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

Under California law, certain political advertisements run by a committee must name the committee’s top contributors. The City and County of San Francisco adds a secondary-contributor disclaimer requirement that compels certain committees, in their political advertisements, also to list the major donors to those top contributors. Plaintiffs—a political committee that runs ads, the committee’s treasurer, and a contributor to the committee— seek to enjoin enforcement of San Francisco’s ordinance.   The Ninth Circuit affirmed the district court’s denial of Plaintiffs’ motion for a preliminary injunction. The panel first determined that even though the June 2022 election had occurred, this appeal was not moot because the controversy was capable of repetition yet evading review. The panel held that Plaintiffs had not shown a likelihood of success on the merits. Applying exacting scrutiny, the panel held that San Francisco’s requirement was substantially related to the governmental interest in informing voters of the source of funding for election-related communications. The panel next held that the ordinance did not create an excessive burden on Plaintiffs’ First Amendment rights relative to the government interest and was sufficiently tailored. Thus, the panel was not persuaded that the secondary-contributor requirement was an impermissible burden on speech because the size of the disclaimer was excessive with respect to larger ads. The district court was within its discretion to conclude that the secondary-contributor requirement had a scope in proportion to the City’s objective. View "NO ON E, SAN FRANCISCANS OPPOSING THE AFFORDABLE, ET AL V. DAVID CHIU, ET AL" on Justia Law

In support of its classified national security investigations, the United States served administrative subpoenas and orders requiring Twitter to provide the government with certain information about Twitter users. In its Transparency Report, Twitter wished publicly to disclose certain information about the aggregate numbers of these governmental requests that it received between July and December 2013. The FBI determined that the number of subpoenas and orders and related information was classified and that Twitter’s disclosure of this information would harm national security. The FBI allowed Twitter to release its Transparency Report only in a partially redacted form.   The Ninth Circuit affirmed the district court’s summary judgment for the United States in an action brought by Twitter alleging First Amendment violations arising from the FBI’s restrictions on Twitter’s publication of a self-described “Transparency Report.” The panel held that Twitter’s constitutional challenges failed to persuade. The panel acknowledged that Twitter has a First Amendment interest in commenting on matters of public concern involving national security subpoenas. Nevertheless, based on a careful review of classified and unclassified information, the panel held that the government’s redactions of Twitter’s Transparency Report were narrowly tailored in support of the compelling government interest in national security. The panel concluded that the government’s redactions of Twitter’s Transparency Report did not violate the First Amendment.   The panel next held that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allowed for sufficient procedural protections. Finally, the panel held that due process did not require that Twitter’s outside counsel receive classified information by virtue of Twitter filing this lawsuit. View "TWITTER, INC. V. MERRICK GARLAND, ET AL" on Justia Law

Plaintiff alleged alleges that Defendant, a now-retired officer of the Bureau of Land Management (“BLM”), used excessive force while attempting an arrest on June 10, 2018, in Berdoo Canyon, part of public lands managed by BLM near Joshua Tree National Park. Defendant brought an interlocutory appeal from the denial of qualified immunity on summary judgment.   The Ninth Circuit filed (1) an order denying a petition for panel rehearing, denying on behalf of the court a petition for rehearing en banc, and amending the opinion filed on November 14, 2022; and (2) an amended opinion vacating the district court’s denial, on summary judgment, of qualified immunity and remanding with instructions to enter summary judgment dismissing with prejudice Plaintiff’s claim.   The panel held that there was no Bivens cause of action for Plaintiff’s claim, which presented a new context. And given this new context, special factors counseled against implying a cause of action here. For example, Fourth Amendment excessive force claims against Bureau of Land Management (“BLM”) officers would have “‘systemwide’ consequences” for BLM’s mandate to maintain order on federal lands, and uncertainty about these consequences provided a reason not to imply such a cause of action. The panel further determined that Plaintiff had alternative administrative remedies. View "DENISE MEJIA V. WESLEY MILLER, ET AL" on Justia Law

Police stopped Defendant for a traffic violation, which led to the discovery of a firearm that Defendant, a convicted felon, could not lawfully possess.   The Ninth Circuit held that the officers did not unreasonably prolong the stop and that Defendant voluntarily consented to the search of his car. The court, therefore, affirmed the district court’s denial of Defendant’s motion to suppress. But, on one aspect of Defendant’s supervised release, the court remanded for the district court to conform its written judgment to the court’s oral pronouncement of Defendant’s sentence.   The court wrote that an officer’s asking Defendant two questions about weapons early in the counter—once before the officer learned that Defendant was on federal supervision for being a felon in possession and once after—was a negligibly burdensome precaution that the officer could reasonably take in the name of safety. Further, the officers’ subjective motivations are irrelevant because the Fourth Amendment’s concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent. A criminal history check and the officers’ other actions while Defendant was outside the car were within the lawful scope of the traffic stop.   As to whether the officers violated the Fourth Amendment when they searched Defendant’s car, the panel held that the district court did not err in finding that Defendant unequivocally and specifically consented to a search of the car for firearms. The panel remanded for the district court to conform the written judgment to its oral pronouncement of conditions concerning outpatient substance abuse treatment and vocational services programs. View "USA V. XZAVIONE TAYLOR" on Justia Law

