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Chief Judge of 9th Circuit: "1984 here at last," especially for poor

By       Message Adam Bessie     Permalink
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"1984 may have come a bit later than predicted, but it's here at last."

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"If you have the a cell phone in your pocket, then the government can watch you."

"Are Winston and Julia's cell phones together near a hotel a bit too often? ".The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations."

These are not the paranoid ravings of an anarchist blogger to fifteen of her friends, nor the neo-con conspiratorial palather of a sobbing Glenn Beck to a frothing million, but rather the words of a Chief Judge of the United States 9th Circuit Court of Appeals to his fellow judges in the wake of an August 12 ruling in the PINEDA-MORENO case, in which the Court upheld the right of the Federal Bureau of Investigation to plant GPS tracking devices in a person's car in his driveway that is, unless they can afford a large fence or gated community to ensure a right to the Fourth Amendment.

"I don't think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle's every movement and transmit that information to total strangers," Chief Judge Alex Kozinski writes in his vitriolic and elegant dissent on the ruling of the 9th Circuit, which refused to hear an appeal of defendant Juan Pineda-Moreno, who was caught "green-handed" with two garbage bags of marijuana in his trailer. "There is something creepy and un-American about such clandestine and underhanded behavior."

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Kozinski believes that the FBI acting with "un-American" and "underhanded behavior" violated Pinedo-Moreno's Fourth Amendment right to privacy by placing the GPS under his jeep without a warrant. And more striking, he frames the 9th circuit's refusal to hear his case as some form of discrimination against the poor, a form of judicial class warfare:

"But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism."

A judge critiquing the judicial system for a bias towards the wealthy? Accusing his fellow justices of cultural elitism? Calling the FBI "un-American" while defending a man caught with two garbage bags full of weed? Kozinski must be some sort of liberal plant in the system, an activist judge who makes Sotomayer look like a regular Scalia.

Somebody, call Fox quickly!

Alas, Fox will have a hard time knowing what to make of this one, which is likely why his words aren't there, nor apparently in any major corporate outlet as of 8/14/10.

Kozinski is far from a liberal plant: he counseled Ronald Reagan at the start of his presidency, and was appointed by Reagan to the appeals court in 1985, and according to Emily Bazelon's profile on the Judge in Legal Affairs, he has a picture with Reagan in his office. And according to the profile, "he is deeply suspicious of government power," and a staunch defender of private property and the right to bear arms. And yet, according to Bazelon, Kozinki doesn't appear a man to toe the party line. He also has a picture in his office with US Supreme Court Justice William Brennan Jr., a "liberal hero" and model "activist judge" who, according to the Washington Post "believed the courts should right social wrongs." The Associated Press dubs Kozinski a "Libertarian" Bazelon calls him, playfully, a "troublemaker."

And in his dissenting opinion, which I've reprinted in part below (and you can read in its entirety here), you can see this troublemaker at work, arguing that the judicial system is paving the way for "Oceania," particularly if you happen to be a prole.

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Kozinski's dissent is a must-read an eloquent plea to defend our right to privacy. In this first portion, he focuses on the unequal application of the Fourth Amendment for the rich and poor in this case:

The panel authorizes police to do not only what invited strangers could, but also uninvited children--in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there's no limit to what neighborhood kids will do, given half a chance: They'll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage [part of a homeowner's property].

The very rich will still be able to protect their privacy with the aid of gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel's ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don't quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner "would have no grounds to complain." Id.

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Adam Bessie is an assistant professor of English at Diablo Valley College, in the San Francisco Bay Area. He is a co-wrote a chapter in the 2011 edition of Project Censored on metaphor and political language, and is a frequent contributor to (more...)

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