In Duncan v. Bonta, No. 23-55805 (9th Cir. Mar. 30, 2025) (en banc) – a Second Amendment challenge to California’s ban on large-capacity magazines – the en banc Ninth Circuit debates whether a judge could validly file a video dissent that displays handguns and describing their operation.
Judge Richard Posner of the Seventh Circuit broke ground in a wage-and-hour case about a decade ago by making a video of his law clerks donning and doffing sanitation gear (the central issue in the case). Mitchell v. JCG Indus., Inc., 745 F.3d 837, 842 (7th Cir. 2014). The decision drew interest at the time but didn’t inspire much more (if any) judicial filmmaking.
Here, dissenting Judge Lawrence VanDyke struggles over the best way to convey that a magazine is really “is an inherent and ‘necessary’ part of the arm itself” rather than simply an (unprotected) accessory, significant to the Second Amendment analysis.
“Initially, I planned to explain my reasons for dissenting on this conceptual point through usual judicial means alone: describing in writing some real-world illustrations to explain how the majority’s supposed ‘arms–accessory’ distinction collapses. But at argument it became clear to me that a visual illustration would greatly aid my colleagues and the parties in better grasping how this rather obvious conceptual problem specifically applies to firearms. So instead of straining to use written words to explain the many different parts of a gun and how each part could easily be deemed an ‘accessory’ under the majority’s vacuous test, I have decided to deliver part of my dissent in this case orally—via video—under the established wisdom that showing is sometimes more effective than telling. Please click the link below and enjoy [sic!] the presentation:”
“https://www.ca9.uscourts.gov/media/23-55805/opinion”
“As I hope the video portion of this dissent helpfully illustrates, an ‘arm’—just like most other categories of objects known to the human experience—is a broad conceptual term covering an almost limitless variety of configurations within that category.”
The majority opinion, though, gives the video two thumbs down (or, for this generation, a Rotten score). It cites (in a footnote) an “appellate-judge-made video” in the dissent “which neither the district court nor any party has ever seen or had an opportunity to comment on.” It criticizes the clip for “clearly contain[ing] facts outside the record developed before the district court.” And it closes noting that the principle of “[j]udicial notice plainly does not authorize the judge-made video contained in Judge VanDyke’s dissenting opinion.”
Judge Berzon, concurring (and writing for five judges), calls the video “wildly improper.”
“I write separately to point out two fundamental problems with Judge VanDyke’s reliance on his self-made video: First, the video is not part of his written dissent and it includes facts outside the record, so the panel is right to ignore it. Second, and more egregiously, Judge VanDyke has in essence appointed himself as an expert witness in this case, providing a factual presentation with the express aim of convincing the readers of his view of the facts without complying with any of the procedural safeguards that usually apply to experts and their testimony, while simultaneously serving on the panel deciding the case. While the facts Judge VanDyke asserts must be ignored, his wildly improper video presentation warrants additional comment, lest the genre proliferate.”
Judge Berzon specifically notes that the Ninth Circuit’s General Order 4.5(a) does “not allow a video to operate as a ‘disposition,’ a term that includes separate opinions.” Indeed, “our entire legal system has long . . . evolved to one built around written precedent. And in this circuit, our rules require it. Perhaps our written-disposition rule should be reevaluated in light of new technology. But we have a clearly defined process for considering such changes; that process has yet to be invoked toward that end.”
“[T]here is another, even more troublesome problem with the recording: Judge VanDyke himself appears in the recorded presentation making factual assertions about how guns work and providing physical demonstrations to support his assertions. By doing so, Judge VanDyke casts himself in the role of an expert witness, speaking to the type of ‘technical’ and ‘specialized’ issues that are reserved for witnesses properly ‘qualified as an expert.’”
“True, the prejudice to the parties here is arguably minimal because Judge VanDyke has prepared his video in support of a dissent. But if a dissent can rely on a judge’s recorded factual presentation, nothing prevents a majority opinion from doing the same thing. I therefore write separately in the hope that in the future my colleagues, whether in the majority or dissent, will do exactly and only that: write. And, although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses, expert and otherwise.”
Judge VanDyke answers his detractors in his dissent.
He denies that the video link violates circuit rules. “We have long included links to videos in our court’s opinions, as well as pictures, timelines, and diagrams. Nobody thought that was a problem until now, and Judge Berzon even defends that practice in her concurrence. In short, Judge Berzon’s overreading of General Order 4.5(a) is just that—an overreading.”
“Judge Berzon’s related accusation that the video portion of my dissent introduces ‘facts outside the record’ is misguided for the same reason. Again, the fundamental purpose of the video is to convey a conceptual point, not any particular disputable facts about guns. The same conceptual point could have been illustrated in video form using essentially any tangible object. I could, for example, have referred to the variety in foot types or bobbin styles on a sewing machine to illustrate the inherent indeterminability in making the majority’s inappropriate legal test turn on whether part of an object is an ‘integral part’ or merely an ‘accessory.’ Or I could have stood by a car and talked about tires and windshield wipers. The factual specifics of how any particular parts work on any particular object is not what is important—it’s the conceptual point that matters.”
And the final retort: “If you don’t like the video portion of my dissent, then don’t watch it.”
Paul Mollica's Federal Courts Blog 