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.

Moss v. United States Secret Service, 711 F.3d 941 (9th Cir. 2013)

 A public official must violate a Constitutional right “clearly established” by the Supreme Court in order for a government agent to lose immunity from litigation. The Justices have insisted a high level of generality of the term “clearly established” Supreme Court law is unacceptable in 42 U.S.C. 1983 or Bivens actions; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  The Supreme Court has frequently chastised the rationale of decisions on immunity written by 9th Circuit judges, and in an earlier case decided in 2011 the Justices said this: “We have repeatedly told trial courts-and the Ninth Circuit in particular-not to apply ‘clearly established law’ in qualified immunity cases at a high level of generality;” al Kidd v. U.S., 131 S,Ct. 2074 (2011). Rephrased, interpret the rule narrowly. 

 During the 2004 election President Bush was campaigning in an Oregon town. Two groups followed the motorcade down the street. One group supported Bush and the other opposed him.  The Secret Service directed security of the President and ordered city police to make several traffic arrangements on the streets. At various points during the movment of the Presidential car it was necessary for police to adjust the location of the two groups. No one was arrested or injured.

The anti Bush crowd subsequently filed a lawsuit against the U.S. Secret Service and their agents alleging a Bivens violation. This absurd case was dismissed by the U.S. District Court but the activists appealed to the 9th Circuit on First Amendment grounds their “speech” had been discriminated against.  Why? Because they were ordered to stay away from the motorcade at a distance further than the pro-Bush supporters.

The 9th Circuit invariably tries to “constitutionalize” conduct in order to foreclose Congress or the states from remedying their alleged mistakes. According to the 9th Circuit, this act of street location constituted “viewpoint discrimination,” a First Amendment doctrine prohibiting government officials from discriminating against public expression of viewpoints. Although the Moss case arose on the agent’s motion to dismiss the complaint, the 9th Circuit decision on the pleadings is exactly what the Supreme Court condemned. 

The complaint alleged subjective intent of the Secret Service to discriminate. The  pleadings contained no objective facts as required by al-Kidd and contained legal conclusions- the type condemned by the Supreme Court. According to the complaint, the anti Bush crowd was ordered further away from the President than the pro Bush crowd but no one suppressed the anti Bush crowd “speech.”  The task of the Secret Service is protecting the President, not measuring distance between crowds. 

This case caused numerous judges to dissent.  Needless to say, the idea of disallowing immunity to agents trying to manage an acrimonious crowd consistent with Presidential security ignores reality.    


Johnson v. Williams, 133 S.Ct.1088 (2013)

Note: after the draft of this case was written, the Supreme Court reversed the 9th Circuit  in another case; Ryan v. James.   A death penalty case, the favorite 9th Circuit method of finding ineffective assistance of counsel, was reversed by the Supreme Court in a  per curiam opinion. The Supreme Court remanded the case for the 9th Circuit to reconsider its Ryan opinion in “the light of Johnson v. Williams.”  A 1981 9th Circuit case (James v. Ryan, 679 F.3d 780 (9th Cir. 2012).reversed by the Supreme Court in 2013. Ryan v. James, 133 S.Ct. 1088 (2013).

And note:  The 9th Circuit actually affirmed a death penalty case (2-1) in Gulbandonson v. Ryan



The 9th Circuit continues its reversal record in Johnson v. Williams that would have been incredibly unjust to the prosecution and the people of California.  Fortunately the Supreme Court reversed.

A procedural decision, Johnson is the type of case of little interest to the public, but significant to criminal procedure in general and the appellate process in particular.  If the pundits and critics of the death penalty want to know the cause for delay in courts, they can cite this case as another example of embarrassing rulings by the 9th Circuit.   The Supreme Court reversal is so obvious the reader may wonder about the integrity of some members of the Ninth Circuit who wrote the reversed the original decision entitled Williams v. Johnson, 646 F.3d 626 (9th Cir. 2011).

Charged with felony murder (underlying felony is robbery) of a store clerk, the evidence in Williams was not in question. Williams admitted at trial that she was the driver of a getaway vehicle but did not enter the store and thought her companions who actually killed the store clerk had entered just to “case” the place.

The jury disbelieved her 11-1 in a few hours.  During jury deliberations the jury foreman informed the judge that the holdout juror mentioned “jury nullification, worried about the severity of the penalty, and held a very reasonable doubt  (not the  legal test of “reasonable doubt).” The judge interviewed the jury foreman, all the members of the jury, and the one holdout.  Concluding the juror was refusing to comply with the law, the judge excused him.  The replacement juror voted for conviction. 

Williams appealed to the California Court of Appeal, and the Justices wrote their opinion citing a recent California Supreme Court case on the law of excusing holdout jurors.  The state appellate court concluded the juror excusal was justified for “cause” under California law and not because he held out based on the evidence.  Conviction affirmed.  Williams’ habeas corpus petition in U.S. District Court was denied and she appealed.

