Filed: Jul. 15, 2021
Latest Update: Jul. 16, 2021
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINA ASTORGA; et al., No. 21-55059
Plaintiffs-Appellants, D.C. No.
2:20-cv-09805-AB-AGR
v.
COUNTY OF LOS ANGELES, a municipal MEMORANDUM*
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
In re: CHRISTINA ASTORGA; et al., No. 21-70845
______________________________
D.C. No.
CHRISTINA ASTORGA; et al., 2:20-cv-09805-AB-AGR
Petitioners,
ORDER
v.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, LOS ANGELES,
Respondent,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
COUNTY OF LOS ANGELES, a municipal
corporation; et al.,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted July 8, 2021
San Francisco, California
Before: GRABER and LEE, Circuit Judges, and VRATIL,** District Judge.
In Case No. 21-55059, Plaintiffs appeal the denial of a preliminary
injunction ordering Defendants to return their property following the Los Angeles
County Sheriff’s Department’s (“LASD”) seizure of various items during two
protests in September 2020. In Case No. 21-70845, Plaintiffs petition for a writ of
mandamus ordering the district court to disclose Defendants’ ex parte, in camera
submission cited as the basis for that denial. Reviewing for abuse of discretion,
Garcia v. Google, Inc., 786 F.3d 733, 739 (9th Cir. 2015) (en banc), we affirm the
denial of the preliminary injunction.1 We grant the petition for a writ.
1. The district court did not abuse its discretion in denying a preliminary
injunction because Plaintiffs failed to show irreparable harm from any delay in
**
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
1
We deny Defendants’ motion to dismiss because the return of some of
Plaintiffs’ property does not render this appeal moot.
2
reclaiming their property. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma
GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (holding that "[i]n general,
mandatory injunctions ‘are not granted unless extreme or very serious damage will
result and are not issued . . . where the injury complained of is capable of
compensation in damages’" (citation omitted) (emphasis added)). Plaintiffs fail to
meet that high burden because they do not claim that Defendants, in fact, deprived
them of digital papers or effects that they could not otherwise access. See Riley v.
California,
573 U.S. 373, 393–94 (2014) (holding that cellphones allow people to
"lug around every piece of mail they have received for the past several months,
every picture they have taken, or every book or article they have read"). Plaintiffs’
claim that California’s procedures for the return of seized property violate due
process is foreclosed. See Perkins v. City of W. Covina,
113 F.3d 1004, 1011 (9th
Cir. 1997) (holding that California’s procedures to litigate the return of seized
property satisfy due process), rev’d on other grounds,
525 U.S. 234 (1999); see
also Oziel v. Superior Ct.,
273 Cal. Rptr. 196, 201 (Ct. App. 1990) (holding that
"[t]he same rule applies to property seized without a warrant" as applies to
property seized with a warrant).
2. We grant Plaintiffs’ petition for a writ of mandamus in Case No. 21-
70845. The district court has two options. The court can reveal the information on
which it relied in denying the preliminary injunction. See Am.-Arab Anti-
3
Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (holding that it
is "the firmly held main rule that a court may not dispose of the merits of a case on
the basis of ex parte, in camera submissions" (quoting Abourezk v. Reagan,
785
F.2d 1043, 1061 (D.C. Cir. 1986))); Al Haramain Islamic Found., Inc. v. U.S.
Dep’t of Treasury,
686 F.3d 965, 983 (9th Cir. 2012) (holding that courts should
consider the "practical reality" of disclosure on an investigation, not the
government’s "abstract concerns[,]" and that redactions may prove to be a
compromise solution). Alternatively, the district court can make appropriate
findings to justify its blanket non-disclosure order, as our case law would require.
See Al Haramain Islamic Found., Inc., 686 F.3d at 980 (applying the balancing test
from Mathews v. Eldridge,
424 U.S. 319 (1976)); United States v. Thompson,
827
F.2d 1254, 1258–59 (9th Cir. 1987) (holding that "[a]bsent . . . compelling
justification, ex parte proceedings are anathema in our system of justice"). The
district court may wish to consider, for instance, Defendants’ concession at oral
argument that Plaintiffs here likely are no longer suspects in an ongoing criminal
investigation.
In Case No. 21-55059, AFFIRMED; in Case No. 21-70845, PETITION
GRANTED.
4
