Digital Commons Network^™

That Was Then, This Is Now: The Revival Of The Proposed Equal Rights Amendment And The Co-Optation Of The #Metoo Movement, Kyndal Currie

Golden Gate University Law Review

This Comment argues that the anticipated effect of an Equal Rights Amendment on the experiences of Black women and girls who have survived sexual violence is incongruent with the original tenets of the #MeToo movement. To provide context, Part I of this Comment recounts historical efforts to enact the proposed Equal Rights Amendment. Part I also details the concept of “intersectionality,” as well as modern campaigns that embrace its meaning to advance the social position of Black women.

In evaluating the efficacy of an Equal Rights Amendment, Part II of this Comment defines the contours of Black women’s experiences in …

Jones V. Davis And The Critical Issue Of Time In California’S Capital Punishment System, Heather Varanini

Golden Gate University Law Review

This Note argues that the Ninth Circuit should have affirmed the district court’s holding, thus invalidating California’s capital punishment system for three main reasons. First, citizens are losing confidence in the death penalty, which undermines its deterrent effect. Second, capital punishment is a critical issue for the State, and Californians and death row inmates alike must look to the judiciary for relief. Third, the Ninth Circuit avoided the constitutional issue of California’s capital punishment system by relying on Teague v. Lane. In doing so, the court deepened the problems the Defendant and the district court sought to alleviate.

Narrowly Restricting "Clearly Established" Civil Liberties: The Constitutional Ramifications Of A Family Member's [Under] Protected Federal Privacy Rights In The Dissemination Of Postmortem Images In Marsh V. County Of San Diego, Mahira Siddiqui

Golden Gate University Law Review

In Marsh, the Ninth Circuit held that a prosecutor who photocopied and kept a child's autopsy photograph (and after retirement gave the copy to the press) was entitled to qualified immunity. The court reasoned that there was no "clearly established" law to inform the prosecutor that his earlier conduct in making and keeping the photocopy was unlawful. In so holding, the Ninth Circuit relied on American Manufacturers Mutual Insurance Co. v. Sullivan, which held that a plaintiff must prove that he or she was "deprived of a right secured by the Constitution or laws of the United States."' Moreover, …

Castle In The Cloud: Modernizing Constitutional Protections For Cloud-Stored Data On Mobile Devices, Mark Wilson

Golden Gate University Law Review

This Comment argues that the current state of Fourth Amendment law vis-à-vis searching cloud-stored documents on a mobile device is untenable. Part I of this Comment defines cloud storage and cloud computing, and it provides background information on the Stored Communications Act (SCA). Part II discusses the intricacies of applying the SCA to computers and email, which is to date the best analog for applying the SCA to cloud computing. Part III details the legislative and judicial solutions to the problems raised by new technology and concludes that, while new legislation is the most desirable response, in the meantime courts …

Long Live The King: United States V. Bagdasarian And The Subjective-Intent Standard For Presidential "True-Threat" Jurisprudence, Kyle A. Mabe

Golden Gate University Law Review

This Note argues that the Ninth Circuit found the proper balance between protecting speech and the President by interpreting the true-threats doctrine and the construction of presidential-threat statutes to require a subjective intent to threaten, in addition to one of the traditional objective standards for true threats. The application of a solely objective standard to threats against the President leads to unsettling results that punish speech without need. Harmless but misguided individuals have been held criminally responsible for ludicrous statements based on the sensitivities of the fabled “reasonable person,” regardless of the speakers’ actual motivations for their statements. More importantly, …

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards exist …

3d Printers, Obsolete Firearm Supply Controls, And The Right To Build Self-Defense Weapons Under Heller, Peter Jensen-Haxel

