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Tag: 9th circuit

  • 9th Circuit rethinks ruling that bolstered Trump’s authority to deploy troops

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    Three of the country’s most powerful judges met in Pasadena on Wednesday for a rare conclave that could rewrite the legal framework for President Trump’s expansive deployment of troops to cities across the United States.

    The move to flood Los Angeles with thousands of federalized soldiers over the objection of state and local leaders shocked the country back in June. Five months later, such military interventions have become almost routine.

    But whether the deployments can expand — and how long they can continue — relies on a novel reading of an obscure subsection of the U.S. code that determines the president’s ability to dispatch the National Guard and federal service members. That code has been under heated debate in courts across the country.

    Virtually all of those cases have turned on the 9th Circuit’s decision in June. The judges found that the law in question requires “a great level of deference” to the president to decide when protest flashes into rebellion, and whether boots on the ground are warranted in response.

    On Wednesday, the same three judge panel — Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu — took the rare move of reviewing it, signaling a willingness to dramatically rewrite the terms of engagement that have underpinned Trump’s deployments.

    “I guess the question is, why is a couple of hundred people engaging in disorderly conduct and throwing things at a building over the course of two days of comparable severity of a rebellion?” said Miller, who was appointed to the bench in Trump’s first term. “Violence is used to thwart the enforcement of federal law all the time. This happens every day.”

    The question he posed has riven the judicial system, splitting district judges from appellate panels and the Pacific Coast from the Midwest. Some of Trump’s judicial appointees have broken sharply with their colleagues on the matter, including on the 9th Circuit. Miller and Bennett appear at odds with Ryan D. Nelson and Bridget S. Bade, who expanded on the court’s June ruling in a decision Monday that allowed federalized troops to deploy in Oregon.

    Most agreethat the statute itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell spasms of violent domestic unrest, the law Trump invoked has almost no historical footprint, and little precedent to define it.

    “It’s only been used once in the history of our country since it was enacted 122 years ago,” California Solicitor General Samuel Harbourt told the court Wednesday.

    Attorneys from both sides have turned to legal dictionaries to define the word “rebellion” in their favor, because the statute itself offers no clues.

    “Defendants have not put forward a credible understanding of the term ‘rebellion’ in this litigation,” Harbourt told the panel Wednesday. “We’re continuing to see defendants rely on this interpretation across the country and we’re concerned that the breadth of the definition the government has relied on … includes any form of resistance.”

    The wiggle room has left courts to lock horns over the most basic facts before them — including whether what the president claims must be provably true.

    In the Oregon case, U.S. District Judge Karin Immergut of Portland, another Trump appointee, called the president’s assertions about a rebellion there “untethered to the facts.”

    But a separate 9th Circuit panel overruled her, finding the law “does not limit the facts and circumstances that the President may consider” when deciding whether to use soldiers domestically.

    “The President has the authority to identify and weigh the relevant facts,” the court wrote in its Monday decision.

    Nelson went further, calling the president’s decision “absolute.”

    Upon further review, Sung signaled a shift to the opposite interpretation.

    “The court says when the statute gives a discretionary power, that is based on certain facts,” she said. “I don’t see the court saying that the underlying decision of whether the factual basis exists is inherently discretionary.”

    That sounded much more like the Midwest’s 7th Circuit decision in the Chicago case, which found that nothing in the statute “makes the President the sole judge of whether these preconditions exist.”

    “Political opposition is not rebellion,” the 7th Circuit judges wrote. “A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.”

    The Trump administration’s appeal of that decision is currently before the Supreme Court on the emergency docket.

    But experts said even a high court ruling in that case may not dictate what can happen in California — or in New York, for that matter. Even if the justices ruled against the administration, Trump could choose to invoke the Insurrection Act or another law to justify his next moves, an option that he and other officials have repeatedly floated in recent weeks.

