Judge Alex Kozinski, “Libertarian”

Many libertarians over the years have hailed the employee/agent of the illegal, criminal US state’s “judicial” branch, Alex Kozinski, as a fellow libertarian or libertarian-leaning judge. He has profiles in Reason magazine, is idolized by Objectivists, etc. How great it is that we have a libertarian judge ensconced in the criminal federal courts! Why, he even writes witty legal articles! Hell, even my friend Walter Block and other libertarians have written about how great it would be if libertarian lawyers like Kozinki (and me!) could be nominated to the Supreme Court. As Reason interviewer Shikha Dalmia gushes:

In another famous dissent, Kozinski took on the court’s liberal judges for denying the right of an individual to bear arms. “The panel’s labored effort to smother the Second Amendment by sheer body weight,” he wrote, “has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it.” Kozinski is also a great ally of the First Amendment, defending the free speech rights of flag burners and homophobes alike. All that, combined with his hatred of statism and his enthusiasm for the free market, has earned him a reputation as one of the most libertarian judges in the country.

Damn. Damned by faint praise, I guess. They all seem statist sell-outs to me. Clarence Thomas, Kozinski, all of ’em. Consider “libertarian” Kozinski’s words in a recent case, discussed in A Ticket, 3 Taser Jolts and, Perhaps, a Trip to the Supreme Court. In this case one Malaika Brooks, who was seven months pregnant, was driving her 11-year-old son to school in Seattle when she was pulled over for speeding. “The police say she was going 32 miles per hour in a school zone; the speed limit was 20.” She was willing to accept the speeding ticket but refused to sign it (the stupid law required it; who knew). She thought that would be an acknowledgment of guilt (wonder why she thought that?). So the cops summoned even more cops, and ordered her out of the car, but she refused. What happened next is disgusting:

The situation plainly called for bold action, and Officer Juan M. Ornelas met the challenge by brandishing a Taser and asking Ms. Brooks if she knew what it was.

She did not, but she told Officer Ornelas what she did know. “I have to go to the bathroom,” she said. “I am pregnant. I’m less than 60 days from having my baby.”

The three men assessed the situation and conferred. “Well, don’t do it in her stomach,” one said. “Do it in her thigh.”

Officer Ornelas twisted Ms. Brooks’s arm behind her back. A colleague, Officer Donald M. Jones, applied the Taser to Ms. Brooks’s left thigh, causing her to cry out and honk the car’s horn. A half-minute later, Officer Jones applied the Taser again, now to Ms. Brooks’s left arm. He waited six seconds before pressing it into her neck.

Ms. Brooks fell over, and the officers dragged her into the street, laying her face down and cuffing her hands behind her back.

In the months that followed, Ms. Brooks gave birth to a healthy baby girl; was convicted of refusing to sign the ticket, a misdemeanor, but not of resisting arrest; and sued the officers who three times caused her intense pain and left her with permanent scars.

Now, in the ensuing lawsuits, what was Kozinski’s opinion? Why, the woman was asking for it. She was “defiant” and “deaf to reason” and so had brought the incident upon herself:

As for the officers, he said: “They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.”

This is libertarian? No. It’s defense of the police state. The heroic Will Griggs, in his column If Cops Can’t Taze a Pregnant Woman, The Terrorists Will Win, puts it this way:

In his dissent, Judge Alex Kozinski maintained that Brooks “had shown herself deaf to reason, and moderate physical force had only led to further entrenchment…. Brooks was tying up two line officers, a sergeant and three police vehicles – resources diverted from other community functions – to deal with one lousy traffic ticket.”
Who was responsible for this “diversion” – Mrs. Brooks, who was merely being uncooperative, or Officer Ornelas and his comrades, who needlessly escalated a disagreement over “one lousy traffic ticket” to the point where potentially deadly force was used against someone accused of a trivial traffic offense, rather than an actual crime?
“The officers couldn’t just walk away,” complains Kozinski. “Brooks was under arrest.”
There was no substantive reason why the police couldn’t walk away – if they had been acting as peace officers, that is, rather than as armed enforcers of the revenue-consuming class.
Libertarians who think the right strategy is to coopt the state machinery, who think it’s even possible to be a powerful agent of the central state and remain a libertarian, should think again. To become part of that machinery, you have to fool everyone, if not yourself, that you buy into the statist myths prevalent today.
Update: It is entirely possible that Kozinski is “right” on the constitutional law here, since, of course, constitutional law is statist. (Although I don’t think it’s really that clear; there’s lots of wiggle room; see Hasnas, The Myth of the Rule of Law.) But a real libertarian who somehow, per impossible, ended up on such a federal court, would do one of several things:
  1. Resign, rather than participate in this state crime.
  2. Find a way to vote against the unlibertrian result by contorting the “law” in a libertarian direction.
  3. Say to hell with the law, and vote for the just result (see my post, Higher Law).
  4. Or, at the very least, admit that the law permits the cops to do this, but add a dissenting opinion criticizing it as unjust and immoral and inhumane and display your disgust with the criminal state. Then see item 1: resign.

Any of these would be preferable to praising the jackbooted thugs.

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