Timbs v. Indiana to be cited in PAGA cases in 3...2...1...


On Wednesday, February 20, 2019, the United States Supreme Court held, in Timbs v. Indiana, that the Eighth Amendment’s ban on excessive fines applies to the states. You can find plenty of analysis about this decision out there as it applies to things like state asset forfeiture laws, so I won’t even try to duplicate all of that analysis here, But it occurs to me that we should expect to see this holding tossed into the mix in PAGA cases on the theory that a large PAGA penalty violates the Eighth Amendment. How well that works remains to be seen, since, just spitballing here, a large PAGA penalty is pretty much only going to arise when an employer has lots of employees and violates lots of wage and hour provisions lots of times. Of course, out at the fringe, this argument might have some traction. I’m sure we’ll see in the next few years.

Law-less Friday: San Diego's arbitrary and capricious six-foot rule

I take my constitutional rights very seriously.  For example, I am more aware of first amendment rights after blogging for so long.  And who hasn't said "thank goodness" for that Fifth Amendment a time or three after a hazy Friday night?  But I've noticed that the contours (oh, the foreshadowing) of rights seem to get tested quite frequently in areas that many consider to be unsavory.  Thus, it is with great sadness that I report to you that in Coe v. City of San Diego (Sept. 28, 2016), the Court of Appeal (Fourth Appellate District, Division One), held that application of San Diego's six-foot rule was not arbitrary and capricious on the facts before it, affirming the revocation of a permit held by appellant Suzanne Coe.  What, you ask, is the six-foot rule?  I am glad you asked.  The six-foot rule states that it is unlawful for a responsible person to allow a nude person within six feet of a patron at a nude entertainment business.  In a nutshell, Coe's establishment violated the six-foot rule habitually since 2006.  San Diego finally pulled the plug, revoking her permit to operate. I am not going to explain operation of the no-touch and no-fondling rules. And I used to think that being a progressive, liberal state meant that everyone gets the freedom to express themselves however they want.

Ninth Circuit finds that California's "good cause" requirement for a license


The Ninth Circuit did us a solid yesterday.  In Edward Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), the Court held, 2-1, that California's restrictions (as applied in San Diego County) on firearm carry in public improperly infringe upon the Second Amendment's guarantee of a citizen's right to keep and bear arms.  At least in the more populated counties of California, you essentially cannot obtain a license to carry a concealed weapon; almost no cause (other than being best buddies with the Sheriff or a prominent politician) is good enough.  Los Angeles County and Los Angeles City are both on the extreme end of this construction.  But this gives me hope that when I choose to carry a weapon for self defense, it will be a lawful act.  I am not suggesting, by the way, that I would ever choose to act in an unlawful manner; I'm just looking forward to the time when fewer of my rights will be implicitly negated by impossible requirements attached to their exercise.

The discussion of what it means to "bear" arms, in the historical context, is highly entertaining.

Episode 3 of the Class Re-Action Podcast is now live


Paul Bland, of Public Justice, was more than up to the challenge of explaining the intellectual dishonesty and depravity of the Supreme Court's most recent hatchet job on employees and consumers.  Well, he didn't use those words, so consider that my editorial paraphrase of what happened in Episode 3.  Available for download, streaming audio in your browser and through iTunes. 

Ninth Circuit notices that we still have some constitutional rights, holding that rights exist at border crossings


I was concerned when United States v. Cotterman was originally decided by the Ninth Circuit in 2011.  In that decision, the panel held that personal property, such as laptops and other digital storage devices, could be transported to a secondary site for a thorough inspection, even with no reason for suspicion.  En banc review was granted in 2012.  On March 8, 2013, in United States v. Cotterman (9th Cir. 2013), the Court, en banc, modified that terrible holding.

The Court observed:

Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography.

Slip op., at 5-6.  Framing the issue, the Court continued:

Although courts have long recognized that border searches constitute a “historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained,” United States v. Ramsey, 431 U.S. 606, 621 (1977), reasonableness remains the touchstone for a warrantless search. Even at the border, we have rejected an “anything goes” approach. See United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc).

Slip op., at 7.  The Court recognized that a search of electronic devices must be reasonable, even at the border, given the character of digital information:

Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Slip op., at 22.   "This is not to say that simply because electronic devices house sensitive, private information they are off limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property."  Slip op., at 24.

In this case, the majority concluded that, under the circumstances of the case, the search was reasonable.  Regardless, I am encouraged that, as of now, the mere use of a password to protect data does not provide a reasonable basis for detailed inspection of a computer.

AT&T Mobility LLC receives some due process love from the Ninth Circuit, this time as a plaintiff


When the Ninth Circuit decided, Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the immediate reaction from the commentator class was to conclude that it was a substantial setback for plaintiffs and a "pro-defense" decision.  However, a recent decision of the Ninth Circuit suggests that, possibly, a black-and-white reading of Mazza could be inaccurate.  In AT&T Mobility LLC v. AU Optronics Corp. (Feb. 14, 2013), the Ninth Circuit considered whether the District Court erred when it dismissed California anti-competition state law claims based on purchases that occurred outside California.  The Court concluded that, to the extent conspiratorial conduct was sufficiently connected to California, the application of California law would be neither arbitrary nor fundamentally unfair.