During the George Floyd protests in the summer of 2020, the Seattle Police Department and the Mayor of Seattle took the unprecedented step of surrendering an entire precinct and a large area of the surrounding neighborhood to protestors for a month, who declared it the Capitol Hill Occupied Protest (“CHOP”). Top City of Seattle (“City”) officials, including members of the City Council, were in their thrall, supporting and encouraging CHOP, with the mayor calling it a reprise of “the summer of love” despite growing evidence of its lawlessness and danger—and a mounting body count. Plaintiff, the mother of a nineteen-year-old son with special needs who was shot to death within CHOP, brought this action to recover damages for her loss of companionship with her son.   The Ninth Circuit affirmed the district court’s dismissal for failure to state a claim. The panel stated that, unlike almost every other circuit, this circuit recognized Plaintiff’s substantive due process right to the companionship of her adult son. And Plaintiff properly alleged that the City acted with deliberate indifference to the danger it helped create, which caused her son’s death. It was self-evident that the Seattle Police Department’s wholesale abandonment of its East Precinct building, combined with Mayor Durkan’s promotion of CHOP’s supposedly festival-like atmosphere, would create a toxic brew of criminality that would endanger City residents. But the danger to which the City contributed was not particularized to Plaintiff or her son, or differentiated from the generalized dangers posed by crime, as the circuit’s precedent required. View "DONNITTA SINCLAIR V. CITY OF SEATTLE" on Justia Law

Plaintiff brought an action against the TSA, alleging discrimination in violation of the Rehabilitation Act when she was terminated from her limited-duty position. According to the allegations in Plaintiff’s complaint, she suffered two injuries while working for the TSA. She alleged that she was terminated due to her disability, and despite the availability of limited duty positions that she could fill, such as “exit lane monitor,” “secondary ticket checker,” or “bypass door monitor.” Plaintiff appealed the dismissal of her Rehabilitation Act claim for the second time.
The Ninth Circuit affirmed the district court’s order dismissing, as preempted by the Aviation and Transportation Security Act (“ATSA”), Plaintiff’s claim against the TSA. The panel joined the First, Fifth, Seventh, and Eleventh Circuits in holding that the ATSA, as applicable to security screeners, preempts the Rehabilitation Act. The ATSA authorized the Administrator of the TSA to set aside employment standards for security screeners as necessary to fulfill the TSA’s screening functions under the ATSA. A statutory note to the ATSA provides that the Administrator is authorized to do so notwithstanding any other provision of law. The panel held that use of the phrase “notwithstanding any other provision of law” reflected legislative intent to preempt the provisions of the Rehabilitation Act.   Plaintiff contended that preemption was unnecessary because the two statutes could be harmonized, and preemption was foreclosed by explicit language in the Whistleblower Protection Act (“WPEA”). The panel declined to address the issue of whether the WPEA made the Rehabilitation Act generally applicable to security screeners because this issue was not raised in the district court. View "ANNA GALAZA V. ALEJANDRO MAYORKAS" on Justia Law

Appointees to a university committee created to satisfy federal legal requirements sought to enjoin the university from releasing the letters appointing them to the official committee. The appointees claimed that the disclosure of such letters, which contain their personal identifying information, would violate their First Amendment right of expressive association. The district court held that there was a serious question on the merits of that argument and preliminarily enjoined the disclosure.   The Ninth Circuit reversed the district court’s preliminary injunction prohibiting the University of Washington from releasing, in response to a public records request, letters appointing Plaintiffs to the University’s Institutional Animal Care and Use Committee. The panel determined that here, the letters of appointment existed (and were part of the University’s public records) only because the committee members were appointed by the University according to statutory and regulatory criteria to ensure diverse representation. Their group association as committee members was not intended to enhance effective advocacy of their views or to pursue their lawful private interests but rather to fulfill federal requirements. Because, in performing their work on the committee, the members were not engaged in an association deemed to be “expressive” under Supreme Court or this Circuit’s precedent, the First Amendment right of expressive association did not protect them from the University’s disclosure of personal identifying information contained in their letters of appointment. Further, because the committee members’ work was unprotected by the First Amendment on an individual basis, their collective work on the committee was likewise unprotected. View "JANE SULLIVAN, ET AL V. UNIVERSITY OF WASHINGTON, ET AL" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. Although the Board entertained the government’s challenge to a portion of the immigration judge’s decision in Petitioner’s case, it declined to consider Petitioner’s challenges to that decision because Petitioner had not filed a cross-appeal. Petitioner argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the immigration judge’s alternative order on the merits of his claims.The Ninth Circuit affirmed. The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross-appeals. Rather, the Board has authority to prescribe its own rules of procedure so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel concluded that it lacked jurisdiction to consider Petitioner’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board. View "JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND" on Justia Law

Plaintiff pled “no contest” or “nolo contendere” to willfully resisting, obstructing, and delaying a peace officer in violation of section 148(a)(1) of the California Penal Code. Although Plaintiff entered the equivalent of a guilty plea, the state court never entered an order finding him guilty of the charge to which he pleaded. Instead, the court ordered that its acceptance of Plaintiff’s plea would be “held in abeyance,” pending his completion of ten hours of community service and obedience of all laws. After the six months of abeyance elapsed, the charges against Plaintiff were “dismissed” in the “interest of justice” on the prosecutor’s motion. Plaintiff brought an action pursuant to 42 U.S.C. Section 1983. The district court held that Plaintiff’s false arrest and excessive force claims were barred by Heck v. Humphrey.   The Ninth Circuit reversed the district court’s dismissal of Plaintiff’s false arrest and municipal liability claims, as well as the district court’s adverse summary judgment on Plaintiff’s excessive force claim, and remanded for further proceedings. The panel held that the Heck bar does not apply in a situation where criminal charges are dismissed after entry of a plea that was held in abeyance pending the defendant’s compliance with certain conditions. The panel further held that the district court erred in dismissing Plaintiff’s municipal liability claims against the City of Stockton and Stockton Police Department. Longstanding precedent establishes that both California municipalities and police departments are “persons” amenable to suit under Section 1983. View "FRANCISCO DUARTE, ET AL V. CITY OF STOCKTON, ET AL" on Justia Law

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