In 2007 California enacted a law banning the sale of handguns that lack the ability to imprint the weapon's make, model, and serial number on the cartridge when the bullet is fired. The purpose of the law is fairly obvious. Imprinting information that identifies the weapon on the cartridge would aid in investigating shootings. The law took effect in 2013.
In Pena v. Cid, 09-cv-01185, in the United States District Court for the Eastern District of California, Judge Kimberly Mueller ruled that this requirement did not implicate the Second Amendment right to bear arms. She ruled that the Second Amendment does not guarantee a right of access to a particular type of handgun.
http://www.bloomberg.com/news/articles/2015-02-27/california-gun-microstamping-law-is-upheld-by-federal-judge
http://www.mercurynews.com/crime-courts/ci_27616476/federal-court-rejects-challenge-california-gun-safety-law
http://www.ocregister.com/articles/california-652651-law-microstamping.html
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County);
Showing posts with label California. Show all posts
Showing posts with label California. Show all posts
Saturday, February 28, 2015
Friday, October 31, 2014
Jurors and the Plea
In Williams v. Swarthout the U.S. Ninth Circuit Court of Appeals reversed a conviction, because the judge erroneously stated after swearing in the jury that the defendant pleaded guilty at the beginning of the trial. The defendant had in fact pleaded not guilty hence the ensuing trial. Earlier during voir dire the judge told the prospective jurors that the defendant pleaded not guilty.
The mistake did become clear until the next day when the jurors, after deliberating for one hour, sent the judge a note asking the judge if he had said that the defendant pleaded guilty. The judge reviewed the transcript and admitted the mistake on the record. The prosecution and court reporter had noted the error, but did not say anything. The defense move for a mistrial. The judge summoned the jury and corrected the record. The judge asked the jurors whether they were unable to accept the correction, but the jury was silent. The judge asked if they didn't pay attention because of a mistaken belief that the defendant pleaded guilty. Again the jury was silent. The judge asked a third time if the jurors would be unable to set aside the mistaken statement that the defendant pleaded guilty. The jury was silent. Lastly the judge asked the jurors to raise their hands if they could not provide the defendant with a presumption of innocence, the right to remain silent, and the standard of proof beyond a reasonable doubt, but no hands were raised. At this point the judge denied the motion for a mistrial.
A few days later one juror sent a note to the judge admitting that he or she had assumed the defendant pleaded guilty and that the issue was simply whether the evidence supported the plea. The juror was dismissed, but had already told the rest of the jury about the note and its content. The remaining jurors each stated individually that they could disregard the court's misstatement as to the defendants plea. The defendant was convicted of false imprisonment and two CSC counts and was sentenced to at least 50 years in prison.
On appeal to the California Court of Appeals the judgment was affirmed. The California Court of Appeals concluded that an error occurred, but that it was cured and hence harmless. The California Supreme Court denied leave to appeal. The defendant then filed for habeas corpus relief. The federal district court agreed with the California Court of Appeals.
The Ninth Circuit reversed. Federal habeas review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Only claims where the state court decision is contrary to or is an unreasonable application of clearly established federal law or where the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. Section 2254(d). The Ninth Circuit ruled that in this case it had to defer to the state court's determination as to whether a federal constitutional error occurred. It ruled that the state court held there was an error according to federal law as well as state law.
However, the Ninth Circuit did not agree that the error was harmless. In fact it noted that the misstatement as to the defendant's plea would have completely eliminated the prosecution's burden of proof if it was not corrected. The court ruled that the judge's first instruction did not cure the error as one juror sent a note showing it had not been corrected days after remaining silent when asked if there was an issue. The second correction was also not adequate even though the jury was silent when asked if any issues remained. The court found that the judge had essentially rebuked the juror who sent the note to such an extent that no other juror would want to freely admit in open court that they were not fair and impartial. Hence the error was not harmless and the defendant was entitled to a writ of habeas corpus and a new trial.
There was a dissent in this case which agreed with the California Court of Appeals that the error was fully cured and hence harmless.