The Court explained that allegations of a conspiracy to price fix, occurring in California, were sufficient to render the allegations constitutionally sound:

Nor would the application of California law impermissibly undermine the policies of other states, as Defendants contend. Because the Due Process Clause does nothing but circumscribe the universe of state laws that can be constitutionally applied to a given case, we “need not . . . balance the competing interests of California and [other states].” United Farm Workers of Am., AFL-CIO v. Ariz. Agric. Emp’t Relations Bd., 669 F.2d 1249, 1256 (9th Cir. 1982); see also Allstate, 449 U.S. at 308 n.10 (“[T]he Court has since abandoned the weighing-of-interests requirement.”). Objections based on the interests of other states are more properly raised under a choice of law analysis, or potentially under a challenge predicated on some other provision of the U.S. Constitution. Defendants raised no such arguments before the district court.

Slip op., at 15.

The question, then, is whether the focus on the conspiracy situated in California would change the analysis of Mazza, which turned on the issue of where consumers received allegedly misleading advertisements.  California can certainly articulate a sound basis for its interest in deterring price-fixing conspiracies occurring within its borders.

The unconstitutional dismantling of California's judicial branch continues unchallenged

I have written previously about the unconstitutionality of underfunding California's Courts, including a Daily Journal article posted here.  And with every additional funding cut, I believe that the legislative and executive branches march further down the path of unconstitutional conduct.  In the latest example of grevious injury to our Courts, the Los Angeles Superior Court has announced $30 million in additional cuts (about $70 million in prior cuts).  These cuts include the loss of 56 courtrooms, layoffs of 100 additional non-courtroom staff (above 329 layoffs and 229 attrition-based reductions), and a significant reduction in court reporter availability.

It is my fondest wish that a victim of these latest layoffs, a litigant, and a judge will all step forward and challenge the constitutionality of starving a co-equal branch of government.  Where are the checks and balances when one allegedly equal branch exists at the mercy of politicians that refuse to make the tough choices necessary to ensure, as a first priority, that the judicial branch is capable fo resolving the legal disputes it was created to resolve?

Regardless of whether you represent plaintiffs, or defendants, civil litigants or those charged with crimes, you cannot acquiesce to this relentless assault on fundamental, constitutional rights.   This is not a political question.  The California legislature is not constitutionally empowered to eviscerate the judicial branch.

Write your legislators.  Tell them that they must discharge their constitutional obligations before any other consideration.

And no, this is not the end of my rant.  It's just a pause...

"The government may not compel a commercial ISP to turn over the contents of a subscriber's e-mails without first obtaining a warrant based on probable cause."

On December 14, 2010, the U.S. Court of Appeals for the Sixth Circuit held, in United States of America v. Steven Warshak (6th Cir. December 14, 2010), that the" government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."  Slip op., at 23.  The Court actually found that the e-mail of today is entitled to the same protection as the postal mail of days long past.  Score one for the protection of constitutional rights.  Don't get the wrong idea though; Steven Warshak and the other defendants are not good citizens.  Lot's of mail and wire fraud convictions were affirmed.

The government can sneak on your property and track your car with GPS, no warrant required; illegal options exist to jam trackers

In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), a panel of the Ninth Circuit concluded that no Fourth Amendment issues were implicated when police snuck onto Pineda-Moreno’s property at night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance and without a warrant. The panel held that none of that implicated the Fourth Amendment, even though the government conceded that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.

A petition for rehearing en banc was filed.  The petition did not receive the majority vote necessary for rehearing and was denied.  Chief Judge Kozinski had some choice words for the Court:

Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

Slip op., at 11504.  On fire, the Chief Judge continued:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

Slip op., at 11508.  In a particularly introspective moment, the Chief Judge argues that the bench is lacking in persons familiar with the life experiences of the poor:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

Slip op., at 11508-9.  Ouch.

Speaking of ways to protect your privacy from a government run amok, Gizmodo points out that certain cheap (but illegal) GPS jammers are available in an article prompted by this decision.  Please don't engage in any unlawful conduct to protect your constitutional rights.  That would be wrong.

Breaking News: Ninth Circuit issues en banc decision in Dukes v. Wal-Mart Stores, Inc.

The Ninth Circuit has issued its long-awaited, en banc Opinion in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010).  Of course, I have no idea if you were actually waiting for it, so I am only referring to myself.  As for how long it took to issue the Opinion, it took some time to write an Opinion that is about 136 pages long.  The majority described the holding as follows:

Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964. After detailed briefing and hearing, the district court certified a class encompassing all women employed by Wal-Mart at any time after December 26, 1998, and encompassing all Plaintiffs’ claims for injunctive relief, declaratory relief, and back pay, while creating a separate opt-out class encompassing the same employees for punitive damages. We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

Slip op., at 6146-47.  The massive opinion and dissent are simply too long for me to thoroughly cover this morning.  However, Circuit Judge Graber offered this brief comment on the entirety of the opinion:

GRABER, Circuit Judge, concurring: 

The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding:

Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies.

If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members. I therefore concur fully in the majority opinion.

Slip op., at 6237-38.

I will write more on this Opinion as soon as I am able, but a quick perusal suggests that this decision will have a lasting impact on certification motions in the Ninth Circuit.  Unless the U.S. Supreme Court wants to weigh in on this decision.