    The administration has signaled its desire to expand on the power it already enjoys, telling the court Wednesday there was no limit to where troops could be deployed or how long they could remain in the president’s service once he had taken control of them.

    “Would it be your view that no matter how much conditions on the ground changed, there would be no ability of the district court or review — in a month, six months, a year, five years — to review whether the conditions still support [deployment]?”

    “Yes,” McArthur said.

    Bennett pressed the point, asking whether under the current law the militia George Washington federalized to put down the Whiskey Rebellion of 1794 could “stay called up forever” — a position the government again affirmed.

    “There’s not a word in the statute that talks about how long they can remain in federal service,” McArthur said. “The president’s determination of whether the exigency has arisen, that decision is vested in his sole and exclusive discretion.”

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    Sonja Sharp

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  • Trump slams judge he picked as court tests limits of president’s power to deploy troops

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    President Trump has often locked horns with the 9th Circuit Court of Appeals, with the once left-leaning court putting a persistent drag on his first-term agenda.

    And now, even after remaking the bench with his own appointees, the president is still tangling with the West Coast’s federal appellate court — a situation poised to boil over as the circuit juggles multiple challenges to his use of the National Guard to police American streets.

    “I appointed the judge and he goes like that — I wasn’t served well,” Trump told reporters Sunday, lashing out at U.S. District Judge Karin Immergut of Portland after she temporarily blocked the deployment of federalized troops.

    “To have a judge like that, that judge ought to be ashamed of himself,” Trump said, referring to Immergut, who is a woman.

    The president has long railed against judges who rule against him, calling them “monsters,” “deranged,” and “radical” at various points in the past.

    Trump has also occasionally sniped at conservative jurists, including U.S. Supreme Court Chief Justice John Roberts, whom he called “disgraceful” after the court rejected his bid to overturn the 2020 election.

    But this weekend’s spat marked a shift in his willingness to go after his own appointees — a turn experts say could become much sharper as his picks to the appellate bench test his ambition to put boots on the ground in major cities across the U.S.

    “The fact that a pretty conservative judge ruled the way she did is an indication that some conservative judges would rule similarly,” said Ilya Somin, a law professor at George Mason University and a constitutional scholar at the Cato Institute.

    The 9th Circuit handed the administration an early victory in the troop fight this spring, finding that courts must give “a great level of deference” to the president to decide whether facts on the ground warrant military intervention.

    That ruling is set to be reviewed by a larger appellate panel, and could ultimately be reversed. The circuit is also now set to review a September decision barring federalized troops in California from aiding in civilian law enforcement, as well as Immergut’s temporary restraining order blocking the deployment over the weekend.

    In the meantime, the 9th Circuit’s June decision has served as a guidepost for states seeking to limit what Oregon called a “nationwide campaign to assimilate the military into civilian law enforcement.”

    “That decision is binding, and it does require a substantial degree of deference on the factual issues,” Somin said. “[But] when what the president does is totally divorced from reality, that limit is breached.”

    Immergut appeared to agree, saying in her ruling that circumstances in Portland this fall were significantly different than those in L.A. in the spring. While some earlier protests did turn violent, she wrote, recent pickets outside Portland’s ICE headquarters have featured lawn chairs and low energy.

    “Violence elsewhere cannot support troop deployments here, and concern about hypothetical future conduct does not demonstrate a present inability to execute the laws using nonmilitary federal law enforcement,” the judge wrote, addressing the 9th Circuit decision.

    “The President is certainly entitled ‘a great level of deference,’” Immergut continued. “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground. … The President’s determination was simply untethered to the facts.”

    But exactly where the appellate court may draw the line on presidential fact-finding is tricky, experts said.

    “How much deference is owed to the president? That’s something we’re all talking about,” said John C. Dehn, a professor at Loyola University Chicago School of Law.

    Whether courts can review the president’s judgment at all is a matter that splits even some of the president’s most conservative judicial picks from his current Justice Department attorneys.

