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

In determining whether a police officer’s killing of the decedent arose out of the decedent’s “operation or use of a motor vehicle” pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-820.05(B), the Ninth Circuit certified the question of law to the Arizona Supreme Court pursuant to Rule 27 of the Rules of the Supreme Court of Arizona. This case presents two principal issues of first impression: (1) whether A.R.S. section 12-820.05(B) provides immunity from suit or a defense to liability, and (2) whether the decedent’s “operation or use of a motor vehicle” falls within A.R.S. section 12-820.05(B)’s motor vehicle exception. The court explained that certification is necessary because the central question of state law is dispositive of the instant case, and there is no controlling precedent from the Arizona Supreme Court. Ariz. R. Sup. Ct. 27(a). View "MARIA ADAME V. CITY OF SURPRISE" on Justia Law

Defendant argued that his conviction and sentence under 18 U.S.C. Section 924(c)(1) for using or carrying an explosive device during a crime of violence should be vacated. The Government conceded that Defendant’s conviction under 18 U.S.C. Section 844(i) is not a crime of violence under Section 924(c)(3) after United States v. Davis.   The Ninth Circuit reversed the district court’s denial of Defendant’s 28 U.S.C. Section 2255 motion and remanded with instructions to vacate his conviction and sentence under 18 U.S.C. Section 924(c)(1). Applying the categorical approach, the court explained that because a person can be convicted under Section 844(i) for using an explosive to destroy his or her own property, Section 844(i) criminalizes conduct that falls outside Section 924(c)’s definition of a crime of violence definition—an offense committed against the person or property of another. The court wrote that the district court—which relied on this court’s decision in Defendant’s direct appeal rejecting his argument that his property-damage and firearm convictions violated the double jeopardy clause “as punishment for the same conduct”—erred by not applying the categorical approach, which is required when determining whether an offense is a crime of violence. View "USA V. RICHARD MATHEWS" on Justia Law

In a series of appeals concerning a business lease which Defendant Wapato Heritage, LLC, once held on waterfront land within the Colville Indian Reservation in Washington State, the Ninth Circuit affirmed (1) the district court’s dismissal of Wapato Heritage cross-claims against the Confederated Tribes of the Colville Reservation and the Bureau of Indian Affairs; and (2) the district court’s denial of Wapato Heritage’s motion to intervene in a trespass damages trial between the Bureau of Indian Affairs and other parties. The district court dismissed Wapato Heritage’s cross-claims against the Tribes and the BIA because of tribal sovereign immunity, lack of subject matter jurisdiction, and failure to state a claim   The court explained the instances where tribal participation in litigation will constitute a waiver of tribal sovereign immunity must be viewed as very limited exceptions to the general rule that preserves tribal sovereign immunity absent an unequivocal expression of waiver in clear terms. Here, the Tribes did not waive their sovereign immunity to Wapato Heritage’s cross-claims as to the 2009 and 2014 replacement leases. The Tribes invoked their immunity from suit in two Fed. R. Civ. P. 12(b)(1) motions to dismiss Wapato Heritage’s cross-claims for lack of jurisdiction, which was granted. The Tribes retained their sovereign immunity to the cross-claims, and the district court did not need to rule on the claims’ merits. The court rejected Wapato Heritage’s contention that the appeal did not relate to Indian Trust land, finding that MA-8 was still Indian allotment land held in trust by the BIA. View "PAUL GRONDAL V. USA" on Justia Law

Petitioner was publicly marked as a terrorist and threatened with torture over social media by Nicaraguan government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime and received a second death threat— this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. The Ninth Circuit explained that the threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents.   The Ninth Circuit (1) granted Petitioner’s petition for review of the Board of Immigration Appeals’ (“Board”) decision affirming an immigration judge’s denial of asylum and related relief, and remanded, holding that the record compelled a finding that Petitioner’s past experiences constituted persecution and that the Board erred in its analysis of other issues; and (2) dismissed as moot Petitioner’s petition for review of the Board’s denial of his motion to reopen   The court held that the record compelled the conclusion that Petitioner’s experiences in Nicaragua constituted persecution. The court explained that the court has consistently recognized that being forced to flee from one’s home in the face of an immediate threat of severe physical violence or death is squarely encompassed within the rubric of persecution. Here, Petitioner was forced to flee three separate times after being personally targeted with violence and threatened with death for his political views. Further,the court wrote that an applicant may suffer persecution based on the cumulative effect of several incidents, even if no single incident rises to the level of persecution. View "MARIO FLORES MOLINA V. MERRICK GARLAND" on Justia Law

Plaintiffs, employees of WinCo Foods, LLC alleged violations of the California Labor Code relating to the payment of wages and business-related expenses and the California Business & Professions Code Sections. Plaintiffs' claimed compensation as an employee for the time and expense of taking a drug test as a successful applicant for employment. Plaintiffs argued that because the tests were administered under the control of the employer, Plaintiffs must be regarded as employees.The district court granted Plaintiff’s motion for class certification and both sides then moved for summary judgment. The district court held that Plaintiff and class members were not employees of WinCo Foods when they underwent drug testing and the court granted WinCo’s motion for summary judgment. The Ninth Circuit affirmed the district court’s judgment in favor of WinCo Foods. The court rejected Plaintiffs’ contentions because control over a drug test as part of the job application process is not control over the performance of the job. In this case, the class members were not performing work for an employer when they took the pre-employment drug test; they were instead applying for the job, and they were not yet employees. Plaintiffs also contended under California law that class members were employees under a “contract theory,” and that the drug test should be regarded as a “condition subsequent” to their hiring as employees pursuant to Cal. Civil Code Section 143. The court held that there was no condition subsequent because here there was no written contract, and the drug test was a condition precedent. View "ALFRED JOHNSON V. WINCO FOODS, LLC" on Justia Law

