Monday, December 03, 2012

Two words best describe the majority opinion: “wrong” and “dangerous.” UPDATED with hilarious Kozinski video

That's how Chief Judge Kozinski starts his dissent in United States v. I.E.V.  You gotta love his writing style:

My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16-17 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 18 n.6. It doesn’t: If the dog alerts to something

that might be drugs or humans, that something could be
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 20 (quoting Miles, 247 F.3d at
1015). ...


From the conclusion:

It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there

when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.

Update:  One of the funniest videos I've seen (h/t AP):

2.  John Pacenti covers the upcoming trial before Judge Scola involving the issue of depos in Pakistan.  They don't have the Federal Public Defender's resources (because their client has been dismissed out of the case), so preparing has been tough:

In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It's a defense that will partly center on free speech, a government informant who infiltrated the clerics' mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
"This is like putting on a wedding for a thousand people with a staff of two," said Joseph Rosenbaum, the Miami attorney for Izhar Khan. "This is a tremendous undertaking."
"Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure," said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.


Rumpole said...

Wrong and dangerous. I just naturally assumed he was talking about me.

Anonymous said...

the less flowery majority opinion, however, was more analytically honest and had the right tone back at him. funny how being right usually helps such things.

Anonymous said...

If the rule is to be objectively reasonable police officer - the Judge's subjective fear as a self-described cowardly individual has no bearing on the legal test.

I normally agree with him, but this one I think he be off on.

Anonymous said...

Even funnier, Youtube has a young Kozinski on the Dating Game where he gets picked (over Squiggy from Leverne and Shirley) and then proceeds to give the young woman a tonsillectomy

Anonymous said...

The point AK was trying to make was that quite often circuit judges have a skewed perspective of what it's like to be an officer on the beat. When he said he'd dive for cover and wouldn't be the first there, he meant that its one thing play armchair quarterback from the comfort of chambers, and quite another to be called upon to act when presented with whatever circumstances a given case presents. This is a long way of saying your critique of AK's dissent is off the mark.

Anonymous said...

i understand his point; it is misplaced here where the officers never said they feared for anything. this was a generalized search which stop and frisk is not supposed to be about. the majority was applying the law. he was relying on his personal preferences.

Anonymous said...

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