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June 17, 2008 (Computerworld) Nearly a week after the Los Angeles Times reported finding sexually explicit images on a Web site maintained by Alex Kozinski, chief judge of the U.S. Ninth Circuit Court of Appeals, questions are swirling in the blog world over whether he was the victim of a privacy breach or his own bad judgment.

Those defending Kozinski say the original story not only twisted some of the facts but was also based on information provided by someone who essentially broke into and accessed a private folder containing information that was clearly not meant to be shared. Others maintained that while Kozinski may not have intended for the images to be shared with the general public, he exercised poor judgment in allowing them to be accessed via the Web anyway.

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Chief Judge Anthony J. Scirica of the 3rd U.S. Circuit Court of Appeals and four other East Coast judges have been named to conduct the judicial misconduct investigation of 9th Circuit Chief Judge Alex Kozinski stemming from reports of sexually explicit images on a Web site operated by Kozinski's family.

Kozinski himself had called for the investigation, but the Judicial Council of the San Francisco-based 9th Circuit filed an order on Monday asking that the matter be transferred to the judicial council of a different circuit due to "exceptional circumstances."

Within hours, Chief Justice John G. Roberts Jr. assigned the investigation to the 3rd Circuit's Judicial Council, led by Scirica.

Just as quickly, Scirica announced that he had appointed a special committee that includes himself; 3rd Circuit Judges Marjorie O. Rendell and Walter K. Stapleton; U.S. District Chief Judge Harvey Bartle III of the Eastern District of Pennsylvania; and Chief Judge Garrett E. Brown of the District of New Jersey. The investigation was sparked by reports last week in The Los Angeles Times that said Kozinski kept pornographic images on a Web site that was accessible to the public, including "a picture of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal."

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I have been married to Alex Kozinski for over thirty years and we have raised three sons together. First, let me thank you for making the effort to discover the truth about what happened, and for giving me an opportunity to respond to the stories that have been circulating about Alex.

Turning to the facts of the matter, the LA Times story, authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of “website” to which he posted pornographic material.

Obviously, Glover’s use of the word “website” was intended to convey a false image of a carefully designed and maintained graphical interface, with text, pictures, sound and hyperlinks, such as businesses maintain or that individuals can set up on Facebook, rather than a bunch of random files located in one of many folders stored on our family’s file server. The “server” is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely.

Using the term “website” also gives the impression that Alex was actively aware of all of the material, when, in fact, it had accumulated over a number of years and he didn’t even remember that some of that stuff had been stored there or whether it had been put there by him or one of our sons, who also have access to the server.

Glover also wrote that “the sexually explicit material on the site was extensive.” In fact, of the several hundred items in the “stuff” folder, the vast majority was cute, amusing, and not in the least bit sexual in nature. For example, there’s a program that lets you build a snowman (no private parts involved). There’s a “stress reliever” that lets you take a virtual hammer to your desktop (which I’ve been using a lot lately). There’s a picture of freshly painted double-yellow lines that go right over road kill, with the caption “not my job award.” There’s something called “cool juggle” that shows a video of a guy juggling who drops a ball outside the frame and becomes a stick figure when he goes to pick it up. There are over 300 individual items in the “stuff” folder, the vast majority of which are of this nature. In addition, this folder contains about a half-dozen items that, while humorous, also have some kind of sexual aspect. Most of these you have already identified on your website.

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUSAN FRUNZ,
Plaintiff-Appellee,
v.
No. 05-35302
CITY OF TACOMA, a municipal
corporation; TACOMA POLICE D.C.
DEPARTMENT; ALAN MORRIS, TPD
Officer, in his individual capacity;
OPINION
GARY T. STRIL, TPD Sergeant;
DAVID ALRED, TPD Officer, in his
individual capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
October 25, 2006—Seattle, Washington
Filed November 13, 2006

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OPINION
KOZINSKI, Circuit Judge:
The facts are remarkable. Plaintiff, Susan Frunz, and her
two guests were in Frunz’s home in Tacoma, Washington,
when police surrounded the house, broke down the back door
and entered. The police had no warrant and had not
announced their presence. Frunz first became aware of them
when an officer accosted her in the kitchen and pointed his
gun, bringing the barrel within two inches of her forehead.
The police ordered or slammed the occupants to the floor and
cuffed their hands behind their backs—Frunz for about an
hour, until she proved to their satisfaction that she owned the
house, at which time they said “never mind” and left.
As the officers doubtless knew, physical entry into the
home is the “chief evil against which the wording of the
Fourth Amendment is directed.” United States v. United
States District Court, 407 U.S. 297, 313 (1972); see also Mur-
dock v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995)
(“[P]rotection of individuals from unreasonable government
intrusion into their houses remains at the very core of the
Fourth Amendment.”). To safeguard the home, we normally
require a warrant before the police may enter. “The right of
privacy was deemed too precious to entrust to the discretion
of those whose job is the detection of crime and the arrest of
criminals . . . . And so the Constitution requires a magistrate
to pass on the desires of the police before they violate the pri-
vacy of the home.” McDonald v. United States, 335 U.S. 451,
455-56 (1948); see also Groh v. Ramirez, 540 U.S. 551, 560
(2004). What extraordinary circumstances justified sundering
the privacy and protection of Frunz’s home without a war-
rant?

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Most impor-
tantly, reasonable officers would have tried to obtain a
warrant—a telephone warrant if they believed it was urgent—
and monitored the house to see if anyone went in or out.7
Bursting through the back door unannounced with guns drawn
and handcuffing the occupants—the owner for a full hour—
was neither necessary nor reasonable in these circumstances.8

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No reasonable officer familiar with the law of searches and
seizures could have thought otherwise.
Defendants rely on Murdock, 54 F.3d at 1440-41, but that
case provides them no help. The only similarity between the
two cases is that both plaintiffs owned houses where police
entered without a warrant. In Murdock, however, unlike our
case, “[t]he facts known to the police officers indicated that
a resident was not responding when the circumstances inside
the house strongly suggested that a resident should have been
present.” Id. at 1442.9 The police thus had reason to believe
that “a resident in the house might have been in danger or
injured.” Id. Murdock is also distinguishable because the offi-
cers caused no property damage on entry, and the majority
believed (wrongly it turns out, see LaLonde v. County of Riv-
erside, 204 F.3d 947, 957 (9th Cir. 2000)) that they therefore
needed to show only a “mild exigency” to justify the entry.
Murdock, 53 F.3d at 1442. We have found no authority even
remotely supporting the notion that officers confronted with
the situation here were entitled to ignore the constitutional
requirement of a warrant and probable cause, or to conduct
themselves as the jury must have found they did once they
were inside the house. No reasonable lawyer would have
advised the defendants otherwise.
In short, we must ask: Why is this case here? There may
have been some justification for going to trial because there
were disputed questions of fact about how the officers
behaved during the course of the intrusion into Frunz’s house.
But a jury made up of seven members of the community
heard the evidence and unanimously ruled in Frunz’s favor.
By not only finding defendants liable, but also imposing puni-
tive damages, the jury determined that the officers acted in
reckless or malicious disregard of plaintiff’s constitutional rights. Only the most misguided optimism would cause defen-
dants, 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.10

Bill Anderson

Jun 18 2008, 12:22 PM

To be honest, I wish Kozinski were the judge in the Duke cases. I can guarantee you that he would have held Duke and Durham to the fire. The man is no Ronald Stephens, that is for sure.