Plaintiff, a Russian citizen who resides in Russia, filed a civil RICO suit against Defendant Russian citizen who resides in California, and eleven other defendants. After securing a foreign arbitration award against Defendant. Plaintiff obtained a judgment from a United States district court confirming the award and giving Plaintiff the rights to execute that judgment in California and to pursue discovery. Plaintiff alleged that Defendants engaged in illegal activity, in violation of RICO, to thwart the execution of that California judgment.   Consistent with the Second and Third Circuits, but disagreeing with the Seventh Circuit’s residency-based test for domestic injuries involving intangible property, the court held that the alleged injuries to a judgment obtained by Plaintiff from a United States district court in California were domestic injuries to property such that Plaintiff had statutory standing under RICO. The court concluded that, for purposes of standing under RICO, the California judgment existed as property in California because the rights that it provided to Plaintiff existed only in California. In addition, much of the conduct underlying the alleged injury occurred in or was targeted at California. View "VITALY SMAGIN V. COMPAGNIE MONEGASQUE DE BANQUE" on Justia Law

In three defendants’ consolidated appeals, the Ninth Circuit (1) vacated the sentences imposed at resentencing on two 18 U.S.C. Section 924(c) counts that remained after the district court—in light of United States v. Davis, 139 S. Ct. 2319 (2019)—had granted 28 U.S.C. Section 2255 relief and vacated the defendants’ convictions on two other Section 924(c) counts; and (2) remanded for resentencing.   The court held that the version of 18 U.S.C. Section 924(c)(1) that was amended by the First Step Act of 2018, and not the original version of Section 924(c)(1), applies at post-Act resentencing of Defendants whose sentences were imposed before the Act’s passage and vacated. In so holding, the court interpreted Section 403(b) of the Act, which provides that the statute applies to “any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” The court held that because vacatur of the prior sentences here wiped the slate clean, a sentence had not been imposed for purposes of Section 403(b) at the time of resentencing. The court wrote that the most reasonable reading of Section 403(b) is that “a sentence” means an existing valid sentence, not a prior valid one; and that the vacated sentence—a legal nullity—cannot form the legal predicate for the exclusion from the application of the First Step Act, which Congress expressly made retroactive under Section 403(b). View "USA V. VERNE MERRELL" on Justia Law

Defendant argued that Hawai’i’s second-degree robbery statute, Haw. Rev. Stat. Section 708-841 (1986), is not divisible and sweeps too broadly to be a crime of violence because Section 708-841(1)(c) criminalizes reckless conduct. He conceded that, if the statute is divisible, his conviction under Section 708-841(1)(b) (in the course of committing theft, threatening the imminent use of force with intent to compel acquiescence) is a crime of violence.   Noting that the Supreme Court of Hawai’i has weighed in on the question, the Ninth Circuit held that the subsections in the statute describe unique elements of separate offenses, not alternative means of committing the same offense, and that the statute is therefore divisible. The court wrote that this conclusion is confirmed by the jury instructions for Defendant’s offense, and therefore rejected Defendant’s contention that because Hawai’i requires jury unanimity for various reasons, unanimity cannot establish divisibility. The court explained that even if there are some instances when unanimity may be required for other reasons, the Hawai’i courts use unique jury instructions for each subsection of the second-robbery statute, such that the jury cannot disagree on whether a defendant charged with violating subsection (b) threatened the imminent use of force with intent to compel acquiescence. View "USA V. ALLEN TAGATAC" on Justia Law

Plaintiff was on parole when she was evicted from her apartment. She sent a letter to the parole office about her eviction and provided updated contact information, but the parole office was unable to contact her with the information provided. The parole office then suspended Plaintiff’s parole and issued a “retake warrant.” Plaintiff was arrested seven years later. At the revocation hearing, the parole office decided not to revoke Plaintiff’s parole, retroactively rescinded her parole suspension, restored her parole end date to March 2015, and released her from custody. During the two months she was detained, Plaintiff lost her home, business, and pets.   The Ninth Circuit held that the parole officer permissibly suspended plaintiff’s parole. Plaintiff’s arrest was reasonable under the Fourth Amendment because the parole office had a reasonable belief that she violated her parole. Because the Fourteenth Amendment does not require notice to a parolee before a parole suspension hearing, and because plaintiff was largely responsible for the seven-year delay in her arrest, her arrest did not violate due process. Plaintiff’s state law claims failed because the defendants had no waived immunity for false imprisonment or false arrest, and she could not establish the elements of her negligence and intentional infliction of emotional distress claims. View "ELIZABETH CORNEL V. STATE OF HAWAII" on Justia Law

Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. Section 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad.   Denying in part and granting in part Petitioner’s petition for review of a decision of the BIA, the court held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Applying the categorical approach, the court first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), and expressly recognized that Cisneros had been overruled.   As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The court explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. Because the BIA committed an error of law in failing to apply the correct legal standards, the court remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards. View "DIEGO MENDOZA-GARCIA V. MERRICK GARLAND" on Justia Law