[guest post by JVW]

As we transition into the weekend I think it’s worth giving a shout-out to two GOP Assembly members in the Golden State, Kevin Kiley (Rocklin) and James Gallagher (Yuba City), who won a pretty significant court victory earlier today regarding Governor Gavin Newsom’s abuse of executive power during the COVID-19 panic:

A California judge on Friday sided with Republican legislators who said Gov. Gavin Newsom overstepped his powers with dozens of emergency orders during the coronavirus crisis that changed everything from how public meetings are conducted to when tenants can be evicted.

Sutter County Superior Court Judge Perry Parker only halted one of the orders, involving the November election, but ordered Newsom to refrain from new orders that might be interpreted as usurping the Legislature’s responsibilities.

The judge appeared to adopt without changes a proposed order submitted to him by GOP Assemblymen James Gallagher and Kevin Kiley, who challenged the election order.

Parker barred Newsom “from further exercising any legislative powers in violation of the California Constitution and applicable statute, specifically from unilaterally amending, altering, or changing existing statutory law or making new statutory law.” He scheduled a hearing for June 26 to consider issuing a preliminary injunction.

Yes, it’s probably true that Democrats will find a left-wing judge to overturn the decision on November voting as well as lifting the prohibition on new rule-making by the governor, and yes, the Democrat-majority legislature will simply accede to the governor’s wishes and enact his plan legislatively, but it’s at least a shot across Governor Newsom’s bow that the minority party is paying attention and will hold him to account when he goes too far with his power grab. Interestingly enough, Democrat legislators have also expressed concern about the governor’s questionable exercise of emergency authority, but they have been far too timid to push back beyond requesting post facto explanations of various moves he has made.

But what’s even more impressive about today’s development is that in the era when we expect politicians to engage well-heeled lawyers for this sort of thing (usually paid for by a lavishly-funded PAC), Assemblymen Gallagher and Kiley appeared in court themselves to make the argument in person. That hearkens back to a bygone era when our elected representatives were actually competent enough to serve as their own advocates and is a welcome departure from today’s norm. Can anyone imagine Lorena Gonzales trying to defend the heinous AB-5 in court herself?

Today @J_GallagherAD3 and I took Gavin Newsom to court for overstepping his powers and won a Temporary Restraining Order. The Judge ordered the Governor’s latest Exexutive Order suspended as a violation of the Constitution. To save costs, we represented ourselves. pic.twitter.com/9sTQN9fikR

— Kevin Kiley (@KevinKileyCA) June 12, 2020

Well done, gentlemen, and thank you.

– JVW

[guest post by JVW]

Somehow I missed this the other day, but I was helpfully just made aware of an urgent request in a newsletter from my Congressman (and our host’s!) Ted Lieu (D – Twitter):

As thousands continue to come together for a second week of protests against police brutality, Los Angeles County’s health director urged protesters to self-quarantine and get tested for the coronavirus Monday.

“We’re still in the midst of a pandemic,” health director Barbara Ferrer said. “COVID-19 remains easy to transmit… Every single social interaction that happens outside your household comes with risk to both the people who interact.”

L.A. County reported 823 new coronavirus cases and another 10 deaths attributed to the respiratory illness Monday, bringing the countywide total to 64,644 with 2,655 deaths.

Those who believe they’ve been exposed to the coronavirus because they weren’t able to keep at least 6 feet away from others who weren’t wearing masks should self-quarantine for 14 days — the whole coronavirus incubation period, Ferrer said.

And while quarantining, residents should be particularly careful to protect loved ones who may be at risk for more serious illness because of their age or underlying health conditions. That means not sharing bedding and wearing masks at home.

If no symptoms develop after the 14-day period, “you’re very unlikely to develop the virus,” she said.

Be on the lookout for those lines of woke youngsters clad in vintage clothes with fashionable eyeglasses and people wearing Vans waiting patiently on queue — six feet apart and with masks on! — to get their COVID-19 tests. But I guess after looking the other way throughout all of the mass gatherings last week, the county has to pretend like this is still a major concern on their radar. And, of course, any new outbreaks in urban America will be blamed on Republican governors and anyone who agitated to get back to work.

– JVW

[guest post by Dana]

[Pressed for time, so apologies for the slapdash job. Ed.]

In the aftermath of Breonna Taylor’s death, Louiseville has banned the use of no-knock warrants:

Louisville, Kentucky has banned the use of controversial “no-knock” warrants and named the new ordinance for Breonna Taylor, who was fatally shot by officers who burst into her home.

The city’s Metro Council unanimously voted Thursday night to ban the controversial warrants after days of protests and calls for reform. Taylor, who was studying to become a nurse, was shot eight times by officers conducting a narcotics investigation on March 13. No drugs were found at her home.

…

The law bans the use of the warrants by Louisville Metro officers. Police typically use them in drug cases over concern that evidence could be destroyed if they announce their arrival.

As part of the passage of ‘Breonna’s Law,’ police officers will face penalties if they do not turn on their body cameras:

The officers involved in the shooting were not wearing body cameras, although others in the department wore them. With the passing of Breonna’s Law, police officers are now subject to punishment if they do not turn on body cameras five minutes before and after searches.

Update on the officers involved in the death of Taylor:

The three officers involved in the shooting, Jon Mattingly, Brett Hankison and Myles Cosgrove, have been placed on administrative reassignment while the shooting is investigated. This week the detective who requested the no-knock warrant, Joshua Jaynes, also was reassigned.

