Eastern District of California Blog

Judge England Stops Stockton From Banning Live Music At Maxim's Restaurant

The Stockton Record reports that Sacramento U.S. District Judge Morrison C. England, Jr. granted Maxim's Restaurant's request for aTRO to stop the Stockton City Council from barring it from playing live music without a permit at least until he hears the restaurant's First Amendment claim.

 A federal judge Friday said Stockton's restriction of nighttime music and dancing at a Brookside restaurant appeared on initial review to be unconstitutional, and he ordered the city to let the music go on at least until the court considers the case again June 8.

In a case that could affect how City Hall regulates nightlife at bars and restaurants citywide, the restaurant Maxim's claimed in a lawsuit filed Thursday that Stockton's requirement of a permit for live entertainment restricts speech protected by the First Amendment.

U.S. District Court Judge Morrison England Jr. said music is a protected form of speech and that the City Council's denial last week of Maxim's bid for an entertainment permit appeared to be "inappropriate." His order Friday - a temporary measure not unusual in such cases - was to allow entertainment to continue at the restaurant until the case is further argued.

"Blog: Feds In Road Dog Probe Lied," Modesto Bee

Modesto Bee, 5/30/09, "Blog: Feds In Road Dog Probe Lied"

Ninth Reverses Judge Karlton's Ruling That California Laws Violate Dormant Commerce Clause in Civil Suit

In yesterday's opinion in Nat'l Assoc of Optometrists, et. al. v. Brown, et. al., the Ninth Circuit reversed and remanded for further consideration Judge Karlton's ruling that certain California laws regarding eyewear providers violate the Dormant Commerce Clause and enjoining enforcement of those laws.   

Uh, what's the dormant commerce clause?  That's why I don't do civil. 

UOP Responds To Female Basketball Player's Rape Allegations

The Stockton Record reports that the University of the Pacific's responded to a woman basketball player's allegations that she was raped by three men basketball players in a filing in federal court in Sacramento. 

Pacific spokesman Richard Rojo said Thursday that the school does not consider the incident to be a rape.

"We would call it date rape," he said.

Rojo said the university considers "outright rape" and date rape to be different, in that date rape does not involve "a rapist jumping out of bushes and attacking people randomly."

He said, "These are people who knew each other. ... It's a social situation and unfortunately an all-too common problem at universities.

"It doesn't make it right. It's a sexual assault, and that's why the university took action in this matter."

Quote of the Week: "When the Real Estate Market Crashes, A Mistake Can Look Like A Crime"

My quote of the week comes from the always quotable, former AUSA Bill Portanova after the arraignment of his client, an Elk Grove cop charged with mortgage fraud,

Defense lawyer Bill Portanova, who is representing Amanullah Khalil, said outside the courtroom that he has not seen any of the evidence yet.

"What appears to be a simple mistake when the real estate market is hot, is a mistake," Portanova said. "When the real estate market crashes, a mistake can look like a crime."

Sacramento Bee

Yosemite U.S. Magistrate Judge William M. Wunderlich Announces Retirement

Yosemite U.S. Magistrate Judge William M. Wunderlich announced his retirement due to medical issues.  His retirement is effective June 1, 2009.

[Fresno Bee article added here 6/2/09] 

Judge Hollows Upholds Mandatory DNA Testing For Federal Arrestees--No Conviction Required

In what the U.S. Attorney's Office is calling a case of first impression, U.S. Magistrate Judge Gregory G. Hollows rejected constitutional challenges and upheld the mandatory collection of DNA samples for all those arrested upon probable cause for any federal felony.  U.S. v. Pool DNA order available here.  The Federal Defender's Office has announced they will appeal to U.S. District Judge Edward J. Garcia and have applied for a stay of the DNA condition of pretrial release.  Attorneys representing other defendants should strongly consider objecting to any pretrial DNA collection condition and should ask that any such order be stayed pending final decision in the Pool case.  Contact Rachelle Barbour at the FD's office for briefing.

If the government can force the collection of mandatory DNA from presumptively innocent persons, are we not close to the point when everyone's DNA will be in a National database?  NYT, "FBI and States Vastly Expand DNA Databases".  I guess this is all supposed to be ok because we should just trust the government?  Just like we are supposed to have trusted that the government would not overstep the bounds of the Foreign Intelligence Surveillance Act in not warrantlessly wiretapping U.S. citizens?  NYT, "Officials Say U.S. Wiretaps Exceeded Law"  And if DNA testing helps protect the innocent from being wrongly convicted, how come prosecutors object to defense efforts to obtain DNA to exonerate potentially innocent inmates? 

U.S. Attorney's Office Clears Former CA Senate Leader Don Perata

An AP article reports that the U.S. Attorney's Office has informed former California Senate leader Don Perata that it will not be filing corruption charges against him. 

Federal prosecutors on Wednesday declined to file corruption charges against a former California lawmaker, clearing the way for his campaign for Oakland mayor next year.

The U.S. attorney's office in Sacramento announced its decision 2 1/2 months after federal prosecutors in San Francisco reached the same conclusion.

The announcement ends an investigation into former state Senate leader Don Perata that stretches back to 2004 and extended to his family and circle of political associates.

"It's good news for us that justice has been done," said Perata's attorney, George L. O'Connell. "To me, that is a plain indication that they have reached the same conclusion that we have been urging for five years, that Senator Perata did nothing wrong and this is not a case that should be prosecuted."

Sac Bee, 5/28, article

"The First Amendment Still Reigns In This Country," Judge Wanger Rules

"The First Amendment Still Reigns In This Country," Judge Wanger declared in ruling that two attorneys did not violate protective orders in talking to the press about Fresno Police Chief Jerry Dyer's deposition from a police brutality lawsuit:

A Fresno judge ruled Tuesday that two lawyers did not violate protective orders when they spoke to reporters about Fresno Police Chief Jerry Dyer's deposition in connection with a lawsuit alleging police brutality.

"The First Amendment still reigns in this country," U.S. District Judge Oliver W. Wanger said before he dismissed a motion by the city of Fresno to sanction attorneys Peter Kapetan and Charles Barrett.

 

Pugent Sound Christian Insurance Fraud Opening Statements Wednesday

Opening statements in the Kalsfbeek Pugent Sound "Christian Insurance Fraud" Jury Trial start Wednesday, May 27, at 10:30 am before Judge Karlton in Sacramento. The Sekhon & Sekhon trial is dark this week and resumes June 2.