The Ninth Circuit Court of Appeals today released an en banc order in REDDING v. SAFFORD UNIFIED SCHOOL DISTRICT #1, No. 05-15759, a civil rights appeal.
Archive for January, 2008
The Ninth Circuit Court of Appeals today released an opinion in SILVAS v. E*TRADE, No. 06-55556, a federal appeal. The panel consisted of Harry Pregerson, John T. Noonan, and Stephen S. Trott, Circuit Judges.
TROTT, Circuit Judge:
Based on the doctrine of preemption, the district court dismissed Plaintiffs-Appellants’ class action suit against . . .
The Ninth Circuit Court of Appeals today released an order in CORNHUSKER CASUALTY v. SAMPLES, No. 06-35106, a diversity appeal. The panel consisted of Ronald M. Gould and Richard A. Paez, Circuit Judges, and Lyle E. Strom, District Judge.
GOULD, Circuit Judge:
This case arises from a dispute over whether Cornhusker Casualty Insurance Company (”Cornhusker”) insured Rockeries, Inc. (”Rockeries”), a Washington landscaping company, on October 22, 2004, the day Leanne Samples was fatally injured in an automobile accident with an employee of Rockeries. Brooks Samples, Leanne’s husband and the administrator of her estate, brought a wrongful death action against Rockeries and its owners in Washington state court. Cornhusker then brought suit in federal district court against Rockeries and Samples seeking a declaratory judgment that, prior to the accident, it had effectively cancelled its policy insuring Rockeries because of nonpayment of premiums. The district court granted summary judgment in favor of Cornhusker and denied Samples’ cross-motion for summary judgment. Samples appealed the district court’s decision. We had jurisdiction pursuant to 28 U.S.C. Â§ 1291. In an opinion filed concurrently with this order, we rejected Cornhusker’s waiver argument and Samples’ equitable estoppel claim. This order certifies to the Washington State Supreme Court the remaining and dispositive question of state law before us–namely, whether notice. . .
The Ninth Circuit Court of Appeals today released an opinion in ORBERSON v. USA, No. 04-35268, an appeal in a civil action against the United States. The panel consisted of Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William W Schwarzer, District Judge.
SCHWARZER, District Judge:
I. PROCEDURAL BACKGROUND Brian Musselman (Musselman) was gravely injured in a . . .
The Ninth Circuit Court of Appeals today released an opinion in CORNHUSKERS CASUALTY v. SAMPLES, No. 06-35106, a diversity appeal. The panel consisted of Ronald M. Gould and Richard A. Paez, Circuit Judges, and Lyle E. Strom, District Judge.
GOULD, Circuit Judge:
Brooks Samples (”Samples”) appeals the district court’s grant of summary judgment in favor of Cornhusker Casualty Insurance Company (”Cornhusker”) and denial of Samples’ cross-motion for summary judgment in Cornhusker’s declaratory judgment action. The district court held that Cornhusker, before the accident that resulted in the death of Samples’ wife, effectively cancelled its policy insuring the company responsible for her fatal injuries. The crux of the district court’s holding is its determination that certified mail satisfies the notice requirement for cancellation of an insurance policy under the Revised Code of Washington (”RCW”) Â§ 48.18.290. Samples challenges this conclusion and also argues that Cornhusker, because it informed the insured that it would collect the premium in a quarterly payment plan, is estopped from denying coverage under its insurance policy when the insured paid its last installment less than three months after the previous payment. Cornhusker, in addition to endorsing the district court’s statutory interpretation, contends that Samples waived his right to argue that certified mail, unlike regular mail, must actually be delivered in order to satisfy the notice requirement of RCW Â§ 48.18.290 because he did not raise the issue before the district court. We have juris. . .
The Ninth Circuit Court of Appeals today released an opinion in SOLIS v. BELTRAN, No. 05-56637, a prisoner appeal. The panel consisted of Dorothy W. Nelson, Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.
REINHARDT, Circuit Judge:
Plaintiff Salvador Solis (”Solis”), a former inmate at the Los Angeles County jail, brought this pro se civil action alleging constitutional violations stemming from Solis’s . . .
The Ninth Circuit Court of Appeals today released an opinion in COSTCO WHOLESALE v. HOEN, No. 06-35538, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.