    So far, Trump has relied on an esoteric subsection of the U.S. Code for the authority to send soldiers on immigration raids and to control crowds of protesters.

    Dehn and others have characterized that reading of the code as semantic and divorced from its legal context.

    “They’re looking at the words in a vacuum and arguing the broadest possible meaning they can think of,” Dehn said. “The administration is not engaged in good faith statutory interpretation — they’re engaged in linguistic manipulation of these statutes.”

    Immegur agreed, quoting Supreme Court precedent saying “[i]nterpretation of a word or phrase depends upon reading the whole statutory text.”

    For some conservative legal scholars, Trump appointees’ willingness to push back on repeated deployments could signal a limit — or a dangerous new escalation in the administration’s attacks on jurists who defy them.

    “It’s obvious the administration is trying to do this on a bigger scale,” Somin said. “Ideally we would not rely on litigation alone to deal with it.”

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    Sonja Sharp

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  • Trump taps ‘Tough Patriot’ — L.A. lawyer known for crypto, guns — as 9th Circuit judge

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    He’s never held public office or donned a judge’s robes, but an arch-conservative Los Angeles County attorney is racing toward confirmation on the 9th Circuit Court of Appeals, accelerating the once-liberal court’s sharp rightward turn under President Trump.

    A competitive target shooter with a background in a cryptocurrency, Eric Tung was approached by the White House Counsel’s Office on March 28 to replace Judge Sandra Segal Ikuta, a Bush appointee and one of the court’s most prominent conservatives, who is taking senior status.

    A new father and still a relative unknown in national legal circles, Tung found an ally in pal Mike Davis, a reputed “judge whisperer” in Trump’s orbit. Speaking to the New York Post in mid-March, Davis touted Tung as Ikuta’s likely successor.

    The Pasadena lawyer appeared on a Federalist Society panel at the Reagan Library this year, debating legal efforts to restrain “ ‘agents’ of the left.”

    “Eric is a Tough Patriot, who will uphold the Rule of Law in the most RADICAL, Leftist States like California, Oregon, and Washington,” Trump wrote on Truth Social when the nomination was announced in July.

    The response from California senators was apoplectic.

    “Mr. Tung believes in a conception of the Constitution that rejects equality and liberty, and that would turn back the clock and continue to exclude vast sections of the American public from enjoying equal justice under the law,” said Sen. Alex Padilla.

    In the past, senators from a potential judge’s home state could block a nomination — a custom Trump exploded when he steamrolled Washington senators to install Eric D. Miller to the 9th Circuit in 2019.

    Tung has been tight-lipped about his ascent to the country’s busiest circuit. He did not respond to inquiries from The Times.

    A Woodland Hills native and conservative Catholic convert, Tung made a name for himself as a champion of the crypto industry and elegant legal writer, frequently lecturing at California law schools and headlining Federalist Society events.

    After graduating from Yale and the University of Chicago Law School, he clerked for Supreme Court Justices Antonin Scalia and Neil Gorsuch before joining the white-shoe law firm Jones Day, a feeder to the Trump Justice Department.

    Many lauded the nomination when it was first announced, including the National Asian Pacific American Bar Assn.

    “Eric is a highly regarded originalist who would follow in the footsteps of Justice Scalia, for whom he clerked,” said Carrie Campbell Severino, president of the Judicial Crisis Network, a conservative legal advocacy group.

    Groups on the left, including Alliance for Justice, Demand Justice and the National Council of Jewish Women, have lobbied against putting Tung on the appellate court.

    If confirmed, Tung will be Trump’s 11th appointment to the 9th Circuit, a court the president vowed to remake when he first took office in 2017.

    During Trump’s first term, Judge Ikuta was part of a tiny conservative minority on the famously lopsided bench, a legacy of President Jimmy Carter’s decision to double the size of the circuit and pack it with liberal appointees.