The 9th Circuit held the state court had not considered the federal claims of the Sixth Amendment right to a jury trial. California law parallels federal law on the Sixth Amendment but the California Court of Appeal did not mention it in their opinion although they extensively discussed the subject of jury excusal under  Absent any record the state court had  considered the Sixth Amendment, the 9th Circuit panel reversed.

Inexcusable decision.  The case was a routine criminal trial; the defendant only denied her complicity in the actual murder despite driving the getaway car with two companions who had just killed the store clerk and fled the scene with her. The jury disbelieved the defendant.   One juror worried about extraneous issues, including the severity of the penalty-which a juror is not entitled to consider.  The trial judge carefully examined the jurors and made a decision to excuse the holdout.

In the first place, trial judges consider the demeanor, attitude and answers to questions asked of a juror. The appellate court only read a cold record.  Even the trial record alone established the attempt by the trial judge to understand the reason for the holdout by one juror and concluded he should be excluded. Not in the 9th Circuit of course, by judges who never tried a criminal case, and against the opinion of three state court judges and an a federal trial judge

Reversed by the Supreme Court.  Unanimously.  The Justices engaged in technical questions of appellate practice involving the appropriate methodology for federal courts to review a state court judgment on habeas corpus.  Although the Supreme Court decision discusses the failure of state courts to always cite federal court decisions (except of the Supreme Court) in their decisions, they are are not bound to follow them.  A state court judgment on appeal is presumed correct although rebuttal is occasionally possible. The federal court decisions do not call for review of state court appeals unless lhe error is egregious.

Justice Scalia concurs in the Supreme Court opinion but asserts the state court judgments on the merits are enough and a  review of whether they omitted to include specific federal claims is irrelevant. He points out that the  decison in this case allowing rebuttal of state courtdecisions will continue to allow federal courts, and the 9th Circuit in particular, a loophole they are sure to exploit.

The most damaging part of the 9th Circuit decision is this language from the Supreme Court: ” The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit.”  This comment is evidence of deplorable juducial conduct.  



Hartmann v. Cal. Dept. of Corrections, 707 F.3d 1114 (9th. Cir. 2013)

It is difficult to define “Wiccan” because the word includes an amalgam of rites and rituals that apparently attempt to form a secularist religion.  Regardless of its mission or an understanding of its purpose, Wiccan prisoners in state prisons considered themselves religious enough to demand a chaplain.  Prison officials held hearings and administratively denied Wiccan requests.  Unsurprisingly, several of the Wiccans sought judicial review in U.S. District Court alleging violation of every conceivable Constitutional right possible.

Plaintiffs filed a First Amendment Free Exercise claim; a First Amendment Establishment claim; a Fourteenth Amendment Equal Protection Claim; the Religious Land Use and Institutionalized Persons Act;  Article I Section 4 of the California Constitution, i.e.  the equivalent of the federal First Amendment Establishment Clause. The core of the Wiccan 42 U.S.C. 1983 claim sought public expense to hire a full time chaplain. Plaintiffs alleged that a Wiccan “chaplain” was available only infrequently, but all other major religious faiths employ representives paid at public expense and always available.  It took three amended complaints before the district court denied all claims.  Plaintiffs appealed to the 9th Circuit.

To its credit, the 9th Circuit panel denied all claims except the First Amendment Establishment Clause and the State Constitution Freedom of Religion Exercise Clause. The 9th Circuit panel noted not every inmate is entitled to a special spiritual adviser, but the court allowed the pleadings to remain on the Establishment Clauses, state and federal. According to the panel, the Wiccans can attempt to prove at trial the criteria used by the prison in employing a “chaplain” is not neutral. Of course this will require discovery, trial time, attorney fees and possible appeal.  And you wonder why the 9th Circuit is cluttered with these absurd cases. 

With respect, the rationale for this decision is unclear, vague and of no value as precedent in future cases.  The 9th Circuit panel cited several cases from the Supreme Court and other Circuits concluding that judges are not administrators and should not interfere in the administration of a prison by those employees and mangers who understand and work within the system. This advice has been repeatedly ignored by the 9th Circuit, ordering  prison officials to comply with certain requests costing the Department money, delaying processing and supervision of inmates, and otherwise interfering with administration of an institution housing irresponsible, vicious and dangerous inmates.

The Hartmann opinion is worthless and ought to be reheard.  

 In one of the 9th Circuit’s more recent departure from reality: the state prison (in a federal court) cannot cut hair of an inmate who alleges his religion forbits it; Warsoldier v. Woodford, 418 F.3d 989 (2005). And this was a court case?