Santa Monica Nativity Scenes Committee v. City of Santa Monica, 784 F.3d 1286 (9th Cir.2015)

The 9th Circuit panel writes the standard First Amendment rules on free speech and the Establishment Clause as applied to the annual Christmas display of nativity scenes in Santa Monica. The City eliminated all unattended displays in Palisades Park at Christmas. The scenes have been a part of Santa Moncia history for fifty years and a source of visitors every year.  Apparently an atheist was permitted to erect a display consisting of a chain link fence and a quotation from Jefferson, and other displays were permitted unrelated to anything.  . Continue reading

Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)

Only the 9th Circuit writes a decision in this case that a court would consider, and resolution could have been decided in two paragraphs. In Frudden v. Pilling the plaintiffs filed a Complaint alleging their objections to a local elementary school that had decided to require a dress code for all students.  Imprinted on the shirts read the words “Tomorrow’s Leaders”, a photo of the Gophers (apparently the school motto), and an exception for students wearing the shirts who were members of the Boy Scouts or the Girl Scouts.  The plaintiff’s Complaint alleges “Tomorrow’s Followers” were excluded.  Viewpoint discrimination and not content neutral.

First, the 9th Circuit panel listed all the parental failures in their drive for a dress code at the elementary school as though they should have complied with federal election laws. Then the panel launched into a discussion whether the Complaint violated the First Amendment, contending the motto (“Tomorrow’s Leaders”) imprinted on the shirts was not content neutral, and the emphasis on Boy Scouts and Girl Scouts exclusion from wearing the shirts discriminatory. The panel remanded the case to the district court for the plaintiff to amend the Complaint and the district court to do something.

The distinct court read the pleadings and the record and wondered who was doing what.  In the plaintiff’s oral argument they conceded the motto was acceptable and only wanted other national youth organizations exempted from wearing the shirts in addition to the Scouts. The district court wondered why this case came back from the 9th Circuit on issues not in dispute and unrelated to the appellate record.  The defendants moved to clarify the record written in the 9th Circuit opinion.  Motion to clarify granted. Apparently there is no dispute at all, or if there is one, the 9th Circuit panel can explain if the parties elect to appeal the district court clarifying decision.  The elementary school students will understand the First Amendment strict scrutiny test applied by the 9th Circuit panel in this exciting case.

All the parties had to do was sit down and negotiate.  Not one of the 9th Circuit panel suggested they do that.

Wood v. Moss, 134 S.Ct. 2056 (2014); reversing 9th Circuit)

Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and  events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.

President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town.  As he walked through the streets accompanied by Secret Service Agents, two groups followed him.  One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same.  At the last minute, the President changed his plans and entered a restaurant.  The Secret Service Agents re positioned the two groups in their distance from the President.

The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated  “clearly established” federal law.

A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument,  the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.


Dariano v. Morgan Hill Unified School Dist., 767 F.3d 764 (9th Cir 2014)

In the Morgan Hill case, during a Cinco de Maya observance day, several students arrived at school with American flags imprinted on their shirts.  Mexican students confronted them and demanded to know why Mexican colors could not be worn, and alleged the students were racists.  Apparently there was some other friction among students but no disruption or physical altercations occurred.

Informed of the disturbance, the principal called in the flag wearing students and told them to remove the shirts or turn them inside out.  The students refused and were sent home. Their parents filed a lawsuit alleging civil rights claims. In an amended opinion, the 9th Circuit panel rejected the litigation on all grounds and denied a rehearing.  A rehearing en banc was also denied.  Only three judges dissented from an en banc hearing.

The principal was obviously concerned because the campus had been the scene of Mexican gang fights.  But no Mexican student was reprimanded for threatening students and no punishment levied.  The students causing the disturbance were free do so. The solution: cancel any Cinco de  Maya days.

The 9th Circuit panel cited the seminal case of Tinker v. Des Moines Independent Community School District.  Students were allowed the practice of shirt wearing slogans as long as no disruption occurred or was fomented.  The panel cited Confederate flag cases holding the incitement was indigenous to slavery and disallowed this attire. These cases hardly compare to wearing the American flag.

The courts in other cases have used the “heckler” veto when onlookers elect to shout down the speaker.  This conduct compares equally to Morgan Hill  when Mexican students threatened the flag wearers who allegedly angered them.  The dissenting judges cite these cases to the indifference of the panel and judges denying a rehearing.

Cert Time.

Note: During the war in Iraq the State of California placed an American flag on a freeway overpass.  Later, someone also placed a flag on the overpass complaining about U.S. intervention.  State personnel removed the non American flag and, unsurprisingly, were sued by those who sought the right to fly the removed flag.  As a result of a 9th Circuit decision, the State had to remove the American flag.The American flag had to be removed, said the 9th Circuit panel, unless other flags were allowed.  “Viewpoint discrimination” said the panel. The AG did not seek cert.