    Many Trump judges ruffled feathers at first, and most have shown themselves to be “pretty conservative and pretty hard nosed,” said Carl Tobias, a professor at the University of Richmond School of Law.

    Their ranks include the former Hawaii Atty. Gen. Judge Mark J. Bennett, as well as the circuit’s first openly gay member, Judge Patrick J. Bumatay.

    Trump’s appellate appointees helped deliver him several controversial recent decisions, including the finding in June that Trump had broad discretion to deploy the military on American streets. Another 9th Circuit ruling this month found that the administration could all-but eliminate the country’s refugee program via an indefinite “pause.”

    But they’ve also clashed sharply with the Justice Department’s attorneys, even in cases where the appellate panel ultimately sided with the administration.

    That’s what the president is trying to avoid this time around — particularly with his picks headed in the west, experts said.

    “People on the far right are pushing [Trump] to have people who will be ‘courageous’ judges — in other words, do things that are really unpopular that Trump likes,” Tobias said.

    Tung may fit the bill. In addition to his crypto chops and avowed support for constitutional originalism, he has been an ardent defender of religious liberty and an opponent of affirmative action. He shoots competitively as part of the International Defensive Pistol Assn.

    Both Tung and his wife Emily Lataif have close ties to the anti-abortion movement. Tung worked extensively with the architect of Texas’ heartbeat bill; Lataif interned for the Susan B. Anthony List, an anti-abortion policy group that seeks to make IUDs and emergency contraception illegal and opposes many forms of in-vitro fertilization.

    “Emily is the epitome of grace under pressure, as was evidenced … when she and Eric had to evacuate their home during the California wildfires, only days after welcoming their first child,” Severino said. “She’s worked at the highest levels, from the White House to the executive team at Walmart, and her talent is matched only by her kindness and love for her family.”

    When asked by Sen. Chris Coons of Delaware whether he believed IVF was protected by the Constitution, Tung declined to answer.

    It wasn’t the only question the nominee ducked. Democratic members of the Senate Judiciary Committee accused Tung of giving only “sham answers” to their inquiries, both in chambers and through written follow-ups.

    After pressing him repeatedly for his position on landmark cases including Obergefell vs. Hodges and Lawrence vs. Texas — privacy right precedents Justice Clarence Thomas wrote should be reconsidered after the fall of Roe vs. Wade — Sen. Adam Schiff pushed the nominee for his opinion on Loving vs. Virginia, the 1967 case affirming interracial marriage.

    “Was that wrongly decided?” the California lawmaker asked the aspiring judge.

    “Senator, my wife and I are an interracial couple, so if that case were wrongly decided I would be in big trouble,” Tung said.

    “You’re willing to tell us you believe Loving was correctly decided, but you’re not willing to say the other decisions were correctly decided,” Schiff said. “That seems less originalist and more situational.”

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    Sonja Sharp

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  • 9th Circuit upholds California gun bans in some ‘sensitive’ places, but not others

    9th Circuit upholds California gun bans in some ‘sensitive’ places, but not others

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    California may enforce its recent ban on guns in “sensitive places” when it comes to parks and playgrounds, bars and restaurants that serve alcohol, casinos, stadiums, amusement parks, zoos, libraries, museums, athletic facilities and the parking areas associated with them, a federal appellate court ruled Friday.

    However, the state may not enforce similar restrictions in hospitals or other medical facilities, on public transit, at places of worship or financial institutions, or in the parking areas associated with or shared by those places, the three-judge panel of the U.S. 9th Circuit Court of Appeals determined.

    It also may not enforce its ban on guns at all events requiring a permit, or on visitors carrying guns onto any private property where the owner has not posted signs explicitly allowing them, the panel ruled.

    The appellate panel — which simultaneously issued similar findings relating to laws in Hawaii — issued its ruling in response to broad injunctions by lower courts that had blocked the bans from taking effect amid ongoing litigation over the laws.

