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.

Dear Twitter, pull your head out

I customarily cross-post to Twitter when I write a new post here.  That may change soon.  The evidence I have examined is strongly suggestive that Twitter engages in viewpoint-based censorship by asserting its "standards" in a very non-uniform manner.  Twitter is a private company.  They can do this.  But I can vote with my feet if Twitter doesn't want to remain neutral in viewpoint suppression.  As a blogger, and irrespective of personal views of the speaker, I am sensitive to the long-term, dire consequences that will result if large businesses and/or governments succeed in limiting expression of entire swaths of opinions.  I was particularly disturbed when I read that Twitter had blocked the account of Glenn Reynolds, a pioneering law/politics/current events blogger known as Instapundit.  He made an ill-considered point in a rather rough way, but, at the same time, individuals advocating the murder of police officers go unpunished.  This is unjustifiable if one assumes that Twitter is viewpoint neutral in its censoring.

I don't approve of or condone all of the messages that have resulted in some high-profile account banning of late on Twitter, but the simple fact is that Twitter has permitted far worse commentary to remain on Twitter without consequence.  Maybe this behavior explains, in part, why Twitter is likely up for sale.

Chamber of Commerce concerned over proposed regulation that would prohibit class action bans in consumer agreements

Nothing says Cinco de Mayo like arbitration. I have no idea what that means, so don't ask.  Anyhow, the Consumer Financial Protection Bureau will propose a regulation today that will ban contract terms that prohibit consumers from filing class action lawsuits.  And the Chamber of Commerce is none to happy about this development.  You can read the details at politico.com, which posted an opinion piece by Lisa A.Rickard, the president of the U.S. Chamber of Commerce's Institute for Legal Reform and David Hirschmann, the president and CEO of the U.S. Chamber of Commerce's Center for Capital Markets Competitiveness.  If you don't have time to read the article, allow me to paraphrase: "Damn trial lawyers! Get off my lawn!"

Law-less Friday (a day early): paragraphs you never thought you'd read in court opinions

Every now and then I look at a new appellate decision and experience the shock of reading something that I would have guessed was certain to never come up before seeing it in print.  So I was helping my daughter study for a history test the other day.  Her fifth grade class was in a chapter about American industrialization and the expansion of the United States to the Pacific (manifest destiny and all that). The war with Mexico received a mention in her study guide, along with a treaty entered into with Mexico at the end of the war, the Treaty of Guadalupe Hidalgo.  Trick question: what are the chances that an appellate decision today would rest, in part, on the need to examine the Treaty of Guadalupe Hidalgo? You should say "zero," but, since I asked, you know that's not the answer.  The correct answer is, ding ding ding, 100%.

In Friends of Martin's Beach v. Martin's Beach 1 LLC (April 27, 2016) the Court of Appeal (First Appellate District, Division Two) considered issues arising in a dispute between private land owners and the public over an area of inland dry sand at a popular beach.  Here is the paragraph that resulted in my double-take:

The case presents a number of intriguing issues, among them the meaning of Article X, section 4 of the California Constitution and its application, if any, to lands for which title is derived from a provisional Mexican land grant confirmed by a federal patent issued in the 19th century. These issues require consideration of a federal statute known as the Act of 1851 and the Treaty of Guadalupe Hidalgo, which that Act implemented. The case also concerns the common law theory of dedication of land to public use and what facts suffice to establish the elements of such a claim. Creating yet additional interest, the State of California and its agencies contend in an amicus brief that they were indispensable parties to this action because it involves California tidelands and that the judgment rendered without them is void.

Slip op., at 1-2. As an aside, if these issues also sound "intriguing" to you, you are officially a law nerd.

Today's lesson: Never say never.

Law-less Friday: Irony and Hipocrisy are no bar to standing

We all need a bit of levity on Friday, so take a moment and enjoy one paragraph from City of Palm Springs v. Luna Crest (March 17, 2016), a recent opinion from the Fourth Appellate District, Division Two, that captures the humor sometimes hidden in the law.

Luna Crest, Inc. opened a medical marijuana dispensary in the City of Palm Springs without obtaining a permit to test whether the Palm Springs ordinance requiring such a business to have a permit was invalid.  Luna Crest sought an injunction against further enforcement, claiming that federal drug laws preempt the City’s ordinance.  The Court observed:

To be sure, as the City points out, there is a certain irony, if not hypocrisy, in Luna’s invocation of federal drug laws as a basis for invalidating the City’s permitting requirements, given Luna’s intention to operate a medical marijuana dispensary in violation of those very federal drug laws.  The City cites no authority, however, for the proposition that irony or hypocrisy alone may vitiate standing, and we are aware of none.  We turn, therefore, to the merits of Luna’s claims.

Slip op., at 5.  Never let someone challenge your standing just because of the irony or hypocrisy of your position.  Never.

Have a great weekend, and, as they say, smoke 'em if you got 'em.

STUPIDERER: Two North Carolina teens hit with child porn charges after consensual sexting→

We're well on our way to self extinction by using unnatural selection to make ourselves as dumb as possible. Two teens sending dirty pictures to each other should be a parental matter, not a criminal case with both willing participants getting charged with adult felonies.

Source: Arstechnica

Article III federal judge takes prosecutor to task for lying in court

In an article from December 2014, Sidney Powell offers a colorful description of a proceeding in which a federal judge excoriated a federal prosecutor for lying in his courtroom.  Sidney Powell, Judge Kevin Thomas Duffy Blasts Federal Prosecutor For Lying in Court (December 16, 2014) observer.com.  Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.  Sadly, these sorts of abused of power appear to be increasing in frequency (or the technology age has rendered them easier to detect and widely disseminate).

You can look at maps on your cellphone in California

As a victim (who later prevailed at trial) of law enforcement over-reach regarding the various Vehicle Code provisions relating to cell phones, it is nice to see some common sense out there (it is rare these days).  In People v. Spriggs (Feb. 27,  2014), the Court of Appeal (Fifth Appellate District) held, after weighty deliberation, that a statute about talking on a cell phone really doesn't apply to looking at a map on the phone (seeing as how the "talking" part isn't implicated).  Offered for informational purposes and your entertainment only.

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.

Appellate briefs you have to read to believe....and even then

As Captain Renault said, "I'm shocked, shocked, to find that gambling is going on in here!"  And like Captain Renault, not really.  On the last day of 2013, I noted in a post some news stories about the happenings in a class action suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it.  Those articles were eye-opening to say the least.  But now I can safely say that you haven't seen anything yet.  I have in my digital fingers the appellate briefs from the main case (the appeal of an injunction issued by the trial court).  The Respondent's Brief, in particular, is something you won't see very often.  Check them out:

• Appellants' Opening Brief
• Respondent's Brief
• Appellants' Reply Brief