The Ninth Circuit Court of Appeals opinion can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/10/23/11-57255.pdf
http://www.courthousenews.com/2014/10/23/72743.htm
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
The mistake did become clear until the next day when the jurors, after deliberating for one hour, sent the judge a note asking the judge if he had said that the defendant pleaded guilty. The judge reviewed the transcript and admitted the mistake on the record. The prosecution and court reporter had noted the error, but did not say anything. The defense move for a mistrial. The judge summoned the jury and corrected the record. The judge asked the jurors whether they were unable to accept the correction, but the jury was silent. The judge asked if they didn't pay attention because of a mistaken belief that the defendant pleaded guilty. Again the jury was silent. The judge asked a third time if the jurors would be unable to set aside the mistaken statement that the defendant pleaded guilty. The jury was silent. Lastly the judge asked the jurors to raise their hands if they could not provide the defendant with a presumption of innocence, the right to remain silent, and the standard of proof beyond a reasonable doubt, but no hands were raised. At this point the judge denied the motion for a mistrial.
A few days later one juror sent a note to the judge admitting that he or she had assumed the defendant pleaded guilty and that the issue was simply whether the evidence supported the plea. The juror was dismissed, but had already told the rest of the jury about the note and its content. The remaining jurors each stated individually that they could disregard the court's misstatement as to the defendants plea. The defendant was convicted of false imprisonment and two CSC counts and was sentenced to at least 50 years in prison.
On appeal to the California Court of Appeals the judgment was affirmed. The California Court of Appeals concluded that an error occurred, but that it was cured and hence harmless. The California Supreme Court denied leave to appeal. The defendant then filed for habeas corpus relief. The federal district court agreed with the California Court of Appeals.
The Ninth Circuit reversed. Federal habeas review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Only claims where the state court decision is contrary to or is an unreasonable application of clearly established federal law or where the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. Section 2254(d). The Ninth Circuit ruled that in this case it had to defer to the state court's determination as to whether a federal constitutional error occurred. It ruled that the state court held there was an error according to federal law as well as state law.
However, the Ninth Circuit did not agree that the error was harmless. In fact it noted that the misstatement as to the defendant's plea would have completely eliminated the prosecution's burden of proof if it was not corrected. The court ruled that the judge's first instruction did not cure the error as one juror sent a note showing it had not been corrected days after remaining silent when asked if there was an issue. The second correction was also not adequate even though the jury was silent when asked if any issues remained. The court found that the judge had essentially rebuked the juror who sent the note to such an extent that no other juror would want to freely admit in open court that they were not fair and impartial. Hence the error was not harmless and the defendant was entitled to a writ of habeas corpus and a new trial.
There was a dissent in this case which agreed with the California Court of Appeals that the error was fully cured and hence harmless.
The Ninth Circuit Court of Appeals opinion can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/10/23/11-57255.pdf
http://www.courthousenews.com/2014/10/23/72743.htm
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Thursday, July 31, 2014
California Probate Law - LA Clippers Sale Trial
A few days ago a California probate court ruled in the Donald Sterling/Shelly Sterling trust dispute concerning the pending sale of the Los Angeles Clippers to Steve Balmer (Former Microsoft CEO) for $2 Billion. The pending sale occurred under the threat of an NBA takeover and forced sale of the franchise due to allegations discussed at this link. The judge found that Shelly Sterling properly followed the trusts requirements to remove Donald Sterling as a trustee under a capacity clause. The parties had agreed not to include Donald Sterling's actual physical/mental condition as an issue in the trial. So that issue was not before the court. Presumably the idea there was to avoid an expert vs. expert dispute on capacity and resolve the trial more quickly. Donald Sterling revoked the trust after his wife had executed a binding term sheet for the sale of the team.