    The panel noted that some locations where it rejected statewide bans, such as banks and churches, could still bar visitors from carrying guns based on existing property laws, but the state governments could not unilaterally and universally do so for them. It said owners of private property are similarly free to ban firearms on their property.

    “For the places where we hold that the states likely may not prohibit the carry of firearms, the practical effect of our ruling is merely that private-property owners may choose to allow the carry of firearms,” Circuit Judge Susan P. Graber wrote for the panel. “Owners of hospitals, banks and churches, for example, remain free to ban firearms at those locations.”

    Gov. Gavin Newsom claimed partial victory — and said the state would continue fighting to drive down gun violence.

    “We refuse to accept shootings at schools, parks and concerts as a normal fact of life. While we fought for the court to go further, today’s ruling affirms our state’s authority to limit guns in many public places,” Newsom said in a statement. “California will continue to take action to protect our residents, and defend our nation-leading, life-saving gun laws from an extreme gun lobby and politicians in their pockets.”

    Gun advocates characterized the ruling as a partial win, as well.

    “This partially favorable decision from the Ninth Circuit shows how far we’ve come over the past decade. But this case, and our work to restore the right to bear arms, is far from over,” said Brandon Combs, president of the Firearms Policy Coalition, which helped bring the challenge against the laws. “FPC will continue to fight forward until all peaceable people can fully exercise their right to carry in California and throughout the United States.”

    Graber, an appointee of President Clinton, was joined in the decision by Circuit Judge Mary M. Schroeder, an appointee of President Carter; and Circuit Judge Jennifer Sung, an appointee of President Biden.

    The ruling was the latest to apply the historical test for gun laws set out in 2022 by the U.S. Supreme Court in the case New York State Rifle & Pistol Assn. vs. Bruen. There, the high court said that gun laws are legitimate only if they are rooted in the nation’s history and tradition or sufficiently analogous to some historical law.

    Graber’s opinion parsed through an array of historical laws to determine whether lower court injunctions blocking many of the states’ bans on guns in sensitive places should stand, or if they should be reversed based on historical precedent.

    In doing so, the ruling divided public places into those where guns may be banned, such as parks; and those where they may not be based on a lack of similar restrictions in the past, such as places of worship.

    That partition highlighted a reality under Bruen’s “history and tradition” test that gun control advocates have denounced as preposterous: that it precludes leaders from crafting modern gun laws to address modern realities of gun violence, such as mass shootings at places of worship.

    Billy Clark, senior litigation attorney at the gun control advocacy group Giffords Law Center, said the decision “further illustrates that it is constitutional to keep guns out of sensitive places” — but also more evidence of the “chaos” in 2nd Amendment law caused by the Bruen decision.

    Janet Carter, senior director of issues and appeals at the gun control group Everytown Law, said her group didn’t agree with all aspects of the decision, but still found it “heartening.”

    “Keeping guns out of sensitive places is common sense and these laws are crucial to keeping our communities safe from gun violence,” Carter said.

    Adam Kraut, executive director of the gun rights advocacy group Second Amendment Foundation, said California’s expansion of “sensitive places” where guns are banned “goes beyond what the Supreme Court contemplated when it mentioned them in Bruen,” and said his group will continue to fight such bans in court.

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    Kevin Rector

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  • California legislators push law change after ruling against family in Nazi looted art case

    California legislators push law change after ruling against family in Nazi looted art case

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    California legislators plan to introduce a bill Thursday that would bolster efforts by Holocaust survivors, their heirs and other victims to recover artwork and other property stolen from them as a result of political persecution.

    Assemblyman Jesse Gabriel (D-Encino), co-chair of the California Legislative Jewish Caucus and lead sponsor of the bill, said the measure was inspired by a recent ruling by the U.S. 9th Circuit Court of Appeals that found that current California law required an Impressionist masterpiece looted from a Jewish woman by the Nazis in 1939 to remain with a Madrid museum rather than be returned to the woman’s family in the U.S.

