eBriefs June 25, 2019

TUESDAY, JUNE 25, 2019


U.S. Supreme Court

Criminal Law and Procedure

The residual clause defining a “crime of violence,” 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague; the imposition of criminal punishments cannot be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined “ordinary case.”

United States v. Davis; filed June 24, 2019


Cite as 2019 S.O.S. 18-431


Government Law

A trade association representing grocery retailers has standing to appeal a court order to disclose store-specific data for retailers that participate in the national food-stamp program since disclosure of this data would cause its members some financial injury in the highly competitive grocery industry. Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of exemption 4 of the Freedom of Information Act.

Food Marketing Institute v. Argus Leader Media; filed June 24, 2019


Cite as 2019 S.O.S. 18-481


Intellectual Property

The Lanham Act’s prohibition on registration of “immoral or scandalous” trademarks violates the First Amendment since it discriminates on the basis of viewpoint.

Iancu v. Brunetti; filed June 24, 2019


Cite as 2019 S.O.S. 18-302


Maritime Law

A plaintiff may not recover punitive damages on a claim of unseaworthiness.

Dutra Group v. Batterton; filed June 24, 2019


Cite as 2019 S.O.S. 18-266


Ninth U.S. Circuit Court of Appeals

Environmental Law

The U.S. Forest Service’s designation of 5.3 million acres as a landscape-scale area in the Tahoe National Forest did not violate the National Environmental Policy Act; since the designation of landscape-scale areas did not change the status quo, a NEPA analysis was not necessary.

Center for Biological Diversity v. Ilano; filed June 24, 2019


Cite as 2019 S.O.S. 17-16760


California Supreme Court

Criminal Law and Procedure

A jury may convict a defendant under the kill zone theory only when the jury finds that the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm around the primary target, and the alleged attempted murder victim who was not the primary target was located within that zone of harm; a jury may not find a defendant acted with the specific intent to kill everyone in the kill zone if the circumstances of the attack would also support a reasonable alternative inference more favorable to the defendant.

People v. Canizales; filed June 24, 2019


Cite as 2019 S.O.S. 2944


Criminal Law and Procedure

The issuance of CALJIC Nos. 8.71 and 8.72 was not prejudicial error where the jury also received Nos. 17.40, 2.61, and 8.74. The fact that a defendant called his victim “devil” does not provide sufficient evidence that he was hallucinating, nor did his indiscriminate shooting into the air. A judge’s failure to instruct the jury on the impact of a felony conviction on a witness’s credibility was undoubtedly harmless beyond a reasonable doubt where the jury was aware the witness was a felon and his testimony was not controversial.

People v. Mitchell; filed June 24, 2019


Cite as 2019 S.O.S. 2953


California Court of Appeal

Criminal Law and Procedure

Sufficient evidence supported a defendant’s conviction for violating Penal Code §288.3(a) where the defendant communicated with a law enforcement office posing as a minor; the statute does not actually require a minor victim.

People v. Korwin; Fourth District, Div. One; filed May 31, 2019, publication ordered June 24, 2019


Cite as 2019 S.O.S. 2964


Criminal Law and Procedure

A minor’s false report that an explosive device would be placed at his school was not protected speech under the First Amendment; Penal Code §148.1(c) is not unconstitutionally overbroad.

In re J.M.; Fifth District; filed June 24, 2019


Cite as 2019 S.O.S. 2968



Timlick v. National Enterprise Systems; First District, Div. Three; filed June 21, 2019


Cite as 2019 S.O.S. 2972