In tracking the 9th Circuit for the last five years it is obvious that a liberal ideology permeates their opinions. Could students wear St. Patrick shirts; Christopher Columbus shirts; Jesus Christ shirts? As the dissent points out, why did the principal call in the students wearing American flags on their shirts instead of those who were threatening them or demanding Mexican flags? The hecklers won. Apparently the American flag is meaningless in the 9th Circuit.

Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013)

The scarcity of judicial  resources in federal courts, as in state courts, suggests that judges conserve time and energy for cases of significant legal importance. The 9th Circuit ignores that sage advice and in Ford the panel wrote  a 2-1 opinion that defies understanding.

Police stopped Ford in his moving vehicle for violation of a city ordinance prohibiting loud noise.  He immediately began to rant about a variety of topics, and the police in polite terms repeatedly told him to behave, speak in civil tones and control himself.   Under Washington law the police can either ticket an offender or effect an arrest for misdemeanors.  After frequent attempts to quiet down the defendant, as recorded on audio and video, police arrested Ford for violation of the ordinance.

This trivial incident resulted in a Section 1983 claim filed by Ford against the police officers which the district court judge dismissed.  The 9th Circuit reversed on grounds the police had “chilled [Ford’s] speech” under the First Amendment.  Constitutionalizing conduct is a favorite device in the 9th Circuit. 

The majority panel cites two irrelevant cases the Supreme Court had decided prohibiting  “retaliatory arrest” and “retaliatory prosecution.” The First Amendment prohibits police from penalizing a person solely on the ground of retaliation for derogatory or insulting remarks unless an arrest occurs supported by probable cause; Reichle v. Howards, 132 S.Ct. 2088 (2012)  In one case a man merely shouted profanity and criticism against police; in the other case, police arrested a man for criticizing the officers in a book.  Neither of these cases involved an arrest.

The Supreme Court has held that if probable causes exists for an arrest the speech component vanishes.  Ford does not question the issue of probable cause, and that’s the end ot it.  But according to the 9th Circuit, despite grounds for arrest, a loud mouth can have his First Amendment rights violated.  Why this case was not heard en banc is a mystery.  Probably too trivial.

Ford filed a 1983 claim against police allleging a First Amendment speech violation that should have been heard in small claims court-if at all. The district court found no First Amendment violation and dismissed the claim.  The police also sought qualified immunity but the district court did not address this issue in resolving the absence of a First Amendment violation.

The officers filed qualified immunity but the majority panel held they should have known their conduct violated the First Amendment and denied the defense despite the Supreme Court decision to the contrary.  And this case took five years to the time of appeal.

Valle Del Sol v. Whiting, 709 F.3d 808 (9th Cir. 2013)

The 9th Circuit record on immigration cases is deplorable not only for its obvious solicitude for illegal aliens but its unwarranted attacks on IJ Judges.  The 9th Circuit uses U.S. criminal law and Constitutional law to apply in all forms of immigration appeals, i e. 6th Amendment “ineffective assistance of counsel” when counsel is not required in immigration cases (the  previous attorney general in the Bush administration no longer accepted that excuse. The current AG reversed that opinion). 9th Circuit panels ignore the IJ who concludes the applicant is not credible, and then they substitute their own judgement as often as they do in criminal cases. Here is an illustrative case.    

The Arizona legislature enacted a statute to prohibit solicitation by day laborers standing on public streets.  The statute attempted to eliminate traffic snarls while drivers negotiated terms of the labor.  In addition, the statute expressly directed this legislation toward elimination of illegal aliens who constitute the majority of applicants.

The plaintiffs challenged the legislation on grounds it constituted “commercial speech” protected by the First Amendment.  The 9th Circuit panel launched into an extensive dissertation of “commercial speech” without citing any Supreme Court cases confirming the right of day laborers to solicit labor on public streets.  Eliminating  traffic congestion is “commercial speed” protected by the First Amendment?

Here is the Supreme Court definition of Free Speech: “At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. The central purpose of the Speech and Press clauses was to assure a society in which uninhibited, robust, and wide-ed open public debate concerning matters of public interest would thrive, for only in such a society can a healthy democracy flourish.The First Amendment creates an open marketplace in which differing ideas about political, economic and social issues can compete freely for public acceptance without improper government interference;” Knox v. SEIU Int. Union, Local 1000, 132 S.Ct. 2277 (2012). And this Supreme Court commentary prohibits a state from controlling traffic congestion caused by day laborers?

After a thorough discussion of this irrelevant topic in the context of traffic control, the 9th Circuit panel  turned its attention to the other reason for the Arizona statute-to limit the presence of illegal aliens.  Somehow  this legislataon is unlawful and an excuse to deport, or at least, remove their presence.

