« Debate in Denver tommorrow | Main | New 2nd Amendment challenge in Texas »
Kozinski ruling on 4th Amendment
Both Instapundit and the Volokh Conspiracy are discussing a recent 9th Circuit opinion, in which Judge Kozinski upheld a judgment involving over $100K in punitives for police 4th Amendment violations. (As my friend Prof. Joe Olson noted, this is one more proof the country NEEDS Kozinski on the Supreme Court. Clue to Repubs: if there is an opening, it'd be hard for Demos to object very forcefully to him).
The facts are pretty eggregious. A guy leaves town, tells neighbor to watch his house. He's in a divorce proceeding, mentioned that he has an order of protection against the wife. Didn't mention that the judgment had just been entered, awarding her the house. She shows up and moves in. Neighbor calls police.
WIthout a warrant, police break thru back door, hold her at gunpoint, handcuff her and two friends, keep her in cuffs for an hour, treat her pretty impolitely, and finally let her go. As Kozinski notes, it would have been simple to ask her what she was doing there, or get the neighbor to call the ex husband to ask if she had a right to be there, or to ask her divorce attorney the same. Failing all that, they could at least have sought a telephonic warrant (and probably been turned down). The jury made the call, and there was nothing wrong with its ruling.
He ends up by suggesting that an appropriate response to the judgment would have been to write a check and send it with a letter of apology. The citizens of the city had spoken thru the jury, and there was no real basis for appeal. He sets it for a hearing on whether to give the lady double her costs as a penalty for a frivolous appeal.
UPDATE: my own take on why he isn't on the Supremes--the conservative movement really has two components, the rules-conservative (the world operates on rules and organizations to enforce them; if left alone things will go to hell) and the libertarian-conservative (rules and organizations are inefficient and abusive: if left alone people will do very nicely). They have relatively little in common except that liberalism hacks them off (I think maybe because liberalism involves essentially no rules as to matters of morality, which offends rules-conservatives, and unlimited rules as to anything else, which offends liberarian-conservatives).
Kozinski is libertarian-conservative, most of the Bush admin. is rules-conservative. It's probably something deeper than reason, pure instinct. They see him as ... well, his heart's in the right place, but a bit of a loose cannon. Better a guy who looks good in a suit, as it were. He might even (shudder) limit part of the war on terror (nevermind that the Supreme Court hardly ever touches that issue, it'd still be the way a non-con-law white house type saw the issue).
7 Comments | Leave a comment
Yeah, I've been deeply in love with Kozinski's rulings for a long time. He is a very good judge, a libertarian and funny to boot. I agree the Dems would have a tough time opposing him. I am honestly amazed he hasnt been nominated yet.
Yes, Kozinski is the Learned Hand of Libertarians and our generation, and why he isn't on the Supreme Court yet is a total mystery.
Yes, Kozinski is the Learned Hand of Libertarians and our generation, and why he isn't on the Supreme Court yet is a total mystery.
I suspect that you've answered your own question. The current administration doesn't have any more use for true constitutionalists or libertarians than the dems do.
Kozinski is actually a pretty tough sell to a large segment of the Republican base. He is a true libertarian, which puts him on the wrong side of the issue on abortion--an issue that motivates a lot of single-issue voters. The Libertarian Party may be making inroads into politics in a number of small markets, but they still have no place in national politics. After a Libertarian states his position on at least five issues, he has managed to offend everyone in the room with at least one of them.
While Libertarians (I identify with many of their issues) may support the right to abortion, I believe most would agree that Roe v. Wade was a terrible decision & that the Constitution doesn't prohibit states from enacting their own limitations.
Another reason I suspect Kozinski wouldn't be considered is that I suspect the next opening will almost certainly be reserved for a woman, likely a minority as well. Politics you know.
"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."
--
"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."
Nobody presently in power in Washington - Republican or Democrat - wants someone like that on the Supreme Court. Ken is absolutely right. Kozinski would be Kryptonite to the statists on both sides.
And I wish like hell he would be the next nominee for a Supreme Court vacancy. Perhaps then I could have some hope that we could stop our apparenly inexorable slide.
Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found officers Stril, Morris and Alred treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.
Ouch!