    “It immediately made sense to me that this was a unique opportunity to correct a historical injustice and make sure that something like this doesn’t happen again,” Gabriel said. “Respectfully, we think that the 9th Circuit got it wrong, and this law is going to make that crystal clear.”

    Gabriel said the bill hopefully will ensure better legal outcomes for other Californian families who have suffered politically motivated thefts — whether past, present or in the future.

    “Our hope is that it’s going to help others, other Holocaust victims and other victims of genocide and political persecution,” Gabriel said. “It’s specifically crafted to be applied more broadly.”

    The legislative effort — which Gabriel said already has bipartisan support — is the latest twist in a more than two-decade legal battle over the Camille Pissarro masterpiece “Rue Saint-Honoré in the Afternoon. Effect of Rain.” It is also not the first time the California Legislature has bucked the powerful 9th Circuit on issues related to Nazi-looted art.

    David Cassirer, whose great-grandmother Lilly Cassirer Neubauer had the painting stolen from her at the dawn of World War II, is appealing the 9th Circuit ruling against his family and welcomed the legislative effort as a potential leg up in that fight.

    “It’s very important that our laws support and enable Holocaust victims and their heirs to be able to recover this artwork that was stolen so long ago,” he said. “I’m grateful.”

    Thaddeus Stauber, an attorney for the Thyssen-Bornemisza National Museum in Madrid, which obtained the painting as part of a massive collection of masterpieces in 1993 and rejects the family’s claim to it, did not respond to a request for comment.

    Neubauer relinquished the painting to a local Munich art dealer acting as a Nazi art appraiser in 1939, in exchange for a visa to flee Germany. It was a decision made under clear duress, as part of a vast Nazi program to steal Jewish wealth, and both parties to the ongoing case have agreed the incident constituted a theft.

    Despite that, however, the Thyssen-Bornemisza, which is owned by the Spanish government, argues it has since obtained proper title to the painting under Spanish law. It says it purchased the painting in good faith, without knowing it was stolen, in 1993, from billionaire Baron Hans Heinrich von Thyssen-Bornemisza.

    The baron, one of the world’s most prolific art collectors before his death in 2002, was the scion of a German industrialist family that made a fortune in steel — and helped finance Adolf Hitler’s rise to power along the way.

    Neubauer’s family believed the painting was missing — perhaps lost for good in the war — until Neubauer’s grandson Claude Cassirer, who escaped the Holocaust before moving to Cleveland and then retiring in San Diego, discovered around 2000 that it was in the Thyssen-Bornemisza museum.

    He asked for the museum to voluntarily return the painting, then sued in 2005 when it refused to do so. David Cassirer, his son, took over as lead plaintiff in the family’s case after his father’s death in 2010.

    The case has bounced around U.S. courts ever since, and has repeatedly caught the attention of the 9th Circuit. Around the same time as Cassirer’s death, the appellate court tossed a California rule expanding the window under which looting victims or their heirs could file claims for Nazi-looted artwork, saying it infringed federal authority in such matters.

    The state Legislature responded by passing a measure making the window for all sorts of stolen property — not just in international cases with a federal nexus — six years from the time a victim gains “actual knowledge” of the lost property’s whereabouts, which was a window large enough to justify the Cassirer family’s claim. Congress later established a similar window for looted art claims under federal law.

    Still, the battle over the Pissarro — which is estimated to be worth tens of millions of dollars — raged on.

    In 2022, the U.S. Supreme Court handed the Cassirer family another win when it ruled that California law — not Spanish law — should be used to determine the legitimacy of the family’s claim to the painting. However, in January, the 9th Circuit once again ruled against the family.

    A three-judge panel found that California law required it to consider the interests of Spain and of California in enforcing their respective and contradictory laws around stolen property, and to apply the law of the government whose interests would be “more impaired” were its law ignored.

