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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 …

Nordstrom V. Ryan: Inmate’S Legal Correspondence Between His Or Her Attorney Is Still Constitutionally Protected, Christina Ontiveros

Golden Gate University Law Review

Prison administrations have been given much deference as to the limitations of prisoners’ rights. Still, even though the courts have shown regard to the prison administration, they have also recognized that there are two important interests at play: those of the prison administration and that of the prisoners’ constitutional rights. Because there are two important interests at play when an issue arises as to a prison’s regulation and its effect on a prisoner’s constitutional right, the courts turn to the Turner standard to determine the regulation’s constitutionality. Recently, the Ninth Circuit used this standard in Nordstrom v. Ryan to determine …

C.R. Ex Rel. Rainville V. Eugene School District 4j: Slowly Expanding A School’S Ability To Reach Off-Campus Speech, Mary R. Loung

Golden Gate University Law Review

The United States Constitution guarantees equal protection under the law to all citizens regardless of race, color, religion, and gender. However, there are special circumstances when constitutional rights can be restricted. The First Amendment rights of public school students fall under one of these special circumstances. While parents have a responsibility to care for, protect, and discipline their child, the responsibility transfers to the school’s in loco parentis authority when the child becomes a student under their supervision. The salient issue then becomes how to determine when the school’s authority begins and ends. The Ninth Circuit’s decision in C.R. ex …

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.

Peruta V. County Of San Diego: An Individual Right To Self-Defense Outside The Home And The Application Of Strict Scrutiny To Second Amendment Challenges, Kevin Ballard

Golden Gate University Law Review

This Note will begin by examining the majority’s analysis in Heller. The Heller case, through historical interpretation, analyzed the language of the Second Amendment and settled a long-held dispute about the meaning of its actual language. This same historical analysis was also significant in the Supreme Court’s examination of McDonald, which affirmatively applied the Second Amendment to the States. Peruta used the same methodology as Heller and McDonald.

Next, this Note will argue that, based on the historical analysis in Heller, McDonald, and Peruta, courts addressing the Second Amendment should apply strict scrutiny review …

The Forgotten Children Of The Foster Care System: Making A Case For The Professional Judgment Standard, Andrea Koehler

Golden Gate University Law Review

Part I of this Comment presents a brief look at the children in foster care and the maltreatment they experience, as well as the federal and state legislation enacted to provide for their safety. Part II explores § 1983 and Supreme Court precedent establishing the duty to protect persons from harm caused by private parties, with a focus on the special relationship doctrine. It also discusses the applicable standards of liability defined by the Court. Part III reviews and analyzes the various liability standards used in federal and state actions brought by foster children for failure to protect them from …

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, …

Decoding Student Speech Rights: Clarification And Applica-Tion Of Supreme Court Principles To Online Student Speech Cases, Courtney M. Willard

Golden Gate University Law Review

This Comment identifies the underlying principles of Supreme Court precedent governing student speech rights and applies those principles, as appropriate, to analyze online student speech. Part I provides a background of the four Supreme Court cases governing student speech. Four factors are identified from the Supreme Court decisions that continue to guide the analysis of student speech rights: sponsorship, location, effect, and content. Part II explores lower courts’ confusion in applying the four factors to online student speech cases. Finally, Part III examines the factors applicable to online student speech and provides guidance for future courts to analyze online student …

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 …

State Bankruptcy: Surviving A Tenth Amendment Challenge, David E. Solan

Golden Gate University Law Review

During February 2011 the prospect of creating a state-bankruptcy chapter burst into the national conversation. This debate largely centered on the necessity of state bankruptcy as a means of averting state bailouts, and leading commentators emphasized the need to tread gingerly on state prerogatives under the Tenth Amendment. The constitutionality of bankruptcy for states demands closer scrutiny, given that the Supreme Court’s recent Tenth Amendment jurisprudence has evolved toward protecting state sovereignty.

The principles handed down from a pair of cases in the 1930s involving the constitutionality of municipal bankruptcy would likely support upholding a state-bankruptcy chapter that is carefully …

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 …

Newdow V. Rio Linda Union School Disctrict: Religious Coercion In Public Schools Unconstitutional Despite Voluntary Nature Of Partially Patriotic Activity, Daniel D. Blom

Golden Gate University Law Review

This Note examines Newdow v. Rio Linda Union School District and explains why California Education Code Section 52720 and the School District’s policy of reciting the Pledge violate the Establishment Clause. Part I discusses the background facts and procedural history of the case and the three tests that were developed by the United States Supreme Court to analyze Establishment Clause challenges. Part II examines the Ninth Circuit’s application of the three Establishment Clause tests to the facts of this case. Finally, Part III explains why the Coercion Test is the determinative test in the context of government action in public …

United States V. Pineda-Moreno, Tracking Down Individuals' Reasonable Expectation Of Privacy In The Information Age, Caitlin Emmett

Golden Gate University Law Review

In Pineda-Moreno, the Ninth Circuit held that prolonged police monitoring of a defendant’s precise location through the use of GPS transmitters did not constitute a search. In so holding, the Ninth Circuit relied on the Supreme Court decision in United States v. Knotts. Knotts held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Prior to the Ninth Circuit’s decision in Pineda-Moreno, most federal appellate courts interpreted Knotts to hold that location tracking outside the home is analogous to physical surveillance and …

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was a year in which the reviewing courts in California were confronted with contemporary problems of constitutional law.

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was an eventful year in the field of constitutional law. The court upheld the right of individuals to distribute antiwar literature within a railway station, struck down an injunction prohibiting county employees from peaceful picketing, upheld an ordinance punishing conduct which urges a riot or which urges others to commit acts of force or violence, and held the California loyalty oath unconstitutional.