Golden Gate University Law Review

This Comment describes how 3D printers will render current firearm regulations obsolete by allowing individuals to easily produce firearms—production that, when exercised by law-abiding citizens, may be protected under the Supreme Court’s decision in District of Columbia v. Heller. The regulatory system will be undermined in two phases. First, printers will be able to produce the only regulated piece of a firearm, the frame. Second, the printing of complete guns may be realized as 3D print technology advances or firearm design evolves. These developments, which could cause substantial changes in how both criminals and legitimate consumers obtain firearms, could …

Coyote Publishing, Inc. V. Miller: Blurring The Standards Of Commercial And Noncommercial Speech, Nicole E. Wolfe

Golden Gate University Law Review

In Coyote Publishing, Inc. v. Miller, the Ninth Circuit considered the constitutionality of a Nevada statute that regulates commercial advertising of legal brothels. The Ninth Circuit held that severe restrictions on brothel advertising, even in counties where brothels are legal, are valid under the First Amendment. The court concluded that Nevada Revised Statutes sections 201.430(1) and 201.440, which largely prohibit the advertising of licensed brothels, met the four prongs of the Central Hudson test. Although the Ninth Circuit held that Nevada Revised Statutes section 201.430(1) was constitutional, the facts of the case did not apply to Nevada Revised Statutes section …

"Reasonable Suspicion Plus": A Framework To Address Chief Judge Alex Kozinski's Concerns Of Mass Surveillance Without Compromising Police Effectiveness, Tyler R. Smith

Golden Gate University Law Review

Global Positioning Systems (GPS) provide law enforcement with a powerful tool to covertly investigate criminal networks. These networks, however, are often themselves technologically sophisticatedand thus able to elude police surveillance. GPS monitoring has drawn substantial criticism recently as police, in many jurisdictions, may utilize the technology without a search warrant; the issue has boiled down to whether the Fourth Amendment requires a search warrant in the first place.

This Comment argues that the Supreme Court should establish a new rule, “Reasonable Suspicion Plus,” that would require police to state in a sworn declaration particularized reasoning for use of a GPS …

Turning Title Vii's Protection Against Retaliation Into A Never-Fulfilled Promise, Jessica L. Beeler

Golden Gate University Law Review

Part I also explains the varied standards that were previously used when deciding what constitutes an adverse employer action and how the Supreme Court's recent decision in Burlington Northern resolved a split among the circuits. In Burlington Northern, the Supreme Court adopted a deterrence test to define adverse employer actions, which means the employer action must be harmful to the point that it would deter a reasonable employee of complaining of discrimination. Part II analyzes the actual effects of this decision, focusing in particular on DeHart. It shows how DeHart misapplied the deterrence standard by focusing on whether the employer …

Out Of Step: When The California Street Terrorism Enforcement And Prevention Act Stumbles Into Penal Code Limits, J. Franklin Sigal

Golden Gate University Law Review

This Comment focuses on how the multiple-punishment prohibition of section 654 applies to the enhancements of one particular California statute: the Street Terrorism Enforcement and Prevention ("STEP") Act, a piece of anti-gang legislation passed in 1988 in the wake of rampant gang-related violence in the Los Angeles area. Specifically, this discussion centers on the imposition of multiple gang-enhancement provisions on a single defendant who engages in a single crime spree. If section 654 does apply to gang enhancements, then the prosecutorial practice of attaching them to every criminal charge in an indictment violates the intent of this Penal Code section, …

United States V. Thomas: Ninth Circuit Misunder-"Standing": Why Permission To Drive Should Not Be Necessary To Create An Expectation Of Privacy In A Rental Car, Matthew M. Shafae

Golden Gate University Law Review

This Note argues that the proper inquiry for determining whether a defendant has a legitimate expectation of privacy in a rental vehicle when that defendant is the unauthorized driver of a rental car is the totality-of-the-circumstances test, not the permission test adopted by the Ninth Circuit. A test requiring permission is unsupported by Supreme Court precedent and will yield inconsistent results when applied. Part I provides a brief historical background for challenges to Fourth Amendment searches. Part II sets forth the background and analysis of the opinion in focus, United States v. Thomas. Part III evaluates the court's analysis in …