The National Law Journal Article from July 30, 2014 on the court's decision noted two main new precedents that may be set by the case. The first issue is the invocation of Section 1310b of the California Probate Code. Generally there is an automatic stay of the probate trial court's ruling when an appeal is filed in California under Section 1310a of the Probate Code. Section 1310b allows the court to appoint a temporary trustee to exercise the trustee's powers as though no appeal was pending where there is a need to prevent injury or loss to a person or property. Apparently this section has been only rarely invoked in the past. Its application in the circumstances of a sale is new. However, in this instance the purchase price is the highest offered for an American sports franchise and considerably higher than the other offers in the bidding or Forbes Magazine's estimate of the value of the team from January 2014. The offer also comes with an expiration date. You can never really know how much the team would go for an a second round of bidding, but now that the previous bids are public knowledge it probably would be less than the current offer. Sterling bought the then San Diego Clippers for $12.5 million in 1981 and moved them to Los Angeles in 1984 which at the time lead to its own set of conflict and litigation with the NBA. So it is probably more likely that not, as the court ruled, that the team would lose value if it had to go back on the market for new bids. The seems to be a decent plain language interpretation of loss and injury as they exist in the statute. The main question marks here are that this section has not been used much and it was used in distinct contexts from this one. The court's ruling does not prevent an appeal. It just means that the sale can close and that there is no stay of that sale. If Donald Sterling were to prevail on appeal he could be awarded monetary damages rather than getting back the team. He could seek review and an injunction of the 1310b ruling and the whole case before the California Court of Appeals and failing that the California Supreme Court. The standard of review on appeal would probably be abuse of discretion by the trial court. That is a tough standard to meet in any appeal.
The second issue mentioned in the Article revolves around the revocation of the trust. The action itself, which might according to witnesses who testified at trial cause $500 million in loans to be recalled by banks, was not the focus of the court so much as the powers of the trustee after termination. Trustees can wind up the affairs of a terminated trust under Section 15407(B) of the California Probate Code. Although this power does not always involve major transactions, the court ruled that the sale of the team was a winding up transaction which the Shelly as trustee had the power to complete. This is especially true since the sale terms sheet had been signed and made binding before the trust was revoked.
Links:
http://www.nationallawjournal.com/home/id=1202665258209/Clippers-Trust-Precedents-Leave-Probate-Attorneys-Buzzing#
http://www.clipsnation.com/2014/7/29/5947135/sterling-v-sterling-13-fin
http://online.wsj.com/articles/judge-clears-way-for-2-billion-sale-of-l-a-clippers-to-steve-ballmer-1406585315
http://www.foxsports.com/west/story/attorney-donald-sterling-to-keep-up-fight-over-clippers-073014
http://www.forbes.com/sites/kurtbadenhausen/2014/07/16/the-worlds-50-most-valuable-sports-teams-2014/
http://www.nydailynews.com/sports/basketball/nba-exec-commish-order-sterling-turn-control-clippers-wife-article-1.1772790
http://www.bloomberg.com/news/2014-07-10/sterling-trust-revocation-increases-odds-of-loan-default.html
http://www.foxnews.com/sports/2014/07/28/judge-rules-against-donald-sterling-clears-way-for-sale-la-clippers/
The National Law Journal Article from July 30, 2014 on the court's decision noted two main new precedents that may be set by the case. The first issue is the invocation of Section 1310b of the California Probate Code. Generally there is an automatic stay of the probate trial court's ruling when an appeal is filed in California under Section 1310a of the Probate Code. Section 1310b allows the court to appoint a temporary trustee to exercise the trustee's powers as though no appeal was pending where there is a need to prevent injury or loss to a person or property. Apparently this section has been only rarely invoked in the past. Its application in the circumstances of a sale is new. However, in this instance the purchase price is the highest offered for an American sports franchise and considerably higher than the other offers in the bidding or Forbes Magazine's estimate of the value of the team from January 2014. The offer also comes with an expiration date. You can never really know how much the team would go for an a second round of bidding, but now that the previous bids are public knowledge it probably would be less than the current offer. Sterling bought the then San Diego Clippers for $12.5 million in 1981 and moved them to Los Angeles in 1984 which at the time lead to its own set of conflict and litigation with the NBA. So it is probably more likely that not, as the court ruled, that the team would lose value if it had to go back on the market for new bids. The seems to be a decent plain language interpretation of loss and injury as they exist in the statute. The main question marks here are that this section has not been used much and it was used in distinct contexts from this one. The court's ruling does not prevent an appeal. It just means that the sale can close and that there is no stay of that sale. If Donald Sterling were to prevail on appeal he could be awarded monetary damages rather than getting back the team. He could seek review and an injunction of the 1310b ruling and the whole case before the California Court of Appeals and failing that the California Supreme Court. The standard of review on appeal would probably be abuse of discretion by the trial court. That is a tough standard to meet in any appeal.
