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

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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.

Constitutional Crisis in our Courts: One step closer to meltdown

I am informed that, beginning June 2013, there will be NO court reporters for civil matters in the Los Angeles Superior Court.  Part-time court reporters will be laid off, and all full-time court reporters in civil will transfer to the criminal courts.

How much longer will we allow the two funded branches of government to continue down this path?  This is not constitutional.  Also, please be advised that I am not interested in hearing that California doesn't have enough money to correctly fund the Courts.  We have plenty of money.  The federal government has plenty of money (the highest tax receipts in history this year).  Lots of money.  Money everywhere.  It's how they SPEND that money.  Rather, it is how WE spend that money, since we own the bums running things off the cliff for us.  That's the problem - how the money is spent.  If the constitution of this state is to be treated like a bird cage liner, then it is no wonder that the institutions built upon it all look like crap now.

I wonder how much longer we will be able to retain the best of our judges.

AOC moves to smother criticism by judges, stifling First Amendment rights along the way

A story first made the rounds quietly in November of last year about a proposed ethics rule that is just broad enough and vague enough that it can be used as a tool by AOC to punish any judge with the gumption to criticize decisions of the AOC.  That rule has passed, unsurprisingly (Note: when you see a news report that something entirely likely to occur is "unexpected," that should tip you off to the agenda of the reporter, not that the event was "unexpected").  It was entirely expected that it would pass.  It was proposed to stifle dissent by using the costs associated with an ethics inquiry to shut down free speech.

We have two simultaneous problems in California's judicial branch of government, a constitutional and co-equal branch.  First, the judicial branch is catastrophically underfunded.  The Los Angeles Superior Court should not be shutting down courtrooms.  A member of the bench who shall remain nameless told me that with the coming courtroom closures in Los Angeles, the average caseload that is currently running somewhere between 550 and 600 cases per judge will jump by about 150 cases per courtroom.  What sort of justice will anyone receive under those conditions?

Second, the AOC has ballooned into a bloated bureaucracy that serves itself.  Why did the AOC mushroom from 100 employees to well over 1,000 employees inside of a decade?  Fixing this bloat would save some money.  Getting rid of the endless boondoggle of the unicorn known as CCMS saved some money, but it doesn't close the gap between current funding levels and what those levels should be at to have courts in each county that can manage the caseloads they face.  I don't know the right caseload for a civil trial court, but it isn't 550 case, and it surely isn't 700 cases.  You'd probably receive real attention and a better measure of justice if those caseloads were more like 250-300 cases per courtroom.

I condemn the current and past legislatures for allowing this to happen.  I condemn AOC for succumbing to corruption and administrative bloat (I refer to the allegation of embezzlement in the alleged amount of $100,000 that was not reported or charged as an example of that).

So to the massive audience of Legislators reading this and waiting for my go-signal, here it is: Fix the funding shortfall (who cares if you have to cancel a high speed train to do it - this is a co-equal branch of government we're talking about) and root out the administrative bloat (in other words, start insisting upon the firing of AOC staff until you have half the number you started at and then reassess, and then get rid of some more).

By the way, if someone handed me half the amount of money that was wasted on CCMS, I could have a Statewide court system database up and running in a few years, with enough left for me to retire on in a castle that I would have constructed out of rare marble on my own private island.

Memorial Day

As this post on Popehat eloquently says, we should defend fundamental liberties (such as free speech), not because someone on "our side" was wronged, but because all of us lose when the fundamental liberties of anyone are trampled.

Governor Brown proposes taking unconstitutional under-funding of Courts to unconscionable new high (low)

Yesterday, Governor Brown's rosy revenue projections ran smack into the brick wall of reality.  California's budgetary deficit isn't the paltry $9 billion predicted by the Governor.  Heck, we could have found $9 billion in the state's couch cushions.  No problem.

Instead, our deficit, thanks to the inexcusable fiscal malfeasance of years of legislators spending beyond our means, and the inexcusable electorate allowing them to do so, is more like $16 billion.  That's billion with a "B."  This year.  A one-year deficit against a $91 billion budget.

The solution proposed by the Governor is to (1) tax us more than we already are, and (2) cut stuff.  What gets cut?  As far as our constitutionally created branch of government knows as the judiciary is concerned, the cut proposed is another $544 million from the courts budget, which has already lost $650 million over the last three years.

One retired judge recently told me that the Los Angeles Superior Court is just rearranging deck chairs on the Titanic.  But, for the most part, the leaders of the Courts, while complaining loudly about the cuts, are too political to take on the Legislature and Governor over this constutional crisis.

Where is the leadership? When are the advocates of Court access and the constitutional scholars and the judges crushed under this unchecked robbery going to stand up and demand that the third branch of government receive the first distribution of funds, regardless of what revenue is available.  The Courts are entitled to protected funds sufficient to discharge their constitutional role in California.

See, for example, coverage in the Los Angeles Times.

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...

If you thought that Court under-funding in California was unconstitutional last year.... "Whoa, Nelly!"

According to press reports, the legislature's court budget cuts of $150 million for operations and $310 million in court construction funding have increased after Governor Jerry Brown used line item veto power to slash another $22 million from California trial court operations and security.  Underfunding at this level is unconstitutional.  The judiciary is a co-equal, constitutional branch of government.  It cannot function correctly at this funding level.  The Legislature and Governor do not suffer equivalent operational impairment from the budget cuts they impose elsewhere.  Only the judicial branch must suplicate, hat in hand, for enough money to do the people's work.

The past three years account for a 30% general funding cut for California's Courts.  I don't think their obligations decreased by 30%.  If anything, a difficult economy creates more litigation events.

I wrote about this previously here and copied a Daily Journal article on the subject here.

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.

Ninth Circuit: Court faced with question of first impression when asked to construe CCRAA

In a suit alleging violation of the California Consumer Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code § 1785.1 et seq., the Ninth Circuit, in Carvalho v. Equifax Information Services LLC (9th Cir. Aug. 18, 2010), faced a question of statutory interpretation not yet answered by a California Court.  Explaining its task, the Court said:

The California courts have yet to consider whether a plaintiff must demonstrate that a disputed item is inaccurate to obtain relief for a violation of the CCRAA’s reinvestigation provisions. However, because the CCRAA “is substantially based on the Federal Fair Credit Reporting Act, judicial interpretation of the federal provisions is persuasive authority and entitled to substantial weight when interpreting the California provisions.” Olson v. Six Rivers Nat’l Bank, 3 Cal. Rptr. 3d 301, 309 (Ct. App. 2003) (internal citations omitted).

Slip op., 12117.  After examining how federal courts approached the same question under the FCRA, the Court concluded that "inaccuracy" would be a requirement of a claim arising under California's CCRAA:

“We generally adhere to the maxim of statutory construction that similar terms appearing in different sections of a statute should receive the same interpretation.” United States v. Nordbrock, 38 F.3d 440, 444 (9th Cir. 1994); see also Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 37 (1st Cir. 2010) (deeming the term “inaccurate” in section 1681i(a) to be “essentially the same” as the term “incomplete or inaccurate” in section 1681s-2(b)). Moreover, we operate under the assumption that California courts would interpret the FCRA and CCRAA consistently. See Olson, 3 Cal. Rptr. 3d at 309. Accordingly, in considering whether Carvalho’s credit report was inaccurate within the meaning of the CCRAA, we are guided by Gorman’s “patently incorrect or materially misleading” standard.

Slip op., at 12119.

The Court also rejected a preemption argument, finding that the savings provision of the FCRA would not have saved a state law violation statute if the state law remedy were not also available.