An Unreasonable Online Search: How A Sheriffs Webcams Strengthened Fourth Amendment Privacy Rights Of Pretrial Detainees, Ian Wood

Golden Gate University Law Review

This Note will discuss how courts approach pretrial detainees' claims of punishment, exploring both Fourteenth Amendment Due Process claims and privacy rights under the Fourth Amendment. It will go on to discuss Demery's implications for Fourth Amendment privacy rights of pretrial detainees. Part I explores the protections pretrial detainees are afforded under the Fourteenth Amendment Due Process Clause." Part l.A discusses the general differences between pretrial detainees and convicted prisoners. Part I.B considers two Supreme Court cases - Bell v. Wolfish and Block v. Rutherford - that address the standards used in evaluating punishment claims in a pretrial detention context …

The Decline Of The Establishment Clause: Effect Of Recent Supreme Court Decisions On Church-State Relations, Louis H. H. Heilbron

Golden Gate University Law Review

This note relates how a grand constitutional concept set forth in the First Amendment has suffered serious erosion in the last twenty years through decisions of the United States Supreme Court. In particular, two recent decisions have had a profound effect on church - state relations by merging, rather than separating, church and state. Both cases were five-to-four decisions and in the educational field: Zelman v. Simmons-Harris concerning vouchers and Good News Club v. Milford Central School concerning after-class activities in a public elementary school. The combined opinions cover almost 200 pages of rationale, argument, and citations. This article attempts …

Eighth Amendment - Andrade V. Attorney General, Renee Ross

Golden Gate University Law Review

A large majority of states have enacted recidivist statutes requiring increased punishment for repeat offenders. California's controversial recidivist statute, the Three Strikes and You're Out Law (the Three Strikes Law), was approved by ballot initiative and enacted by the state legislature in 1994. Defendants have challenged the constitutionality of sentences under habitual offender statutes for at least twenty years. In Harmelin v. Helm, the United States Supreme Court addressed the constitutionality of a life sentence without the possibility of parole for a first time drug offender convicted of possession of 650 grams of cocaine. Justice Kennedy's concurrence in Harmelin set …

How Far Can A State Go To Protect A Fetus? The Rebecca Comeau Story And The Case For Requiring Massachusetts To Follow The U.S. Constitution, Hedy R. Bower

Golden Gate University Law Review

This comment will explore the question of whether a state can take a pregnant woman into custody and subject her to prenatal care despite her religious beliefs that prohibit her from seeking medical care. Part II of this comment explains the historical development of a woman's fundamental right to privacy in making decisions concerning her pregnancy. Part II also discusses the limited contexts in which a fetus has rights, a person's right to free exercise of religion, and a person's freedom to refuse medical care. Part III addresses the legal procedures by which a state may confine a person against …

Lajoie V. Thompson: Does The Ninth Circuit Grant Young Victims Less Protection Under Rape Shield Statutes?, Crystal Dykman

Golden Gate University Law Review

In LaJoie v. Thompson, the Ninth Circuit held that the trial court's preclusion of evidence regarding the victim's prior sexual abuse by others as a sanction for LaJoie's failure to comply with the 15-day notice requirement in Oregon's rape shield law violated LaJoie's Sixth Amendment rights. The Ninth Circuit further held that the preclusion of this evidence regarding the prior sexual abuse of the victim warranted habeas relief. In Part II, this Note discusses LaJoie's facts and procedural history. Part III outlines the history of the Habeas Corpus statutes and discusses the Oregon and Federal rape shield statutes, with an …

Exercising The Right To Self-Representation In United States V. Farhad: Issues In Waiving A Criminal Defendant's Sixth Amendment Right To Counsel, Kenneth R. Sogabe

