Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Constitutional Law
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Plaintiff protested outside the federal courthouse in Portland, Oregon. He alleged that federal officers unlawfully arrested protesters and used excessive force, including by indiscriminately using tear gas against peaceful protesters. Together with other protesters, he brought this action against Defendant, then the Director of the Federal Protective Service’s Northwest Region, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court denied Defendant’s motion to dismiss.   The Ninth Circuit reversed, concluding that no Bivens cause of action is available in this case. Applying the two-step analysis set forth in Egbert v. Boule, 142 S. Ct. 1793 (2022), the panel held that a Bivens remedy could not be extended to this case because it presented a new context, and at least two independent factors indicated that the court was less equipped than Congress to determine whether the damages action should proceed.   The court wrote this case differed from Bivens because (1) Defendant, a high-level supervisor, was of a different rank than the agents in Bivens; (2) Defendant’s alleged actions, which consisted of ordering or acquiescing in unconstitutional conduct, took place at a higher level of generality than the actions of the agents in Bivens; and (3) the legal mandate under which Defendant acted differed from that of the agents in Bivens in that Defendant was directing a multi-agency operation to protect federal property and was carrying out an executive order. Allowing a Bivens action to proceed in this case could expose sensitive communications between Defendant and other high-level executive officers. View "MARK PETTIBONE, ET AL V. GABRIEL RUSSELL, ET AL" on Justia Law

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One week after an armed robbery of a Sprint store in Los Angeles, Defendant was stopped and frisked by the Los Angeles Police Department (LAPD). A handgun was recovered from the car and later introduced at Defendant’s trial as the weapon used in the Sprint store robbery. Defendant was convicted of Hobbs Act robbery and conspiracy to commit robbery and brandishing a firearm.   At issue on appeal is whether officers violated Defendant’s Fourth Amendment right to be free from unreasonable searches and seizures by exceeding the scope of their patdown search and seizing the car key, and, if a constitutional violation occurred, whether the handgun evidence was nevertheless admissible because Defendant’s flight from officers attenuated the discovery of the handgun.   The Ninth Circuit affirmed Defendant’s convictions for Hobbs Act robbery and conspiracy to commit robbery and a sentence enhancement under U.S.S.G. Section 3C1.1, reversed his conviction for brandishing a firearm, and remanded for a reduction of sentence or retrial on the Section 924(c) count. The court concluded that the handgun evidence was illegally obtained and should have been excluded at trial and that this error prejudiced Defendant as to the brandishing conviction but was harmless as to the convictions for Hobbs Act robbery and conspiracy. Based on the totality of the circumstances, the panel concluded that Defendant did not objectively demonstrate his intent to abandon the car key. The panel wrote that the exclusionary rule required suppression of the handgun evidence at Defendant’s trial unless an exception to the rule applies. View "USA V. TERRANCE BAKER" on Justia Law

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This case involved a Washington licensing scheme that disciplines healthcare providers for practicing conversion therapy on minors. The 9th Circuit denied a petition for rehearing en banc.Judge O'Scannlain, joined by Judges Ikuta, Nelson and Vandyke, issued a statement respecting from the court's decision to deny rehearing en banc because the decision correctly applied existing precedent. However, Judge Scannlain noted that the court should have used this case as an opportunity to resolve a circuit split and to "clarify that regulation of the medical profession is not a First-Amendment-free zone."Dissenting from the denial of rehearing en banc, Judge Bumatay wrote that because the speech underpinning conversion therapy is overwhelmingly—if not exclusively— religious, the court should have granted Plaintiff's petition for en banc review to evaluate his Free Speech claim under a more exacting standard. View "BRIAN TINGLEY V. ROBERT FERGUSON, ET AL" on Justia Law