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

Restrictions on the political activities of public employees and the application of the statutory ban on obscenity were some of the First Amendment problems presented to the California appellate courts this past year. Due process also received some attention. The courts were faced with such diverse questions as the regulation of insurance companies doing business in California exclusively by mail, the right to a hearing when the government takes action against an individual, and the taxation of foreign-based aircraft that fly into, out of, and within California. Reapportionment of an irrigation district, license taxes, and payment for care of a …

The Extension Of Privacy Rights To Workplace Text Messages Under Quon V. Arch Wireless, Heather Wolnick

Golden Gate University Law Review

In Quon v. Arch Wireless Operating Co., a panel of the United States Court of Appeals for the Ninth Circuit held that a public employer violated the Fourth Amendment by searching the contents of text messages sent and received on a public employee's work-issued pager. In so holding, the Ninth Circuit found that the public employee had a reasonable expectation of privacy in the contents of the text messages, despite a formal Internet and computer policy stating otherwise. Relying on the two-part O'Connor test for public-employer searches, the court found that the search was more intrusive than necessary to determine …

Shopping In The Marketplace Of Ideas: Why Fashion Valley Mall Means Target And Trader Joe's Are The New Town Squares, Jon Golinger

Golden Gate University Law Review

This Note explains that in Fashion Valley Mall, for the first time since the California high court decided Pruneyard nearly thirty years earlier, the court directly affirmed the notion that the California Constitution's liberty clause protects the right to free-speech activities on private property, such as a large shopping mall, that has taken on the characteristics of a traditional downtown business district. This Note further asserts that the majority's opinion in Fashion Valley Mall requires a different approach from that taken by the state appellate courts in deciding whether "stand-alone stores" such as Target and Trader Joe's also qualify as …

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 …

An Integrative Alternative For America's Privacy Torts, Robert M. Connallon

Golden Gate University Law Review

Rugg and Smith encapsulate a transition between two approaches to tort protection of privacy. Rugg reflects the unitary-tort theory, which recognizes a single tort and seeks only to determine if the plaintiff's interest in privacy has been breached by the defendant's behavior. Smith reflects the multiple-tort approach that recognizes four torts, encompassing four ways in which privacy is breached, that have in common only an interference with a loosely defined understanding of privacy. This understanding of the privacy tort was lifted from the Restatement (Second) of Torts (1977), which adopted a construct first proffered by Dean William Prosser in a …

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, …

To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor

Golden Gate University Law Review

In the nine to two decision by the en banc Ninth Circuit panel in United States v. Gourde, the court ruled that probable cause existed to search the defendant's home computer based in part on his two-month subscription to a website that offered child pornography. The majority opinion sought to conform to Supreme Court precedent in its probable cause analysis, while the dissenting opinions expressed great concern about the door being opened to this type of governmental invasion of privacy. Gourde has sparked reactions by commentators regarding the implications of the decision, and has influenced the analysis of subsequent child …

Uncovering Fraud Against The Government By Way Of Freedom Of Information Act Requests: United States V. Catholic Healthcare West, Katherine Watts

Golden Gate University Law Review

In United States v. Catholic Healthcare West, the Ninth Circuit held that when information leading to a False Claims Act ("FCA") suit is obtained from a Freedom of Information Act ("FOIA") request, that suit is not necessarily barred for lack of subject matter jurisdiction. The FCA contains a jurisdictional bar prohibiting suits based on publicly disclosed information from certain enumerated sources. The Ninth Circuit disagreed with the Third Circuit and found that information obtained from an FOIA request does not necessarily bar a FCA claim. The court found that the inquiry should not be whether the FOIA response qualifies as …

Nonconsensual Waiver Of A Jury Trial: Closing The Door, But Not Completely: United States V. United States District Court, Dije Ndreu

Golden Gate University Law Review

In United States v. United States District Court, the Ninth Circuit held that the circumstances of a child sexual abuse case did not warrant an exception to Rule 23 of the Federal Rules of Criminal Procedure, which requires the government's consent for a defendant to waive a jury trial. The court determined that the district court's ruling, which allowed the defendant to waive a jury trial without the government's consent, was clearly erroneous as a matter of law, and granted the government's petition for a writ of mandamus to require the district court to hold a jury trial.

An Employer's Use Of Federal Safety Standards To Exclude Individuals With Disabilities: Bates V. United Parcel Service, Inc., Ian Hansen

Golden Gate University Law Review

In Bates v. United Parcel Service, Inc., the United States Court of Appeals for the Ninth Circuit held that a plaintiff challenging a categorical safety-based "qualification standard" under the Americans with Disabilities Act does not have the burden of establishing that she could perform the essential function of generally performing the job "safely." The plaintiff is instead merely required to show that she is "qualified" in the sense that she has satisfied all prerequisites for the position, including any safety-related prerequisites not connected with the challenged criterion. The burden will then shift to the defendant to establish that the challenged …

Symbolic Speech And Equal Protection At The Las Vegas Fremont Street Experience: Aclu Of Nevada V. City Of Las Vegas, Christopher Donewald

Golden Gate University Law Review

In ACLU of Nevada v. City of Las Vegas, the Ninth Circuit held that a local "solicitation" ordinance enacted by the City of Las Vegas violated the plaintiffs' rights to expressive speech under the First Amendment. Additionally, the Ninth Circuit held that a "tabling" ordinance, which provided a labor-related exception, violated the plaintiffs' right to equal protection guaranteed by the Fourteenth Amendment. The court also decided an issue of flrst impression: whether the practice of erecting tables in a public forum for the purpose of disseminating information constitutes expressive activity and is therefore deserving of First Amendment protection. The Ninth …