Ninth Circuit to Rehear Redondo Beach Case En Banc; Could Open Previously Foreclosed 1st Amendment Challenge to AZ’s Immigration Law
October 18, 2010
In June 2010, the Ninth Circuit issued its decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010) (available here). On October 15, 2010 the Ninth Circuit issued an order to rehear the case en banc. (order available here). The rehearing of this case en banc is of particular interest to the current litigation involving Arizona’s immigration law (Senate Bill 1070 (“SB 1070″) pending before District Judge Susan. R. Bolton in Phoenix, Arizona. In Judge Bolton’s preliminary injunction order, which is currently on appeal to the Ninth Circuit, she noted in footnote 16:
“Two provisions of Section 5 prohibit the act of hiring and being hired by the occupant of a motor vehicle. A.R.S. § 13-2928(A), (B). The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a virtually identical local ordinance in Redondo Beach, California forecloses a challenge to A.R.S. §§ 13-2928 (A) and (B) on First Amendment grounds.See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010).”
This issue is not a part of the preliminary injunction currently on appeal, since Judge Bolton did not enjoin this part of the statute after finding that under Ninth Circuit precedent A.R.S. § 13-2928(A), (B) were not likely to be found unconstitutional on First Amendment grounds. However, the Ninth Circuit’s decision to rehear this case en banc may result in a decision allowing 1st Amendment challenge that was previously foreclosed.
Ninth Circuit to Rehear En Banc Excessive Force Case Involving Pregnant Mother Who Was Tased After Being Pulled Over for Speeding (38 mph) In Front of Son’s School
On September 30, 2010, the Ninth Circuit ordered the case Brooks v. City of Seattle (08-35526) to be reheard en banc. (order available here). Malaika Brooks brought a Section 1983 action and state law claims against Sergeant Steven Daman, Officer Juan Ornelas, and Officer Donald Jones ("the Officers") for use of excessive force when they tased her three times in order to arrest her. The Officers moved for summary judgment based on qualified immunity. The district court denied the Officers' motion finding that the Officers ' conduct amounted to excessive force and declined to find qualified immunity. The Officers appealed. In March 2010, the original three-judge panel (Circuit Judges Hall, O'Scannlain, and Berzon), reversed the district court (original three-judge panel opinion available here). The majority (Circuit Judges Hall & O'Scannlain) held:
[B]ecause we find the Officers’ use of force reasonable and not excessive under the Fourth Amendment, we reach the issue. Under Washington law, force used by a police officer is not unlawful “[w]henever necessarily used . . . in the performance of a legal duty.” Wash. Rev. Code § 9A.16.020(1). Where the use of force is reasonable, an officer is entitled to state law qualified immunity for assault and battery claims. See McKinney v. City of Tukwila, 13 P.3d 631, 641 (Wash. App. 2000). . .[T]he Officers had probable cause under Washington law to arrest Brooks for obstructing an officer in the exercise of his official duties, did so at the behest of the superior officer on the scene, and acted reasonably and in accordance with the SPD’s Use of Force Training Guideline. Thus, the Officers are entitled to immunity for these state law claims.Judge Berzon is in violent - yet respectful - disagreement. So she begins her dissent:
I dissent. Here is what happened to Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor; now, in Washington, it is not even that.1 Brooks had no weapons and had not harmed or threatened to harm a soul. Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars. I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against Brooks, let alone three activations of a Taser, in response to such a trivial offense. Obviously, the sensible reaction to her refusal to acknowledge the ticket in writing would have been to so note on the ticket and send her on her way. Instead, a traffic offense — assuming it occurred — turned into an encounter that inflicted physical and, in all likelihood, emotional pain on a citizen who was not in any way dangerous to anyone. As “the situation here was far from that of a lone police officer suddenly confronted by a dangerous armed felon threatening immediate violence,” Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001), we should be holding the force used constitutionally excessive. But the majority does the opposite: it sanctions the use of painful force causing permanent scars against a citizen who threatened no harm. I have no choice but respectfully to dissent.Issues to be addressed en banc include: (1) Probable cause to place Brooks under custodial arrest; (2) Objective reasonableness inquiry under Graham v. Connor, 490 U.S. 386, 396 (1989) (3) Qualified immunity, specifically whether the Officers’ “use of force was premised on a reasonable belief that such force was lawful, or . . . ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001),(quoting Saucier, 533 U.S. at 202).
Premise #1: Attorneys want to win their appeals (and motions). Premise #2: Assuming there's a good case, in order to win their appeals (and motions) attorneys need to give the court what it needs and wants. But how does an attorney know - outside of mere speculation or firm folklore passed down through generations of associates and partners - what a court really wants and needs? Let's go to the source. Ninth Circuit Chief Judge Kozinski in the article "The Wrong Stuff" (full article available here) provided an equally humorous and bitterly true "to-do" list designed to ensure that you'll lose the appeal (or motion) even when you probably have a good case.
Thursday March 25, 2010, President Obama has nominated Judge Mary H. Murguia to the United States Court of Appeals for the Ninth Circuit in San Francisco. Currently, Judge Murguia is the first Latina to serve as a judge in Arizona's federal district court . If confirmed, Judge Murguia will fill the vacancy created by Judge Michael Daly Hawkins' decision to assume senior status. Judge Murguia began her legal career in 1985 with the Wyandotte County District Attorney’s Office in Kansas City, Kansas. From 1990-2000, she served as an Assistant United States Attorney in the Criminal Section of the District of Arizona United States Attorney’s Office and she was the Office’s Criminal Deputy Chief from 1994-1998. In 1999, Judge Murguia joined the Executive Office for United States Attorneys at the Department of Justice in Washington, D.C. Judge Murguia's twin sister is noted civil rights leader Janet Murguía and her older brother, Carlos Murguia is a United States district judge.
Ninth Circuit Issues Blow: 10,000 California Teachers Holding “Intern Credentials” Not “Highly Qualified Teachers” Under No Child Left Behind
This case is a bit of a reversal of fortune for Plaintiffs/Appellants. The original three-judge opinion filed July 23, 2009, and reported at 573 F.3d 903, is withdrawn and is replaced with Renee v. Duncan (08-16661) (full opinion available here), with Circuit Judge William A. Fletcher writing for the majority and Judge Tallman in dissent). Background:On August 24, 2009 plaintiffs filed a petition for rehearing requesting that the three-judge panel reconsider its decision, or alternatively, that a larger eleven-judge panel rehear the case “en banc.” Typically, petitions for rehearing are summarily dismissed without the Court calling for a responsive brief. But in this case, two days after the petition for rehearing was filed, the Court ordered the U.S. Department of Education to file a response brief. In a rare turn of events, the three-judge panel reversed itself and now invalidates the federal regulation and as a practical matter, the corresponding CA state regulation, permitting teachers holding "intern credentials" to count as "highly qualified" teachers for the purpose of No Child Left Behind.
On February 24, 2010 President Obama nominated Associate Dean and Professor of Law Goodwin Liu of the University of California, Berkeley School of Law (Boalt Hall), to serve as a judge of the United States Court of Appeals for the Ninth Circuit. If confirmed by the Senate, Professor Liu would fill a judgeship created on January 21, 2009.