Monthly Archives: January 2012

Ryburn v. Huff, 132 S.Ct. 987 (U.S.)

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In a case so uncomplicated the Supreme Court issued a per curiam opinion reversing the 9th Circuit. Again.

A school superintendent called police and informed them a student had issued a death threat by firearm. Officers went to the student’s home and received no response after knocking on the door. They called on the phone and received no answer.  Moments later, a woman (the student’s mother) opened the door and the officers informed her they had received information about a threat and asked to talk to the student.  They asked her if any firearms were in the house and the woman ran inside.  Officers, unaware of her conduct, ran inside to assure their safety. No searches were conducted and no person mistreated.

As it turned out, the threat was only a rumor.  So the parents of the student sued for violation of Fourth Amendment rights.  Although the district court judge found the conduct of the officers reasonable, the 9th Circuit reversed. According to a 2-1 majority, the police conduct was unreasonable.  The dissenting judge criticised the majority for “sanitizing the facts.”

Apparently the 9th Circuit assumed the officers should just stand in the doorway and wait until the woman  either returned with a firearm or shot at them from a concealed location.  That, in  essence, is what the Supreme Court wrote.  Given all the threats and killing on school premises, the officers were concerned for the safety of the students.  Their conduct was perfectly reasonable under the circumstances.

Another case of 9th Circuit naivete. Only that court would allow this silly lawsuit to go forward.  The police responded to a complaint from a legitimate source.  Attempts to contact the inhabitants peacefully  by knocking on the door and using the telephone were unsuccessful.  A woman perfectly capable of answering the door or phone comes to the door, the officers explain their presence, ask for assurance that no firearms are on the premises, and the woman  runs inside the house without any explanation.  And this is what the Fourth Amendment prohibits? Ryburn is a perfect example of a court second guessing police responsibly during their job.

The 9th Circuit is destined to receive another record of reversals in the Supreme Court.

Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012)

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In 2007 the 9th Circuit wrote another verbose decision allowing patients at a California State Institution for Sexually Violent Predators to file claims against hospital employees alleging violation of Constitutional rights.  In a 2-1 opinion the majority allowed the plaintiffs to proceed on some of their claims, including damages against individual employees and denying them qualified immunity;  Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007). The Supreme Court reversed, in one sentence, citing its Iqbal case of inadequate pleading; Ashcroft v. Iqbal, 129 S.Ct. 137 (2009).

On remand to the 9th Circuit, the court in 2012 rewrote its original opinion and denied damages to individual employees on grounds of inadequate pleading, but emphasized plaintiffs could proceed on declaratory relief and injunction claims. And, said the court, the plaintiffs can proceed on a deliberate indifference theory.

The court also relied on its Starr v. Baca opinion, 652 F.3d 1202 ( 9th Cir. 2011)-eight judges dissenting from a denial of rehearing. 659 F.3d 650 (9th Cir. 2011).

Merolillo v. Yates (Warden), 663 F.3d 444 (9th Cir. 2012)

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A case tried in 1997; defendant convicted; affirmed on appeal; California Supreme Court  denied a hearing; U.S. District Court denied petition  for habeas corpus.  The 9th Circuit reversed. Again. Another case ripe for en banc or Supreme Court review.

The defendant forcibly entered a car occupied by an elderly couple, threw the male occupant out, but the female occupant became caught  in the seatbelt  and partially fell out of the car. The defendant drove the car about a quarter of a mile dragging the woman on the street where her head struck the pavement and the curb.  A police chase ensued and the defendant arrested.  Approximately one month later the woman died.

The coroner testified at the preliminary hearing and explained that the head injury caused her death but conceded he was not an expert witness head damage.  Unavailable for trial, the prosecution used his report to cross examine the defense experts who testified the woman died from her serious heart history. At trial the defendant offered expert witnesses who testified the death of the woman occurred as a result of her extensive heart history.

Incredibly, the 9th Circuit panel reversed on grounds the prosecution used the coroner’s report to cross examine the defense expert.  The report was not introduced in evidence, and two doctors testified on behalf of the prosecution.  Assuming the absence of the coroner at trial and the use of his report inadmissible, this would arguably cause a Sixth Amendment violation, but the error harmless.  Not according to the 9th Circuit  because AEDPA does not apply to harmless error, and the court used its own opinion.  What is wrong with cross examining a witness with questions read from a report never introduced at trial and no testimony to support it?

The 9th Circuit does nothing more than repeat the defense attorney argument at trial, and the jury rejected it.  The 9th Circuit did not hear the witnesses, did not judge their credibility, and the absence of the coroner had no influence on the jury. Another travesty.  

Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2012)

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Another 9th Circuit reversal of a death penalty case by a 2-1 majority panel. The case was tried in 1979.

