Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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3500 Sepulveda, LLC v. RREEF America REIT II Corp. BBB

Dockets: 18-56620, 18-56637, 19-55227, 19-55273

Opinion Date: November 20, 2020

Judge: Mark J. Bennett

Areas of Law: Business Law, Construction Law, Real Estate & Property Law

This case arises from the parties' dispute concerning a construction project to expand the Manhattan Village Shopping Center in Manhattan Beach, California. The parties' predecessors executed the Construction, Operation and Reciprocal Easement Agreement (the COREA) in 1980. The parties resolved disputes in a Settlement Agreement in 2008 where, under the terms of the settlement agreement, RREEF agreed not to oppose Hacienda's plan to convert office space into restaurants and Hacienda agreed not to oppose RREEF's expansion project subject to certain limitations in the Agreement. At issue is RREEF's project. The Ninth Circuit affirmed the district court's grant of summary judgment on the nuisance claim and reversed the district court as to the remaining claims. In regard to the claim for breach of contract, the panel concluded that RREEF has discretion to pursue the project and alter the site plan, and Hacienda's objections to the city are limited to RREEF's material changes. That RREEF has discretion to revise the site plan does not mean that Hacienda gave up its rights under the COREA, especially considering that the Settlement Agreement, by its own terms, does not amend the COREA. In regard to the claim for interference with easement rights, the panel concluded that the Settlement Agreement does not extinguish plaintiffs' easement rights under the COREA, and the district court erred in holding otherwise. In regard to the claim for breach of the covenant of good faith and fair dealing, the panel concluded that plaintiffs have presented sufficient evidence to raise a triable issue as to whether RREEF's construction of the North Deck was contrary to "the contract's purposes and the parties' legitimate expectations." In regard to the claim for interference with business and contractual relations, the panel concluded that plaintiffs have raised triable issues concerning whether defendants' construction interfered with Hacienda's tenant contracts, and whether defendants acted with the knowledge that "interference is certain or substantially certain to occur as a result of [their] action." The panel also reversed the district court's grant of summary judgment as to plaintiffs' request for declaratory relief. In regard to RREEF's counterclaims, the panel concluded that policy considerations weighed against applying the litigation privilege. Finally, the panel concluded that the attorneys' fee question was moot and vacated the district court's order denying the parties' motions for attorneys' fees.

Rico v. Ducart

Docket: 19-15541

Opinion Date: November 20, 2020

Judge: Richard C. Tallman

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit reversed and remanded the district court's denial of qualified immunity to Pelican Bay State Prison officials in a civil rights action brought by plaintiff, an inmate at Pelican Bay, alleging claims over prison noise stemming from the orders of a federal district court adopting recommendations of its Special Master to implement round-the-clock welfare checks to prevent inmate suicides in California's prison system. The panel held that, on the specific facts presented here, no reasonable officer would have understood that these court-ordered actions were violating the constitutional rights of the inmates. The panel explained that, even if the Pelican Bay officials haphazardly implemented the Guard One system, no reasonable official in these circumstances would believe that creating additional noise while carrying out mandatory suicide checks for prisoner safety clearly violated plaintiff's constitutional rights. In this case, where defendants were following court-ordered procedures to enhance inmate safety that are inherently loud, all Pelican Bay officials are entitled to qualified immunity.

Boule v. Egbert

Docket: 18-35789

Opinion Date: November 20, 2020

Judge: William A. Fletcher

Areas of Law: Civil Rights, Constitutional Law

Bivens remedies are available in the circumstances of this case, where a United States citizen alleges that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States, and violated the First Amendment by engaging in retaliation entirely unconnected to his official duties. In this case, plaintiff owns, operates, and lives in a bed and breakfast near the United States-Canada border in Blaine, Washington. Plaintiff alleged that a border patrol agent entered plaintiff's property to question guests and used excessive force on plaintiff, ultimately retaliating against plaintiff by, among other things, contacting the IRS to seek an investigation into plaintiff's tax status. In regard to the Fourth Amendment claim, the Ninth Circuit concluded that no special factors counsel hesitation in extending a Bivens remedy to this new context. The panel stated that plaintiff, a United States citizen, brings a conventional Fourth Amendment claim based on actions by a rank-and-file border patrol agent on his property in the United States. The panel also concluded that plaintiff's First Amendment claim arises in a new context, but no special factors that counsel hesitation in extending a Bivens remedy to this new context. The panel explained that retaliation is a well-established First Amendment claim, available against governmental officers in general. Finally, the panel concluded that there are no alternative remedies available to plaintiff.

United States v. Ngumezi

Docket: 19-10243

Opinion Date: November 20, 2020

Judge: Eric D. Miller

Areas of Law: Criminal Law

The Ninth Circuit reversed the district court's denial of defendant's motion to suppress a firearm found in a search of his car, vacated his conviction for being a felon in possession of a firearm, and remanded for further proceedings. The panel held that police officers who have reasonable suspicion sufficient to justify a traffic stop—but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger—may not open the door to a vehicle and lean inside. In this case, the officer conducted an unlawful search in violation of the Fourth Amendment when he opened the car door and leaned into it to ask defendant for his driver's license and vehicle registration. The panel concluded that nothing about this case calls for a remedy other than the typical remedy for Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against defendant. Therefore, the firearm must be suppressed under the exclusionary rule.