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Ninth Circuit Strikes Down Ban on Open and Concealed Carry of Firearms

Because I have been involved with some Hawaii based Second Amendment litigation and have moderated a Second Amendment panel for the ABA, this blog will sometimes dabble into that area.

The Ninth Circuit today, in a dramatic 120 page opinion, struck down the County of San Diego's ban on open and concealed carry of firearms.  This is heady constitutional stuff and there is just no way to craft a blog post that will do the decision or the issue justice.  

This decision, and many others, flow from the U.S Supreme Court's decisions in Heller v. District of Columbia and McDonald v. City of Chicago.  I have a lot of materials on my resource page here.

In short, the Ninth Circuit today found that the Second Amendment's right to bear arms applied outside of the home and within the county limits of San Diego.

Fellow UH Law alum, and blogger, Julie Tappendorf, has a post on this case here.

Fourth Circuit - Piracy Conviction Affirmed

The Fourth Circuit Court of Appeals affirmed a Somali pirates' conviction for various federal offenses including piracy and violence against maritime navigation. The case is USA v. Shibin and the opinion can be found here.

This case arose out of several piracies off the Somali coast in 2010 and 2011.  The defendant had various roles in the piracies, including negotiator and "regular" pirate.

The FBI, in conjunction with Somali "Host Nation Defense Forces", arrested Shibin in Somalia.

Among the issues on appeal are the argument that Shibin did not actually venture into the high seas, but was only charged with aiding and abetting piracies that occurred on the high seas and was not personally on the high seas.  Interpreting the United Nations Convention on the Law of the Sea, the court found that the geographic element of piracy did not apply to those that are charged with facilitating piracy.  Sl ong as the non-high seas conduct incited or facilitated acts committed on the high seas, the Article was violated.

Shibin also argued that he was forcibly removed from Somalia and had not opportunity to challenge his removal in Somalia, noting that there was no extradition treaty between Somalia and the United States.  This argument has failed before in U.S. courts, under the Ker-Frisbie Doctrine, and it failed here.

Shibin also argued that the prosecution was based on statutes that could not apply extraterritorially.  The court found constitutional authority for the extraterritorial crimes:

Congress’ power to enact statutes that extend extraterritorially is derived generally from the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10; the Treaty Power, U.S. Const. art. II, § 2, cl. 2; and the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18.

Thus far, there are no circuit splits, so it seems that piracy cases won't be making it to the Supreme Court any time soon.

Coast Guard - You Want Your Boat Back? We Set Bond Amount - Angelex v. US

Hot off the Press:  the Fourth Circuit Court of Appeals just issued a decision arising out of a "Magic Pipe" case and the shipowner's attempt to post a bond allowing the offending vessel to sail.  The case is Angelex, Ltd. v. United States of America and the opinion can be found here. 

The United States is a signatory to the MARPOL treaty of 1978 which seeks to eliminated international pollution from the marine environment.  To implement the treaty, Congress enacted the "Act to Prevent Pollution from Ships", codified at 33 U.S.C. 1901-15.  The Act and the regulations implemented under the Act's authority require ships to maintain an Oil Record Book which records discharges of oil. During a Coast Guard inspection of Angelex's vessel, the inspector discovered that the oily water separator was bypassed and a crewmember advised the inspector that oily water was discharged. That discharge was not noted in the Oil Record Book.

As is customary, the Coast Guard requested that the Customs Service withhold "clearance" so that the vessel could not depart from the U.S. port.  The Act does allow shipowners to post a bond which, if approved, would allow the vessel to sail.  The Coast Guard and shipowner tried to negotiate a bond amount, but could not reach an agreed upon sum.  The shipowner brought suit and with the judge's assistance reached an agreement as to bond amount, subject to approval by Coast Guard Headquarters.  Headquarters did not approve the agreed-upon conditional amount.  The judge issued an order directing the bond amount and other terms.  The government appealed.