Despite the harsh language of the Supreme Court in a recent series of cases reversing the 9th Circuit, the rebukes go ignored in Gonzalez and the case serves as another request for an en banc hearing and, if denied, a petition for cert. to the Supreme Court. The 9th Circuit majority panel cites AEDPA, U.S.C. 2254, concedes the Supreme Court cases have insisted on federal courts discontinuing second guessing state courts, and then ignores the statute and the Court precedents.

Sheriff’s deputies served a search warrant on a house occupied by Gonzalez.  When he refused to open the door, the officers forcibly entered and confronted Gonzales who held a shotgun.  He fired and killed one officer.  At trial, Gonzalez conceded shooting the officer but contended he thought a gang member was attempting  entrance.  The only issue at trial and on appeal was whether he knew he had shot an officer.

The California Supreme Court upheld the conviction but ordered a reference to determine certain facts, i.e. whether the prosecutor concealed evidence of impeachment.  Ultimately the court denied his claim;
the U.S. District Court denied the petition for habeas corpus. Gonzalez contended one of the prosecution witnesses who testified against him had a  physcological history not disclosed to the defense.  At trial, the witness conceded he had been convicted of murder, had lied and had manipulated the prison system.  Even the majority opinion conceded he had been thoroughly  impeached in front of the jury.  Nevertheless, despite the state supreme court opinion,  the discovery reference ordered by that court, and the denial of the petition by the district court judge, the 2-1 majority held the phsycological history not disclosed by the prosecution violated the Brady rule (prosecutors must disclose exculpatory or impeaching evidence to the defendant prior to trial) and warranted reversal.

In support of its decision the majority cited a dissenting hypothetical opinion in Cullen v. Pinholster, 131 S.Ct., 388 (2011)  in arguing Gonzalez only discovered the evidence after the state court had ruled in his case.

This decision is a travesty.  Apparently the 2 judge majority never tried a criminal case and ignored the jury allocation of evidence.  The jury knew the witness was convicted of  murder, lied and manipulated the prison system.  In effect, thoroughly  impeached.  What did additional psychological evidence establish? The concurring opinion is an exercise in verbal hash, endlessly trying to justify its decision.

This is a simple case.  Did the defendant know the forcible entry was initiated by officers or gang members?  The jury heard all the  witnesses, understood the defense and convicted the defendant.  The majority cites almost no other evidence in the trial other than the testimony of the tainted witness. This case is another “second  guessing”of state courts.   

As usual, the majority cited AEDPA and ignored it.

Cash v. Maxwell, 132 U.S. 611 (2012)

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For the last decade the 9th Circuit has systematically stymied state supreme court death penalty cases by invoking federal habeas corpus.  The Supreme Court has just as repeatedly reversed the 9th Circuit in harsh and censorious language.  In some cases the Court has alleged the 9th Circuit wilfully misread the record; in others, ignored Supreme Court precedents; in others, invoked the wrong legal test.

But not until Cash v. Maxwell has the Court, in the person of Justice Scalia, identified this disreputable record.  After citing the extensive record of 9th Circuit reversals, he decries the 9th Circuit  repeated evasion of AEDPA, “. . .uquestionably [ignoring] these [statutory] commands . . . and invalidated a 26 year old murder conviction  likely making it impossible to retry. . . To make matters worse, having stretched the facts [in Maxwell], the Ninth Circuit also stretched the Constitution . . . It is a regrettable reality that some federal judges like to second guess state courts . . .  The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit.”
N,B. This criticism also applies to Gonzalez v. Wong, reported above.

Arizona v. U.S, 132 U.S. 845 (U.S.)

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The Supreme Court has granted cert. in the 9th Circuit decision, U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011), a 2-1.  Arizona had enacted a comprehensive series of statutes attempting to identify illegal aliens within its borders.The majority decision exercises rhetorical exegesis to grant the U.S. plaintiff an injunction against enforcement  of the statute.  The dissent skewers this incomprehensible statutory analysis.

Reciting the statutory provisions of an Arizona statute enforcing immigration law, the 9th Circuit panel majority invoked preemption of federal law to grant the U.S. motion to enjoin, on a facial basis, enforcement of the statute.  Arguably the parties can argue the language of the statute but the majority completely ignores the dissent analysis that  Congress intended the states to  cooperate in its enforcement of immigration law.  The argument that immigration law is a federal matter is undermined by the specific language of the statute enlisting the states to support the federal government in enforcing immigration law.

The Supreme Court should easily find Congress specifically intended cooperation of the states to assist the U.S. Atty. in enforcing immigration law.  The lawsuit by the U.S. against a state is more likely a political ploy than a serious attempt to enjoin enforcing the statute. Had the U.S. Attorney objected to the Arizona statute it could have negotiated a compromise on some of its terms.  Instead, it elected to eliminate the entire statute.

The competing arguments and the language of the statute are not included in this blog. The case is no longer law and has been decided by the Supreme Court.