Articles Posted in Constitutional Law

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Plaintiffs filed suit against a police officer, the police chief, and the city after the officer shot and killed Fridoon Nehad. The Ninth Circuit affirmed the district court's grant of summary judgment with respect to the Fourteenth Amendment claims, reversed with respect to the remaining claims, and remanded. The panel held that triable issues remain regarding the reasonableness of the officer's use of deadly force, specifically (1) the officer's credibility; (2) whether Nehad posed a significant, if any, danger to anyone; (3) whether the severity of Nehad's alleged crime warranted the use of deadly force; (4) whether the officer gave or Nehad resisted any commands; (5) the significance of the officer's failure to identify himself as a police officer or warn Nehad of the impending use of force; and (6) the availability of less intrusive means of subduing Nehad. The panel held that these factual questions precluded a grant of summary judgment based on qualified immunity, because it was well established at the time that the use of deadly force under the circumstances was objectively unreasonable. The panel also held that plaintiffs presented sufficient evidence of police department customs, practices, and supervisory conduct to support a finding of entity and supervisory liability, and the district court never afforded plaintiffs an opportunity to be heard before granting summary judgment on the negligence and wrongful death claims sua sponte. View "Nehad v. Browder" on Justia Law

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The Ninth Circuit vacated the district court's order dismissing a 42 U.S.C. 1983 action brought by plaintiff, a state prisoner, for failure to pay the required filing fee. The district court concluded that at least three of plaintiff's prior actions were dismissed based on failure to state a claim or because they were frivolous. Therefore, the district court held that 28 U.S.C. 1915(g) barred plaintiff from bringing this action in forma pauperis. The panel held, however, that one of plaintiff's previous actions was not dismissed for a qualifying reason under section 1915(g). The previous action was dismissed for lack of standing and dismissal for lack of standing is a dismissal for lack of subject matter jurisdiction, which was not a ground enumerated in section 1915(g). Therefore, the panel remanded for further proceedings. View "Hoffmann v. Pulido" on Justia Law

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The Ninth Circuit vacated the district court's grant of a preliminary injunction against enforcement of the city's Dress Code Ordinance -- which required that the dress of employees, owners, and operators of Quick-Service facilities cover "minimum body areas" -- and the amendments to the Lewd Conduct Ordinances. The panel held that plaintiffs, owners and employees of a bikini barista stand, failed to show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim. The panel held that the activity the Lewd Conduct Amendments prohibit is reasonably ascertainable to a person of ordinary intelligence, and the Amendments were not amenable to unchecked law enforcement discretion. The panel also held that the Dress Code Ordinance is not open to the kind of arbitrary enforcement that triggers due process concerns, and thus the vagueness doctrine does not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. Furthermore, plaintiffs have not demonstrated a "great likelihood" that their intended messages related to empowerment and confidence will be understood by those who view them, and thus the mode of dress at issue in this case is not sufficiently communicative to merit First Amendment protection. Finally, the panel held that the district court's application of intermediate scrutiny under the "secondary effects" line of authority was inapposite because that doctrine applies to regulations that burden speech within the ambit of the First Amendment's sphere of protection. In this case, the Dress Code Ordinance does not burden expressive conduct protected by the First Amendment, and thus the City need only demonstrate that it promotes a substantial government interest that would be achieved less effectively absent the regulation. The panel remanded for further proceedings. View "Edge v. City of Everett" on Justia Law

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The Ninth Circuit affirmed the district court's judgment for the union in an action challenging the STA's decision not to run a proposed advertisement from the union on STA's buses. The panel held that the STA rejected the proposed ad in violation of the union's First Amendment rights, and declined to adopt the First and Sixth Circuit's approach of giving deference to a transit agency's application of its advertising policy. The panel designated a transit agency's advertising program to be limited public forums because the panel recognized the legitimate concerns with transportation services and safety. Applying the three-part test to review STA's decision to exclude the union's ad under "public issue" advertising, the panel held that the policy was reasonable in light of the forum; STA's standard lacked objective criteria to provide guideposts for determining what constitutes prohibited "public issue" advertising; and STA's application of its "public issue" advertising ban to exclude the union's proposed ad was unreasonable. Finally, the panel held that STA unreasonably applied its commercial and promotional advertising policy to reject ATU's ad. View "Amalgamated Transit Union v. Spokane Transit Authority" on Justia Law

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The Ninth Circuit affirmed the district court's denial of CTIA's request for a preliminary injunction seeking to stay enforcement of a city ordinance requiring cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed FCC guidelines for exposure to radio-frequency radiation. The panel held that CTIA has little likelihood of success on its First Amendment claim that the disclosure compelled by the ordinance is unconstitutional under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), where the disclosure was reasonably related to a substantial government interest and was purely factual and uncontroversial; the ordinance complements and reinforces federal law and policy, rather than conflicted with it; CTIA failed to establish irreparable harm based on preemption; and the balance of the equities favors the City and the ordinance is in the public interest. Therefore, the panel held that the district court did not abuse its discretion in denying preliminary injunctive relief to CTIA. View "CTIA - The Wireless Association v. City of Berkely" on Justia Law