Golden Gate University Law Review

Though all U.S. courts recognize the right to self-representation as a result of the Supreme Court's decision in Faretta, constitutional and procedural issues affect its effective implementation. This note explores the Sixth Amendment's right to waive counsel and its effect on a criminal defendant's Fifth Amendment right to receive a fair trial. The Ninth Circuit's decision in Farhad is critiqued on two issues: first, the failure to address standby counsel in sharing duties of representation with the defendant; and second, the court's failure to address Farhad's lack of access to the means of developing his case. Lastly, this note proposes …

United States V. Covarrubias: Does The Ninth Circuit Add To The Ambiguity Of The Inextricably Intertwined Exception?, Holly Larsen

Golden Gate University Law Review

This Note discusses Covarrubias' facts and procedural history. Part III outlines the history of the Sixth Amendment right to counsel, with an emphasis on the inextricably intertwined exception. Part IV analyzes the Ninth Circuit's reasoning in Covarrubias. Part V critiques this reasoning in light of the strong presumption against the finding of the application of the inextricably intertwined exception. Finally, Part VI concludes that the Ninth Circuit properly suppressed the defendant's incriminating statements obtained by I.N.S. Agent Gonzalez, but would have set forth a stronger position had the Ninth Circuit evaluated in addition, or, in the alternative, under the circumvention …

Constitutional Law - Colacurcio V. City Of Kent, Zachary J. Dalton

Golden Gate University Law Review

In Colacurcio v. City of Kent, the United States Court of Appeals for the Ninth Circuit held that the City of Kent's Ordinance 3221, which required nude dancers to perform at least ten feet from patrons, did not violate the First Amendment of the United States Constitution. The court found that, as a matter of law, the Kent ordinance was content-neutral and the ten-foot distance requirement was narrowly tailored and left open ample alternative avenues for communication of protected expression.

Code Of Silence: Police Shootings And The Right To Remain Silent, Robert M. Myers

Golden Gate University Law Review

Two events in September 1995 gave the public a brief glimpse of law enforcement officers asserting the Fifth Amendment privilege. In the "trial of the century," Los Angeles Police Department Detective Mark Fuhrman asserted the privilege during the O.J. Simpson murder trial in response to questions concerning whether he planted evidence or provided truthful testimony. A week later, an FBI agent asserted the privilege in response to a Senate committee's inquiry concerning the shootout at Ruby Ridge, Idaho. These highly publicized exercises of the privilege are rare. For the most part, invocations of the privilege by the police are a …

The Claims Of Women Of Color Under Title Vii: The Interaction Of Race And Gender, Mary Elizabeth Powell

Golden Gate University Law Review

This comment will focus on how a single characteristic construction of Title VII has distorted and marginalized the claims of women of color. Part One illustrates how the courts initially refused to recognize the claim of interactive discrimination. Part Two explains the limited way in which courts began to recognize the interactive claims brought by women of color. Instead of seeing the plaintiffs as alleging the single entity of interactive discrimination, courts have bisected the claim into "sex plus race." Part Three focuses on the issue of women of color as adequately representing a class in a class action suit. …

Divinity Vs. Discrimination: Curtailing The Divine Reach Of Church Authority, Whitney Ellenby

Golden Gate University Law Review

Church authority to practice gender discrimination in employment decisions represents the collision of principles of religious liberty on one hand, and the need to eradicate invidious discrimination on the other. In order to secure the free exercise of religion, the First Amendment prohibits legislation which interferes with or significantly abridges religious belief or conduct. To the extent that employment decisions represent the extension of religious belief, churches have a strong claim of immunity from judicial review of their decisions. Title VII of the Civil Rights Act of 1964 thus exempts religious entities from civil liability when their discriminatory conduct is …

The Constitutionality Of Mandatory, Presentence Urine Testing Of Convicted Defendants, Joshua W. Rose

Golden Gate University Law Review

In Portillo v. United States District Court for the District of Arizona, the Ninth Circuit held that mandatory presentence urine testing of a convicted defendant violates the Fourth Amendment to the United States Constitution. The court concluded that, because the particular facts of the case and the lack of information about the defendant's past drug usage did not support the district court's order, urine testing was constitutionally impermissible.