    Under that analysis, it had to apply Spain’s law, it found, and therefore the painting had to remain with the museum. One of the judge’s wrote that she agreed with the analysis as a matter of law, but it went against her “moral compass.”

    It also went against “California values,” Gabriel said, which is why he decided to introduce the new measure.

    “The purpose of the bill is to ensure an outcome based on morality and justice, and not legal technicalities,” he said.

    If the new bill passes, it would make clear that, in scenarios involving property looted or stolen by the Nazis or as a result of political persecution, California law dictates that the property be returned, Gabriel said.

    The law would apply in any legal case considering such issues in which the ultimate decision is not yet final, up to and including those on appeal before the Supreme Court.

    If passed and signed by Gov. Gavin Newsom, the bill probably would take effect Jan. 1, Gabriel said. It also could be expedited, but that hasn’t been considered yet.

    The timeline for the Cassirer case is unclear. It currently remains before the 9th Circuit, where Cassirer has asked for the January decision to be reconsidered by a larger, 11-judge en banc panel. After a decision is made there, the parties could potentially appeal to the Supreme Court, as well.

    Sam Dubbin, a longtime attorney for the Cassirer family, praised Gabriel’s effort to update California’s law.

    “The clarity of Assemblyman Gabriel’s legislation is necessary to change the current dynamic in which governments, museums, and collectors are incentivized to resist restitution and employ tactics and arguments that trivialize the Holocaust,” Dubbin said. “It is essential for truth, history, and justice in the Cassirer case, and for future cases as well.”

    Gabriel said he already has co-sponsors from both ends of the political spectrum — including assemblymembers Isaac Bryan (D-Los Angeles) and Vince Fong (R-Bakersfield) — and is optimistic that the bill will have widespread support.

    Also backing the measure are Assemblymember Rebecca Bauer-Kahan (D-Orinda), who is the granddaughter of Holocaust survivors, and Lt. Gov. Eleni Kounalakis, also a Democrat, who cited her time as U.S. ambassador to Hungary — where hundreds of thousands of Jews were killed — as strongly informing her support.

    “The decades-long effort to return confiscated property to Jewish families is morally courageous,” Kounalakis said in a statement to The Times.

    Gabriel said it was “appalling” to him that Spain’s government won’t voluntarily return the painting to Cassirer.

    “This isn’t about money,” he said. “It’s about morality and justice.”

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    Kevin Rector

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  • Limits on San Francisco's clearing of homeless encampments upheld by 9th Circuit

    Limits on San Francisco's clearing of homeless encampments upheld by 9th Circuit

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    A court order limiting San Francisco’s ability to clear street encampments of people who have nowhere else to go will remain in effect while litigation continues, a federal appellate court ruled Thursday.

    The ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals marked a substantial win for the Coalition on Homelessness, a progressive advocacy organization that secured a preliminary injunction by challenging San Francisco’s policies for clearing encampments as fundamentally unjust and illegal under past court decisions protecting the rights of homeless people to sleep in public in certain situations.

    Thursday’s ruling is the latest decision in a sprawling legal debate over homelessness in the American West and how local jurisdictions may legally address it. The debate has pitted progressive activists and advocacy groups against liberal leaders such as San Francisco Mayor London Breed and Gov. Gavin Newsom, who have been frustrated along with many of their constituents by the spread of encampments in downtown areas and other neighborhoods since the start of the COVID-19 pandemic.

    The debate has also sparked tensions between liberal and conservative judges of the 9th Circuit, including in a separate case out of Grants Pass, Ore. that is under consideration for review by the U.S. Supreme Court.

    In its decision Thursday, the 9th Circuit panel declined to consider several arguments in favor of stricter enforcement measures that San Francisco and a coalition of other California cities had raised in recent filings, saying they hadn’t been properly raised or substantiated with facts in the lower district court. The judges did acknowledge, however, that the injunction only applies to “involuntarily homeless” people, or those who have not been offered alternative housing or shelter by the city, and ordered the lower court to clarify that point.

