Mourning the loss of the Fourth Amendment

Mr. Alex Kozinksi, the chief judge of the Ninth Circuit Court of Appeals and his law clerk, Stephanie Grace, penned an article on Axis of Logic mourning the death of the Fourth Amendment (which also seems to be an ongoing theme here).

“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”

As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.

When did the Fourth Amendment die, you ask?

Judge Kozinski's thesis is that we are to blame for the death of the right to be left alone by our own actions of convenience. We have eroded our reasonable right to privacy by using cellphones that track our movements -- either through the use of GPS or from cell tower signals.

Through our enrollment in supermarket loyalty programs we have created a trail of purchases that los federales have access to through the use of subpoenas. Our increased use of debit cards creates electronic records of our purchases.

If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.

As I have written before, we have handed over some of our right to be left alone on a silver platter in the name of "security." We have allowed courthouses to become fortresses rather than buildings where people seek justice. We have restricted access to the people's buildings - erecting metal detectors and placing armed guards in the lobby of the state capitol building in Austin.

But there's more to the story than that. While we have certainly contributed to the demise of the Fourth Amendment by waiving our reasonable expectation of privacy in electronic communications and the like, the police, judges and legislators are the ones who struck the death blow.

Once upon a time it meant something that warrantless searches were unreasonable. Once upon a time the requirement of probable cause prevented the long arm of the state from intruding upon its citizens. But, just as if you place a frog in a pot of cold water and gradually heat it up, the frog will sit there and die without knowing what happened, we have stood and watched as the courts attacked the right to be left alone at the margins.

Terry stops. Searches incident to arrest. Protective sweeps. Exigent circumstances.The PATRIOT Act.  Implied consent. No Refusal weekends. Little by little. Bit by bit. By the time anyone caught on to what was happening, it was too late. Before you knew it, the Fourth Amendment lay dying on the ground, streams of blood trailing behind.

The Fourth Amendment died the death of a thousand cuts.

Judge admonished for his "lack of judgment"

Federal Appellate Judge Alex Kozinski was admonished by his colleagues for posting sexually explicit material on a website accessible to the public (See "Judge not lest you be judged").

Kozinski has said he thought the material — which included a video of a man cavorting with a sexually aroused farm animal and a picture of nude women on all fours painted to look like cows — couldn't be seen by the public. The judge has also said he didn't believe any of the images were obscene.

"Is it prurient? I don't know what to tell you," he told the Los Angeles Times in a June 2008 interview. "I think it's odd and interesting. It's part of life."

Kozinski told investigators he sometimes saved e-mail attachments in a subdirectory without looking at them. He said he did not realize they would become available to the public when the family later put a file server online so they could access personal files when away from home.

Judge Kozinski blamed on that good ol' chestnut, a lack of judgment. Funny how that seems to work for those in positions of authority but woe be to poor young person who has one drink too many and is arrested for DWI or who tries to shoplift a couple of small items from a department store. Neither the prosecutor nor the court wants to hear about their lapse in judgment.

Judge not lest you be judged

U.S. District Judge Samuel Kent is not the only federal jurist in hot water for misbehavior. While Judge Kent's alleged misconduct has resulted in an indictment for federal sex crimes, his colleagues' misconduct has yet to result in any criminal investigations.


Thomas Porteous, a U.S. District Judge in New Orleans, is facing a possible impeachment over allegations he perjured himself regarding a bankruptcy filing and accepted gifts and money. He has been suspended from the bench. Judge Porteous filed for bankruptcy under a false name and attempted to hide evidence of his gambling losses. Porteous escaped criminal sanction as a result of the immunity he was granted as part of the disciplinary process.


Edward Nottingham, a U.S. District Judge from Denver, is being investigated due to his hobbies of going to topless clubs and frequenting escort services. Judge Nottingham has defended himself by blaming his problems on his own weaknesses. Funny, but that never seems to matter to the prosecutors at the Harris County (In)justice Center.

Manuel Real, a U.S. District Judge from Los Angeles, is in hot water as a result of his failing to provide reasons for his legal decisions -- admittedly a very important part of what a judge is supposed to do.


Finally, Alex Kozinski, a Federal Appellate Judge for the 9th Circuit, decided that putting sexually explicit material on his personal website was a good idea. I guess he never saw the commercial warning teenage girls not to post photos on the internet they wouldn't want their parents to see. Judge Kozinski requested that the investigation be conducted by another circuit.



All five judges are still being paid -- and will continue to be paid, as per the U.S. Constitution, until such time as they resign or are removed from office. Nice work if you can get it.