Madsen V. Women's Health Center, Inc.: The Constitutionality Of Abortion Clinic Buffer Zones, Jennifer Wohlstadter

Golden Gate University Law Review

This note will discuss the new standard introduced by the United States Supreme Court, the Court's rationale behind its introduction, and the standard's application to the facts of Madsen. Next, the author will explore how this standard will influence the decisions arid injunctions already implemented by state courts and how the standard may result in reduced protection for women's reproductive rights. Finally, the author will explain why the states' interest in protecting clinic access is strong enough to justify the continued use of buffer zones despite the stricter standard courts must apply.

Constitutional Law - Vernon V. City Of Los Angeles, Et Al.: Government Employer May Investigate Employee's Religious Beliefs To Determine Whether Beliefs Affect Job Performance, Wendy L. Wilbanks

Golden Gate University Law Review

In Vernon v. City of Los Angeles, et al., the Ninth Circuit held that the city of Los Angeles' investigation of its assistant police chiefs religious beliefs did not violate his state or federal civil rights.

Promises Of Confidentiality To News Sources After Cohen V. Cowles Media Company: A Survey Of Newspaper Editors, Daniel Levin, Ellen Rubert

Golden Gate University Law Review

We undertook a survey of newspaper editors to determine their views regarding promises of confidentiality, to determine the effect of the Cohen case on the newspaper industry, and to discover related information. This article will discuss the Cohen case and report the survey results. Section II of the article sets forth the facts that led to the lawsuit brought by source Dan Cohen against two Minneapolis newspapers for breach of promise of confidentiality. Section III sets forth the history of the lawsuit itself, as it proceeded through the Minnesota state courts to the United States Supreme Court, reaching a final …

Protecting Children From Music Lyrics: Sound Recordings And "Harmful To Minors" Statutes, Jim Mccormick

Golden Gate University Law Review

The tactic of including sound recordings in "harmful to minors" statutes is perhaps the most promising solution to the resilient problem of explicit music lyrics. Although the Washington law was found unconstitutional, many states have successfully included sound recordings in their own "harmful to minors" statutes. To appreciate this development, a legal and factual background must be discussed. Part II of this Comment summarizes the development of obscenity standards for minors in U.S. First Amendment law. Part III discusses some historic clashes between obscenity law and music. The Washington "Erotic Lyrics" Amendment and its constitutional problems are the subject of …

Church Of The Lukumi Babalu Aye, Inc. V. City Of Hialeah: A Reader's Companion To Contemporary Free Exercise Jurisprudence And The Right To Perform Ritual Animal Sacrifice, Rod M. Fliegel

Golden Gate University Law Review

Contemporary scholars have devoted ample attention to the Court's free exercise jurisprudence. The scope of this comment is thus appropriately limited to consideration of the fundamental free exercise questions presented by Hialeah. Although some review is obviously necessary, this comment is not intended as a comprehensive discussion of recent free exercise cases. Principally, issues which remain unresolved in the wake of the Court's Smith decision will be addressed, including the following. Observing that "neutrality" is the cornerstone of the Smith decision, what evidence may properly be considered when making the neutrality assessment? Will facial-neutrality be dispositive? Additionally, assuming that Smith …

R. V. Butler: Recognizing The Expressive Value And The Harm In Pornography, Justine Juson, Brenda Lillington

Golden Gate University Law Review

The recent Canadian Supreme Court decision of R. v. Butler recognizes and addresses the harmful anti-social attitudes and behaviors towards women which are perpetuated by misogynistic, violent pornography. Meanwhile, American courts continue to grapple with their traditional obscenity standard. This comment presents an overview of the American approach to regulating and categorizing pornography, and explores the obstacles this approach creates for addressing the issues of harm to women. The pivotal elements of the Butler court's analysis will be discussed in light of American decisions. The authors propose that a Butler analysis offers a more honest and balanced approach to the …