The Fourth Circuit overruled the district judge's decision.  It found that under the Act to Prevent Pollution from Ships, the Coast Guard had fully discretionary authority to set the bond amount.  Therefore, the courts had no jurisdiction under the Administrative Procedures Act.  Also, because the statute had a provision that allowed a claim against the government for unreasonable detention.  This safeguard against overreach by the government made the shipowner's requested injunctive relief to be beyond the federal court's power.

Ninth Circuit Approves Use of Sub-Regions for Endangered Species Determinations

The Ninth Circuit Court of Appeals just affirmed the use of geographic sub-regions to determine the impact of commercial fishing on critical habitat and population levels.  The case is Alaska v. Lubchenko and the opinion can be found here.

From the court's summary:

The panel affirmed the district court’s judgment rejecting the claims of fishing industry representatives and the State of Alaska in an action challenging limitations to the commercial fishing industry the National Marine Fisheries Services placed on sub-regions of the Pacific Ocean inhabited by the endangered western Distinct Population Segment of Stellar sea lions.

The panel held that use of sub-regions did not violate the Endangered Species Act and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. The panel also held that the district court did not err by refusing to order preparation of a Record of Decision pursuant to the National Environmental Policy Act because it would be premature in the absence of the agency’s proposed action based on the Environmental Impact Statement record it develops.

In the case, the federal government used the "western Distinct Population Segment" of the Steller Sea Lion in Alaska.  Two of the seven sub-regions have experienced population declines attributed to nutritional stress.  The National Marine Fishereise Service limited fishing in those areas, which prompted this lawsuit.

At issue was whether the Endangered Species Act precluded the use of a sub-region approach to species health as opposed to a species-level inquiry.  The argument was that the species as a whole has a different population trend than a sub-region.  Analyzing the Endangered Species Act, the court ultimately held that the government could use sub-regions.

Stay tuned.

Fifth Circuit En Banc Decision on Longshore Act

The Fifth Circuit, en banc, just reversed an earlier panel decision in a Longshore Act case which turned on the situs of the injury and whether it met the jurisdictional requirements of the Longshore and Harbor Worker Compensation Act.

En Banc decision is here.

Per the Court:

In particular, the BRB found that the claimant’s employment activities with NODSI took place in an area or location “adjoining” navigable waters“customarily used by an employer in loading [or] unloading . . . a vessel” and therefore NODSI’s facility met the situs requirement of the Act. We conclude that because the NODSI facility where Mr. Zepeda worked did not border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled to no benefits under the Act from Petitioner NODSI. We therefore vacate the award of the BRB as against NODSI and remand for further proceedings.

Circuit Split ALERT....  Stay tuned.

New Ninth Circuit Admiralty Case - Himalaya Clause, Bills of Lading and Statutes of Limitation

The Ninth Circuit just issued a decision regarding guarantor liability for unpaid amounts following shipment of goods under several bills of lading.

The case is Clevo, Co. v. Hecny Transportation, Inc. and the original opinion case be found here.

From the court's syllabus (which is a handy-dandy tool the Ninth Circuit is using to provide a snapshot of the opinion:

Affirming the district court’s summary judgment in an admiralty action filed bya seller of computer parts, the panel held that misdelivery claims against a freight forwarder were barred by a one-year limitations period set forth in bills of lading.

The panel held that a guarantee, which established no express statute of limitations, was initially effective to place the seller and the freight forwarder in direct contractual privity. That initial relationship was modified when the bills of lading issued. By operation of a Himalaya clause, the benefit of the one-year statute of limitations in the bills of lading was extended beyond the non-vessel-operating common carrier that issued the bills of lading to the freight forwarder, an agent of the carrier.

New Ninth Circuit Longshore Case - Is Suicide Compensable Injury?

I am in trial this week, but a very interesting case was just handed down by the Ninth Circuit Court of Appeals.  The title is Kealoha v. Leeward Marine, Inc. and the opinion can be found here.