The second issue mentioned in the Article revolves around the revocation of the trust. The action itself, which might according to witnesses who testified at trial cause $500 million in loans to be recalled by banks, was not the focus of the court so much as the powers of the trustee after termination. Trustees can wind up the affairs of a terminated trust under Section 15407(B) of the California Probate Code. Although this power does not always involve major transactions, the court ruled that the sale of the team was a winding up transaction which the Shelly as trustee had the power to complete. This is especially true since the sale terms sheet had been signed and made binding before the trust was revoked.
Links:
http://www.nationallawjournal.com/home/id=1202665258209/Clippers-Trust-Precedents-Leave-Probate-Attorneys-Buzzing#
http://www.clipsnation.com/2014/7/29/5947135/sterling-v-sterling-13-fin
http://online.wsj.com/articles/judge-clears-way-for-2-billion-sale-of-l-a-clippers-to-steve-ballmer-1406585315
http://www.foxsports.com/west/story/attorney-donald-sterling-to-keep-up-fight-over-clippers-073014
http://www.forbes.com/sites/kurtbadenhausen/2014/07/16/the-worlds-50-most-valuable-sports-teams-2014/
http://www.nydailynews.com/sports/basketball/nba-exec-commish-order-sterling-turn-control-clippers-wife-article-1.1772790
http://www.bloomberg.com/news/2014-07-10/sterling-trust-revocation-increases-odds-of-loan-default.html
http://www.foxnews.com/sports/2014/07/28/judge-rules-against-donald-sterling-clears-way-for-sale-la-clippers/
Wednesday, February 20, 2013
California Mixed Motive Defense
The California Supreme Court has added a mixed motive defense to employment discrimination actions. Even where a jury finds unlawful discrimination was a substantial motivating factor in the termination of an employee no damages, back pay, or reinstatement may be awarded where the employer is able to prove it would have terminated the employee anyway. The case, Harris v. City of Santa Monica, centered around a pregnant city employee who was fired by the city. The Plaintiff claimed she was fired because she was pregnant and the city countered that it was for safety and tardiness reasons.
The opinion did rule that injunctive or declaratory relief and reasonable attorney's fees and costs would still be available to a Plaintiff where the mixed motive defense is successfully invoked by the defense. Under the appropriate circumstances an employer might also be liable for discrimination as unlawful harassment under a different provision within the California Fair Employment and Housing Act even where the mixed motive defense precludes damages for employment discrimination.
http://www.surfsantamonica.com/ssm_site/the_lookout/news/News-2013/February-2013/02_08_2013_California_Supreme_Court_Overturns_Santa_Monica_Big_Blue_Bus_Discrimination_Decision.html
The Opinion can be accessed here: http://www.courts.ca.gov/opinions/documents/S181004A.PDF
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
The opinion did rule that injunctive or declaratory relief and reasonable attorney's fees and costs would still be available to a Plaintiff where the mixed motive defense is successfully invoked by the defense. Under the appropriate circumstances an employer might also be liable for discrimination as unlawful harassment under a different provision within the California Fair Employment and Housing Act even where the mixed motive defense precludes damages for employment discrimination.
http://www.surfsantamonica.com/ssm_site/the_lookout/news/News-2013/February-2013/02_08_2013_California_Supreme_Court_Overturns_Santa_Monica_Big_Blue_Bus_Discrimination_Decision.html
The Opinion can be accessed here: http://www.courts.ca.gov/opinions/documents/S181004A.PDF
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
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