O’SCANNLAIN, Circuit Judge:
In these consolidated appeals, we must decide whether certain restrictions imposed by the State of Washington on the sale of wine and beer are preempted by federal antitrust laws. If the challenged restraints are subject to federal preemption, we must then decide whether they might be otherwise saved by operation of the State’s powers under Section 2 of the Twenty-first Amendment to the United States Constitution. I A In early 1933, the Twenty-first Amendment to the Constitution was passed in Congress. It was then ratified by convention in 36 states and went into effect in December 1933, ending this country’s experiment with Prohibition. Importantly, the Twenty-first Amendment not only repealed the Eighteenth Amendment to the Constitution, but it also, in. . .
The Ninth Circuit Court of Appeals today released an opinion in HESS v. BOARD OF PAROLE, No. 06-35963, a habeas corpus appeal. The panel consisted of Raymond C. Fisher and Marsha S. Berzon, Circuit Judges, and Judith M. Barzilay, Judge..
FISHER, Circuit Judge:
Willie Fern Hess appeals from the district court’s denial of his 28 U.S.C. Â§ 2254 habeas corpus petition. He asserts that Oregon Revised Statute Â§ 144.125(3) (1991), which allows the Parole Board to postpone his parole release date if it finds he has “a psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health or safety of the community,” is unconstitutionally vague. We have jurisdiction under 28 U.S.C. Â§Â§ 1291 and 2253, and we affirm. BACKGROUND Hess is an inmate at the Snake River Correctional Institution in Oregon, who has been incarcerated since 1984 as a result of multiple convictions on rape, sodomy and child sexual abuse charges. Hess first became eligible for parole in May 1994. Under Oregon law, the Oregon Board of Parole and Post-Prison Supervision (”Board”) must release a prisoner on his parole release date unless it finds that his parole. . .
The Ninth Circuit Court of Appeals today released an amended order in USA v. BANKS, No. 05-10053, a criminal appeal. The panel consisted of J. Clifford Wallace, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.
BYBEE, Circuit Judge:
Leland Devine Banks was convicted of violence in aid of a racketeering enterprise (”VICAR”), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon. He was sentenced to a total of 450 months in prison. Banks appeals his conviction and sentence, raising five alleged errors by the district court. First, he argues that the district court gave erroneous instructions for the VICAR counts. Second, he argues that the evidence was insufficient to convict him on the VICAR and use of firearm counts. Third, he argues that the district court erred in giving a “de facto Allen charge.” Fourth, he argues that the district court erred in admitting into evidence the underlying facts of a prior felony conviction. Finally, he argues that cumulative error produced a miscarriage of justice. We have jurisdiction under 28 U.S.C. Â§ 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. We REVERSE his convictions for use of a firearm in furtherance of a crime of violence because his VICAR convictions were essential elements of those crimes. We AFFIRM the district court in all other respects. I A. Factual Background Leland Banks had issues with Kenny Gilmore. For starters, they belonged to rival Crips gangs in Las Vegas: Banks was a member of the Rolling 60s, and Gilmore belonged to the Valley View Crips. But Banks also had, or thought he had, a personal score to settle with Gilmore. Banks had once overheard Gilmore’s girlfriend use the word “crab,” apparently one of the most disrespectful names a Crips member can be . . .
The opinion, filed on October 25, 2007, slip opinion 14183, and appearing at 506 F.3d 756 (9th Cir. 2007), is amended as follows:
1. At slip op. 14187, second full paragraph; 506 F.3d at 759, second full paragraph, replace:
“We have jurisdiction under 28 U.S.C. Â§ 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. We AFFIRM the district court in all other respects.” with “We have jurisdiction under 28 U.S.C. Â§ 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. . . .
The Ninth Circuit Court of Appeals today released an opinion in ARIZONA LIFE COALITION, INC. v. STANTON, No. 05-16971, a civil rights appeal. The panel consisted of David R. Thompson and Richard C. Tallman, Circuit Judges, and Kevin Thomas Duffy, Senior United States District Judge.
TALLMAN, Circuit Judge:
Arizona Life Coalition (”Life Coalition”) appeals a summary judgment in favor of Stacey Stanton and other members of the Arizona License Plate Commission (collectively the “Commission”). Life Coalition contends that the Commission violated its First Amendment right to free speech and Fourteenth Amendment right to equal protection by arbitrarily denying its application for a special Arizona organization license plate that would portray its message “Choose Life.” We agree that the Commission violated Life Coalition’s First Amendment right to free speech and therefore do not reach its equal protection argument. Messages conveyed through special organization plates-although possessing some characteristics of government speech–represent primarily private speech. Through its spe. . .