    In recent months, San Francisco has tried to justify its continued operations to clear encampments, saying they are inhabited by people who have been offered shelter or housing.

    The appellate judges also ordered the lower court to specify that the injunction prohibits the city from “threatening to enforce” its enjoined laws, but does not bar the mere presence of police officers near encampments.

    John Do, a senior attorney for the ACLU of Northern California representing the coalition, said Thursday’s order should help ensure that San Francisco continues ramping up resources and offering shelter and housing to homeless people, rather than simply criminalizing poverty.

    “It’s a resounding win,” he said.

    Jen Kwart, a spokeswoman for San Francisco City Atty. David Chiu, said they appreciated that the appellate court “confirmed again and further clarified that the injunction only applies to people who are involuntarily homeless, not those who have refused an offer of shelter.”

    However, Kwart said their office was “disappointed” by the court’s decision not to consider arguments posed by the city in the appellate process, including around the scope of its restrictions — which she said left critical legal questions about solving homelessness unanswered.

    “Cities cannot reasonably be expected to solve homelessness while operating under this uncertainty,” Kwart said. “At some point, a court will need to clarify the law in this area, and it is disappointing that in the midst of an intense homelessness crisis, we all must continue to wait for that clarification.”

    Breed’s office declined to comment on the pending litigation, but released figures Thursday claiming a 22% increase in the number of people connected to shelter or housing last year, and that 64% of people who city personnel interacted with at encampments “declined offers of shelter or reported already having shelter or housing.”

    Gov. Gavin Newsom, in a statement, said the ruling would “only create further delays and confusion as we work to address homelessness.”

    Liberal judges have argued that the constitution — and specifically the 8th Amendment’s provisions against cruel and unusual punishment and excessive fines — protects homeless people’s right to sleep in certain public spaces, with certain protective gear, when they have no where else to go. Conservative judges have rejected that idea, arguing that there is a long legal tradition of local jurisdictions enforcing “anti-vagrancy” laws.

    Circuit Judge Lucy H. Koh, who wrote the court’s opinion Thursday, was joined by Circuit Judge Roopali H. Desai; both were appointed by President Biden. Circuit Judge Patrick J. Bumatay, who was appointed by President Trump, dissented.

    Koh wrote that the litigation “raises difficult and important legal questions with real stakes for San Francisco and the thousands of unhoused individuals who call San Francisco home.” But, Koh added, the appellate court could not delve into city arguments about geographic and time limits on encampment restrictions that were never made in the lower court.

    Moving forward, the lower court should consider whether the city’s rules “leave involuntarily homeless individuals with a realistically available place to go,” Koh wrote.

    Koh wrote that her panel was bound by past 9th Circuit precedent on the 8th Amendment in such matters, but noted the Supreme Court may soon be reviewing the existing precedent.

    Bumatay, in his dissent, wrote that the 9th Circuit has repeatedly misinterpreted the protections of the 8th Amendment as it relates to homeless encampments, endangering public safety in the process.

    It “cannot be cruel and unusual to prohibit homeless persons from sleeping, camping, and lodging wherever they want, whenever they want,” Bumatay wrote. “While they are entitled to the utmost respect and compassion, homeless persons are not immune from our laws.”

    Newsom has called on the conservative-leaning Supreme Court to take up the Grants Pass case and rule in favor of local municipalities trying to rein in public encampments. He said Thursday’s ruling reinforced the need for such intervention.

    Do, the coalition’s attorney, called Newsom’s position “deeply, deeply troubling.”

    “It is incredibly unfortunate and shameful for our policy leaders to scapegoat unhoused people for their own policy failures,” Do said. “Homelessness didn’t come out of the ether. It’s a direct result of the lack of investment in affordable housing.”

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    Kevin Rector

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