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The Ninth Circuit reversed the district court's denial of a motion for a new trial in a 42 U.S.C. 1983 action brought by a state inmate alleging that he was shackled without justification during his three-day trial on his Eighth Amendment excessive force and deliberate indifference to medical needs claims. The panel held that the district court abused its discretion in denying a new trial where the inmate's dangerousness and flight risk were central issues at the trial. Therefore, the district court plainly erred in allowing him to be visibly shackled without any showing of a sufficient need for such restraints. The panel remanded and held that the district court had the discretion to impose shackling during the new trial on if it could do so after a full hearing at which the officers showed a compelling need for security and the district court had considered less restrictive alternatives. View "Claiborne v. Blauser" on Justia Law

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The Ninth Circuit affirmed the district court's denial of habeas relief under 28 U.S.C. 2254 on petitioner's claims relating to his first degree murder conviction and death sentence. The panel held that Rule 32.2(a) of the Arizona Rules of Criminal Procedure is independent of federal law and adequate to warrant preclusion of federal review. Therefore, the panel may not review petitioner's judicial bias claim unless he establishes cause and prejudice. In this case, petitioner failed to demonstrate cause to overcome the procedural default of his claim and the panel need not address prejudice. The panel also affirmed the district court's denial of petitioner's ineffective assistance of counsel claim, because trial counsel did not perform deficiently by not moving for a judge's recusal and appellate counsel's failure to raise issues on direct appeal did not constitute ineffective assistance when appeal would not have provided grounds for reversal. Furthermore, petitioner did not establish cause and prejudice to overcome the procedural default of his Brady claim; the panel lacked jurisdiction to review the denial of petitioner's Rule 60(b) motion; challenges to the jury instructions denied; and remaining claims of ineffective assistance of counsel and sentencing claims rejected. View "Martinez v. Ryan" on Justia Law

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Transgender individuals who serve in the military or seek to do so, joined by the State of Washington, filed suit alleging that the August 2017 Memorandum, implementing President Trump's Twitter announcement that transgender individuals would not be allowed to serve in the military, unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum and defendants appealed. In the meantime, the then-Secretary of Defense studied the issue and produced a report recommending that the President revoke the 2017 Memorandum in order to adopt the report's recommendation. The President revoked the 2017 Memorandum and authorized the Secretary to implement the policies in the report (the 2018 Policy). Defendants then requested that the district court resolve the preliminary injunction on the basis of the new 2018 Policy. The Ninth Circuit vacated the district court's order striking defendants' motion to dissolve the preliminary injunction and remanded to the district court for reconsideration. In light of the Supreme Court's January 22, 2019 stay of the district court's preliminary injunction, the panel stayed the preliminary injunction through the district court's further consideration of defendants' motion to dissolve the injunction. Furthermore, the panel issued a writ of mandamus vacating the district court's discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984). View "Karnoski v. Trump" on Justia Law

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The Ninth Circuit reversed the district court's dismissal of the complaint for failure to state a claim under the Telephone Consumer Protection Act. Plaintiff alleged that Facebook used automated telephone dialing systems (ATDS) to alert users, as a security precaution, when their account was accessed from an unrecognized device or browser. However, plaintiff was not a Facebook customer and his repeated attempts to terminate the alerts were unsuccessful. The panel held that plaintiff's allegations under the Act were sufficient to withstand Facebook's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In this case, the messages plaintiff received were automated, unsolicited, and unwanted. As to the constitutional issue, the panel joined the Fourth Circuit and held that a 2015 amendment to the Act, excepting calls "made solely to collect a debt owed to or guaranteed by the United States," was content-based and incompatible with the First Amendment. The panel severed the newly appended "debt-collection exception" as an unconstitutional restriction on speech. Therefore, the panel remanded for further proceedings. View "Duguid v. Facebook, Inc." on Justia Law

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The Ninth Circuit filed an order withdrawing the original opinion and issued a new opinion affirming the district court's denial of petitioner's habeas corpus petition challenging his capital sentence for two first-degree murders. The panel held that petitioner was not entitled to relief on his Eighth Amendment claim against arbitrary and capricious sentencing, because he could not show that the jury's consideration of the facts that he poisoned a witness's dogs and threatened her property had a substantial and injurious effect on the jury's decision to impose the death penalty. The panel also held that petitioner has not presented clear and convincing evidence to rebut the California Supreme Court's finding that he validly waived his state habeas exhaustion petition. View "Kirkpatrick v. Chappell" on Justia Law