This simple and obviously realistic Arizona state legislation could have been disposed of in two paragraphs. First, controlling traffic is a legitimate objective and this statute is a reasonable attempt to do so.  Second, removing illegal aliens from within a state is unrelated to immigration and enforceable by the state.  End of analysis.  How any court could devote endless savaging of forests to print this case as a a First Amendment issue is inconceivable.

As noted above, the 9th Circuit will seek some kind of constitutionalization of routine conduct.  Preventing day laborers to stand on the street and create traffic jams is not a Constitutional question.  This is not  the first time the 9th Circuit has forbidden traffic control among aliens.  In Comite de Journaleros v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) the city council passed a similar ordinance and the 9th Circuit struck it down also on First Amendment grounds.

An interesting sidebar.  Plaintiff had standing because they had to file litigation and that task interfered with their business.

Doe v. Reed, 586 F.3d 671 (9th Cir. 2009); Affirmed in S.Ct, 130 S.Ct.2811 (2010)

The Washington State Legislature enacted legislation extending rights and responsibilities to state registered domestic partners. In response, voters signed petitions to submit the legislation to a referendum. Several opposition groups sought disclosure of all the names of those who had signed the petitions. Washington law provides a Public Records Act (PRA) mandating disclosure of signatories who signed petitions in support of a referendum. To assure the integrity of an election or petition for referendum, Washington criminal law also prohibits anyone from using a false name in voting; or is not a legal voter; or otherwise makes a false statement in signing a petition. Washington statutes also provide a method for voter certification of signatures by the Secretary of State and an appellate process seeking review of the administrative decision on the integrity of ballots or petitions. Plaintiffs filed a Complaint in U.S. District Court seeking an injunction against enforcement of the PRA. In Count I of the Complaint, plaintiffs alleged disclosure of signatories to the petitions violated the First Amendment “because the PRA is not narrowly tailored to to serve a compelling public interest.” Count II alleged the PRA is unconstitutional because “there is a reasonable probability that signatories of the petitions . . . will be subject to threats, harassment, and reprisals.” In support of that allegation, plaintiffs alleged various groups have “publicly stated they intend to publish the names of signatories on the Internet . . . and have encouraged individuals to contact petition signers to have ‘personal’ and ‘uncomfortable’ conversations.” The District Court ordered injunctive relief in accord with the conventional test of finding the plaintiff likely to succeed on the merits; likely to suffer irreparable injury in the absence of an injunction; balance of equities in its favor; injunction in the public interest. The State (and other defendants) appealed. The Ninth Circuit ignores the court order for injunctive relief entirely, despite the trial judge’s obvious finding the plaintiffs would suffer injury. The Ninth Circuit panel reversed on the ground the trial judge used the wrong legal test for allegations of First Amendment violations. The Ninth Circuit reversed Count I as the District Court had ruled only on that count. After concluding the PRA is subject to “intermediate scrutiny” under First Amendment analysis, the court asks rhetorically what government interests are furthered by the PRA. Twofold, according to the court: to preserve the integrity of the election and “providing Washington voters with information about who supports placing a referendum on the ballot.” The court cites no authority for this latter “public interest” and it is patently without precedent. The purpose of assuring the integrity of an election or validity of petitions for a referendum identified in the above statutory requirements is prevention of fraud and assurance no false names or statements are counted in the ballots or petitions. Nothing in the the court’s rationale to allegedly “inform the public about who supports the referendum”, validates the need for disclosure. This supposed rationale is directly contradicted by the allegations of the Complaint that disclosure is sought to threaten or intimidate signatories, not to inform the public. The court is further confronted with another Washington statute allowing various interested parties to observe the Secretary of State staff processing the names of “qualified voters” who signed the petitions “so long as observers make no record of the names, addresses, or other information on the petitions or related records during the verification process.” In other words, the Washington statute specifically prohibits observers of the certification process from recording any names on petitions. According to the Ninth Circuit, this Washington statute is not controlling because the alleged demands for disclosure of “who is qualified” to sign petitions are insufficient to provide “information about who supports placing a referendum on the ballot.” But the defendants are not concerned about qualified voters. They want disclosure to fulfill their publicly announced interest to confront signatories. Fortunately, this erroneous judicial Ninth Circuit interpretation of First Amendment Constitutional law and Washington state law has been stayed by the Supreme Court. Buried in the footnotes of Doe v. Reed, the Ninth Circuit panel notes that its decision was stayed by Justice Kennedy who referred his decision to the entire Court-which confirmed the stay. A question: Suppose the plaintiffs were a minority group. They alleged their supporters would be threatened by disclosure. Would the Ninth Circuit issue the same rule as Doe v. Reed? Or this: Assume State legislation mandates proof of identification (disclosure) by voters before voting in an election. The Supreme Court approved that state legislation in Indiana; Crawford v. Marion Co. Election Bd., 533 U.S. 1811 (2008). Had that case been before the Ninth Circuit instead of the Supreme Court, the result would have been different.