Today the U.S. Attorney’s Office in Los Angeles filed a notice of appeal of the District Court’s decision granting the motion to dismiss. It’s important to note that this does not mean the case will actually be appealed. The Solicitor General must approve the decision to appeal for it to go forward, and this may simply be a protective notice in light of the fact that the government has 30 days to file a notice of appeal under the federal rules.
It is also worth noting that just ten days ago, the Ninth Circuit rejected a line of cases that the government had relied on in the Lori Drew prosecution in a civil case, LVRC Holdings v. Brekka. Judge Wu had accepted the government’s broad reading of the statute as a matter of statutory interpretation, but dismissed the case because of the constitutional vagueness problem. Under Brekka, however, the Ninth Circuit seems to have adopted a narrower view of the statute as a matter of statutory interpretation.
In any event, if the Government does in fact appeal the Drew case, I plan to work on the appeal.