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Defendant was serving a sentence of supervised release for a prior federal conviction from Nevada when he was arrested and indicted on one count of Conspiracy to Commit Bank Fraud. Soon after Defendant’s arrest, the government obtained an order permitting it to seize the funds in his inmate trust account and apply them to a restitution obligation for a prior federal conviction from Washington. Defendant pleaded guilty in the conspiracy case, admitted a violation of his supervised release in his Nevada case, and was sentenced in both cases. Defendant urges that the seizure of his inmate funds violated his Sixth Amendment right to counsel of choice and his Fifth Amendment due process right. He also contends that the district court’s imposition of an undisputedly illegal sentence for his supervised release violation is reversible error.   The Ninth Circuit affirmed the district court in part, vacated the sentence imposed for the violation of supervised release, and remanded for re-sentencing on the supervised release violation. The panel concluded that the government’s seizure of Defendant’s inmate funds did not violate his right to either counsel of choice or due process. The court also concluded that the district court’s imposition of an illegally excessive sentence for Defendant’s supervised release violation was plain error that requires vacatur of that sentence and remand for re-sentencing. View "USA V. LONNIE LILLARD" on Justia Law

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Mongol Nation is an unincorporated association whose members include the official, or “full-patch,” members of the Mongols Gang. A jury convicted the association of substantive RICO and RICO conspiracy violations; it also found various forms of Mongol Nation property forfeitable. That property included the collective membership marks—a type of intellectual property used to designate membership in an association or other organization. The district court denied forfeiture of those marks, holding that the forfeiture would violate the First and Eighth Amendments.   The Ninth Circuit affirmed the district court’s judgment. The court explained that in Mongol Nation’s appeal, it argued for the first time that it is not an indictable “person” under RICO because the indictment alleges that the association was organized for unlawful purposes only. The panel concluded that this unpreserved argument is non-jurisdictional. The panel did not resolve the Government’s contention that Mongol waived it. The panel wrote that regardless of the merits of Mongol Nation’s argument, it mischaracterizes the allegations in the indictment.    On the Government’s cross-appeal of the order denying its second preliminary order of forfeiture, the panel did not need to decide whether forfeiture of the membership marks would violate the First and Eighth Amendments. Nor did the panel reach the question of whether the marks may be forfeitable without the transfer of any goodwill associated with the marks. The panel held that the forfeiture was improper for a different reason—the Government effectively sought an order seizing and extinguishing the Mongols’ right to exclusive use of its marks without the Government itself ever seizing title to the marks. View "USA V. MONGOL NATION" on Justia Law

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A Huntington Beach City Councilperson appointed Plaintiff to the city’s Citizen Participation Advisory Board (“CPAB”). Each councilperson appoints one member to the seven-person CPAB and may remove that member without cause. After being appointed to the CPAB, Plaintiff was photographed at an immigrants’ rights rally standing near individuals whom the councilperson believed to be “Antifa.” After determining that Plaintiff’s public denouncement of Antifa was insufficient, the councilperson removed Plaintiff from the CPAB, citing lack of shared values.   Plaintiff sued the City of Huntington Beach, claiming retaliation for exercising her First Amendment rights to free speech, association, and assembly and alleging the councilperson’s demand for a public statement amounted to unconstitutionally compelled speech. The district court dismissed the complaint.   The Ninth Circuit affirmed the district court’s dismissal of a complaint for failure to state a claim, the panel held that the First Amendment does not protect a volunteer member of a municipal advisory board from dismissal by the city councilperson who appointed her and who is authorized under a city ordinance to remove her. The panel held that given the statutory structure and duties of the CPAB, the public could readily infer that a CPAB member’s actions and statements while serving in the role reflected the current views and goals of the appointing councilperson. Like each of her fellow board members, Plaintiff was the “public face” of her appointor. She could therefore be dismissed for lack of political compatibility. The panel further rejected Plaintiff’s compelled speech claim. View "SHAYNA LATHUS V. CITY OF HUNTINGTON BEACH" on Justia Law