Also, Sen. Rand Paul has introduced Justice for Breonna Taylor Act:

The Justice for Breonna Taylor Act bans federal law enforcement officers from carrying out a warrant “until after the officer provides notice of his or her authority and purpose” and blocks state and local law enforcement agencies that receive Justice Department funding from carrying out warrants that do not require the officer involved “to provide notice of his or her authority and purpose before forcibly entering a premises.”

–Dana

So far this is looking like 2-1 but not the way I thought. I didn't give Judge Henderson enough credit. Whereas it appears I gave Judge Rao precisely the credit she is due.

— Patterico (@Patterico) June 12, 2020

I didn’t get to hear all of the arguments this morning but I heard almost all of the Government’s presentation and all of the presentation by the lawyer representing Judge Sullivan. I would be shocked, after listening to what I heard, if Flynn and the Government were to prevail at this stage. As expected, Judge Wilkins was clearly hostile to the Government’s position. What surprised me a little is that Judge Henderson was as well. I said I was getting out of the prediction business, but as you can see from the headline, I’m dipping my toe back in. Flynn is going to lose. At this stage.

Note: this is entirely based on the posture of the case. It doesn’t mean that the record currently reflects a clear basis for Judge Sullivan to deny the motion, and it doesn’t mean that this panel might not reverse Judge Sullivan if he were to deny the motion. But there is no reason for the Court of Appeal to put a stop to proceedings at this point, and it appears that at least two judges understand this — and maybe even three.

One of the most remarkable aspects of the argument was the Government’s position — in direct contravention of several passages in the governing case law that I have told you about in past posts — that the district court essentially must grant a Rule 48 motion whenever it is unopposed. (Rinaldi v. United States (1977) 434 U.S. 22, says the “salient issue” is whether the dismissal is “tainted with impropriety” and approvingly cites a case, United States v. Cowan, which said, “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.” There is still a role for the court to see if the decision is being made for reasons contrary to the public interest. I have explained this all before.) The Government lawyer seemed to admit that if the prosecutor had been bribed, that could be a valid reason for the court to deny a motion to dismiss — but at the very same time he argued that the Government would suffer great harms if the court were allowed even to inquire into the reason for any dismissal that is unopposed.

So if the Government was bribed, how could that theoretically come to light if the court is not allowed even to inquire? I missed some of the Government’s argument due to Internet problems but asked people about it on Twitter, and I was told that this was never explained.

The Government lawyer, responding to hypotheticals from Judge Wilkins, also asserted that if the Government were to dismiss an excessive force case against a federal officer for racist reasons (reasoning that a white person should not have to answer for his abuse of a black victim), not only could the Government rely on that reasoning to dismiss a case after a sworn guilty plea, but the Government need not even disclose that reasoning to the court, and the court would have no authority to even question the decision.

But again, everything comes back to the absurd position that, when Rule 48 requires leave of court, the court is not allowed to make any inquiry if the motion is unopposed.

That is a bizarre position and it is going to be rejected. The majority will not be saying Judge Sullivan should grant the motion. Only that there is no reason to intervene at this time.

To me, at this point, the only issue is how Judge Rao will rule. Judge Rao — the Trump-appointed judge who has taken strikingly unusual pro-Trump positions in the Trump tax returns cases — was activated and she was activated very strongly when Wilkinson argued. As I listened to Judge Rao babble on, I formed the clear opinion that she really really wants to rule for Flynn. But I think the jury’s still out as to whether she can manage to actually type out a legal opinion that gives reasons for what she wants to do, in this posture.

I’m told by Twitter acquaintances I trust that Judge Rao also sounded skeptical of Powell’s position (Powell is the lawyer representing Flynn). So I think either Judge Rao dissents, or she concurs with a Trumpy screed about how troubled she is by Judge Sullivan’s actions and how Judge Sullivan really needs to watch his step and so forth. Whether she can bring herself to actually rule for Flynn and Government, given how clear the right decision is, I do not know.

I just want to say one more thing. A prediction is a prediction. People get predictions wrong, and I suppose Judges Henderson and Wilkins could have spent the argument sounding like firm votes against Flynn, and then could turn around and write an opinion vindicating everything he said and granting the petition. I sincerely doubt that will happen, but it could.

With that said, if you have been listening to people who confidently told you this case — even in this posture — was a slam dunk for Flynn and the Government, then you have been misled. (I need to come up with a combined term for Flynn and the Government, since this criminal and our federal law enforcement arm are on the same side in every argument here. Flynndicators?) The questioning of Judges Wilkins and Henderson in my view clearly signals that they believe there is no reason for the court to intervene at this point — but even if I’m wrong about that, nobody who listens to this argument can deny that they articulated very serious arguments why this ought to be a losing position for the Flynndicators.

If you have spent your time soaking in the wisdom of someone who thought the D.C. Circuit was certain to whisk this case away from Judge Sullivan, you have made a mistake.

I feel sorry for any non-lawyer who chose to believe anyone arguing that this was a slam-dunk for the Government and Flynn. They chose ignorance and partisanship over clear explanations of law, and they were badly misled as a result. Sad!

— Patterico (@Patterico) June 12, 2020

But hey. Maybe you enjoy being misled. I have found that many people do!