resolve genuine issues of material fact surrounding the lawfulness of her detention, the Ninth Circuit ruled last Thursday.

Court Ruling Makes DMCA 'Safe Harbor' Less Safe

A federal appeals court reversed a trial court that said an internet publisher was protected from copyright infringement under the safe harbor of the Digital Millennium Copyright Act.

The U.S. Ninth Circuit Court of Appeals said common law agency rules apply to copyright violations, and returned the case to the trial judge for more discovery. According to the circuit court, the safe harbor would apply if the infringing photos were posted by users, but not if the site's moderators acted as agents for the publisher in Mavrix Photographs v. LiveJournal.

"Whether these photographs were truly 'posted at the direction of the user,' or instead whether LiveJournal itself posted the photographs, depends on whether the acts of the moderators can be attributed to LiveJournal," Judge Richard A. Paez said for the court.

The appeals court then vacated the trial court's order denying discovery and remanded the case for further proceedings.

Dividing pensions and retirement benefits is rarely a simple task, as many family law practitioners can attest. When it comes to splitting up retirement assets, attorneys must navigate challenging issues that require a thorough understanding of a particularly complex area of law.

Fortunately, you don't have to struggle through the process alone. An upcoming program by The Rutter Group, Dividing Pension and Retirement Benefits, can help even the most experienced family law attorneys deal with the complexities of pension and retirement benefit division -- and making a difficult, tricky area of law a bit easier.

Trial Judge at Fault for Dismissing Case Against Defendant Who Was Never Served

Over a dissent's claim that it was unfair to reopen a four-year-old case, the Ninth Circuit said a trial judge was at fault and not the plaintiff for dismissing the case against a defendant who had never been served.

The U.S. Ninth Circuit Court of Appeals reversed the case because the trial judge improperly dismissed Joseph Gordwin, a former FBI officer, before time for service had expired. Carl West had sued the United States and Gordwin separately, but had not served the FBI agent by the time the government successfully moved to dismiss.

"Gordwin is in the exact same position he was in prior to the district court's error and this ensuing appeal: waiting for West to serve him," Judge Alex Kozinski wrote for the court in West v. United States.

9th Circuit Sets Hearing for Trump's Revised Travel Ban

A federal appeals court has set a hearing next month to review President Trump's second travel ban.

After a federal judge in Hawaii blocked the President's orders, the Trump administration asked the U.S. Ninth Circuit Court of Appeal to expedite the matter. The appellate court has agreed to hear arguments on May 15, 2017.

Trump's latest order revised a broader travel ban that the appeals court turned back in February. Rather than continue his appeal to the U.S. Supreme Court, however, Trump issued a second, narrower ban. But Hawaii sued, saying it was unconstitutional just like the first one.

"We cannot fault the president for being politically incorrect, but we do fault him for being constitutionally incorrect," said state Attorney General Douglas Chin.

Urban Outfitters, the specialty retail chain geared towards hip teens, has a bit of a reputation for ripping off others' designs. It's not hard to find an artist who claims that the chain has picked up their designs -- sans permission, of course -- turning their art prints into miniskirts or their necklaces into knockoffs.

Now, at least one allegedly wronged party has gotten some justice. On Monday, the Ninth Circuit upheld a district court's ruling (on summary judgement no less) that UO had infringed on a fabric company's copyright, selling a textile that was a "near duplicate" of the original.