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Defendant asserted that permitting a juror to participate remotely via Zoom violated his Fifth and Sixth Amendment rights, that the error was structural and could not be waived, and that he is therefore entitled to a new trial without having to show prejudice. Defendant asserted that the alleged error is akin to depriving him of his right to a jury trial, depriving him of his right to a fair and impartial jury, depriving him of a representative jury, and/or depriving him of his right to confront witnesses   The Ninth Circuit affirmed his robbery convictions. The court assumed without deciding that criminal defendants have a constitutional right to the in-person participation of jurors during their trial. The panel wrote that none of these comparisons is apt, as there is no indication in the record—and no reason to suppose—that the remote participation of a duly empaneled juror interfered with the functioning of the jury, somehow made that juror partial or unrepresentative, or impacted the procedures used for the presentation of witnesses. The panel wrote that allowing remote juror participation does not impact the entire framework of the trial in ways that cannot be accurately measured on review. The court explained that none of those errors Defendant alleged will necessarily arise simply because a juror is participating remotely. The panel wrote that there is no case law or record evidence to support a presumption that the remote participation of a juror will always render a trial unfair and the judgment unreliable. View "USA V. EDWARD KNIGHT" on Justia Law

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The Ninth Circuit denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc. Judge VanDyke, joined by Judges Callahan, Ikuta, Bennett, R. Nelson, and Bumatay, dissented from the denial rehearing en banc. Judge VanDyke wrote that the term “clearly established Federal law” under the Antiterrorism and Effective Death Penalty Act only refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions; and that the Supreme Court has emphasized that if this court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not “clearly established.” View "FREDDIE CRESPIN V. CHARLES RYAN, ET AL" on Justia Law

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A police officer (Officer) in Los Angeles, shot and killed a man during a failed arrest in the men’s locker room of a gym. Before the district court, the Officer maintained that he killed the man because the man was pummeling the Officer’s partner, and the Officer feared the man’s next blow would kill her. The Officer also claimed that he yelled “stop” before shooting, but no such warning can be heard on the officers’ body-cam recordings. The man’s mother sued the Officer for his allegedly unreasonable use of deadly force. The district court denied the Officers’ motion for summary judgment on qualified immunity grounds, and the Officer timely appealed.   The Ninth Circuit affirmed the district court’s order denying, on summary judgment, qualified immunity to the Officer. The court held that the district court properly denied the Officer’s request for qualified immunity for two reasons. First, the district court recognized that a reasonable jury could reject the police officer’s account of the shooting because there were significant discrepancies between their versions of events and other evidence in the record. Second, the court wrote that it has long held that the Fourth Amendment requires officers to warn before using deadly force when practicable. The defense cannot argue that it was not possible for the Officer to give the man a deadly force warning because the Officer’s sworn statements show that he had time to tell Dorsey to “stop.” Therefore, the district court correctly ruled that a jury could decide that the Officer’s use of deadly force violated clearly established law. View "PAULETTE SMITH V. EDWARD AGDEPPA, ET AL" on Justia Law

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Plaintiff was a long-time teacher in the Evergreen School District #114 (District) in Vancouver, Washington. Before the 2019–2020 school year began, he attended two days of teacher training and brought with him a MAGA hat. The question, in this case, is whether the First Amendment was violated when a principal told Plaintiff he could not bring his Make America Great Again (MAGA) hat with him to teacher-only trainings on threat of disciplinary action and when the school board affirmed the denial of the teacher’s harassment complaint filed against the principal.   The Ninth Circuit affirmed in part and reversed in part the district court’s summary judgment in favor of Defendants in Plaintiff’s 42 U.S.C. Section 1983 action. The panel first concluded that Plaintiff was engaged in speech protected by the First Amendment because the undisputed facts demonstrated that his MAGA hat conveyed a message of public concern, and he was acting as a private citizen in expressing that message. The record failed to establish, however, that the school district’s Chief Human Resource Officer, took any adverse employment action against Plaintiff, and for this reason, Plaintiff’s First Amendment retaliation claim against that defendant failed as a matter of law.   Further, any violation of Plaintiff’s First Amendment rights by the principal was clearly established where longstanding precedent held that concern over the reaction to controversial or disfavored speech itself does not justify restricting such speech. For these reasons, the panel reversed the district court’s grant of summary judgment in favor of the principal. View "ERIC DODGE V. EVERGREEN SCHOOL DISTRICT #114, ET AL" on Justia Law