The Longshore Act precludes compensation for injuries caused by an employee's "willful intent to injure or kill himself."  33 U.S.C. 903 (c).  But, courts interpreting similar provisions of state worker compensation laws have allowed for compensation if the suicide, or attempted suicide, was work related.  Those courts that have found the statutory bar inapplicable have done so using a "chain of causation" test instead of a "fault" or "voluntariness" test.

In this case, the Administrative Law Judge applied an "irresistable impulse" test.  The Ninth Circuit held that the causation test was the more reasoned approach, stating:

Given the best-reasoned modern trend of case law, we hold that a suicide or injuries from a suicide attempt are
compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable
work-related injury and the suicide attempt. The claimant need not demonstrate that the suicide or attempt stemmed
from an irresistible suicidal impulse. The chain of causation rule accords with our modern understanding of psychiatry. It
also better reflects the Longshore Act’s focus on causation, rather than fault. See 33 U.S.C. § 904(b) (“Compensation
shall be payable irrespective of fault as a cause for the injury.”).

No apparent circuit splits, but this is an issue to watch.

 

Tough Month for Environmental Groups in Ninth Circuit - Shell Offshore v. Greenpeace

Earlier this month, the Ninth Circuit Court of Appeals shot down the Sea Shepherd Conservation Society on a piracy theory (my post here).  This week, Greenpeace is in the hotseat.  This case arises from a preliminary injunction obtained by Shell Oil Company against Greenpeace for protest activities in the Arctic.  The case is Shell Offshore, Inc. v. Greenpeace, Inc. and it can be found here.

The 2-1 decision affirmed the Alaska District Court's injunction against various protest activities directed at Shell's exploration vessels.  

This case has several different and thorny legal issues, including First Amendment, corporate status, jurisdictional reach of federal court's injunction power.

Of special note, the Ninth Circuit found that the federal court had supplemental jurisdiction over Shell's claims beyond the territorial sea (where the court's diversity jursidiction power ends), but before Shell's vessel was attached to the seabed (where the court's Outer Continental Shelf Lands Act jurisdiction would lie).

Peg Legs and Eye Patches - Ninth Circuit Wades Into Piracy

"You don't need a peg leg or an eye patch."

Author note:  I challenge any of my intrepid readers to find as odd a statement in any opinion.

Ninth Circuit Chief Judge Kozinski at his finest, for sure.  Today, the Ninth Circuit ruled on an Alien Tort Statute brought by a permitted whale hunter against a conservation group who, as shown below, has forcibly interfered with their whaling operations.  The case is:  Institute of Cetacean Research v. Sea Shepherd Conservation Society, the opinion is here, the concurrence/dissent by Judge M. Smith is here (the dissent is targeted at the Ninth Circuit's order to transfer the case to a different judge based on his "errors" and concerns about his ability to be "impartial").

The case went to the Ninth Circuit after the trial court denied a motion for preliminary injunction brought to enjoin the alleged piratical activities of the Sea Shepherd vessels.  The Ninth Circuit found that the Alien Tort Statute did empower the courts to enjoin piratical activities and found such an injunction to be entirely warranted by the facts, as alleged.

This will be a fun quote for your next piracy brief:

 You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

 

 

More on the "Vessel" case - Radio Interview with Owner

Fane Lozman, the successful petitioner-owner of the not-a-vessel-house at issue in Lozman v. City of Riviera Beach, No. 11-626 (Jan. 15, 2013) was interviewed recently on the radio show "The Justice Hour with Lisa Macci."

In Lozman, the Court held that Lozman's houseboat is not a "vessel" under 1 U.S.C. § 3  (a "watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water") because a "reasonable observer, looking to the home's physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water."

Macci is a lawyer with a twice-weekly program that focuses on legal issues, and she has made a mp3 of the Lozman interview available here (alternative wma formatted download here).