9th Circuit, Alex Kozinski, Benchslaps

Avast Ye Maties! Kozinski Benchslap Ho!

Whenever a decision opens with the line, “[y]ou don’t need a peg leg or an eye patch,” you know you’re in for some fun.

The always colorful Judge Kozinski provides us with an entire opinion about piracy months before International Talk Like a Pirate Day. In this case, the putative pirates are whaling protestors from the Animal Planet series Whale Wars, and the Ninth Circuit thinks they need to leave some poor Japanese whalers alone.

In the process, Judge Kozinski delivers a scathing benchslap to the lower court judge who just so happens to have a much more famous brother (and niece).

Who is it? Batten down the hatches and let’s find out….

The case arose from the Western District of Washington and the courtroom of Judge Richard Jones, the half-brother of Quincy Jones and, by extension, the uncle of Rashida Jones.

Judge Jones determined that the actions of the anti-whaling group, Sea Shepherds, failed to meet the customary international law definition of piracy both because they were “non-violent” in targeting equipment rather than people and because they had a distinct disinterest in collecting booty. The latter finding is no joke: the customary international law definition of piracy requires “private gain” and the fact that Sea Shepherds get nothing out of their activities — except a fat check from a TV network — is critical to the case against them. Therefore, Judge Jones threw out the claims of the Japanese whalers (who call themselves “researchers” even though their scientific research permits are a sham) and let Sea Shepherds go on their merry way. What does Judge Jones have against clean burning whale oil?

Well, the Ninth Circuit disagreed with Judge Jones. Judge Kozinski wrote:

The district court’s interpretation of “violence” was equally off-base. Citing no precedent, it held that Sea Shepherd’s conduct is not violent because it targets ships and equipment rather than people. This runs afoul of the UNCLOS itself, which prohibits “violence…against another ship” and “violence…against persons or property.” UNCLOS art. 101. Reading “violence” as extending to malicious acts against inanimate objects also comports with the commonsense understanding of the term, see Webster’s New Int’l Dictionary 2846, as when a man violently pounds a table with his fist. Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent activities, even if they could somehow be directed only at inanimate objects.

When Webster’s is cited against you, you’re gettin’ a benchslappin’!

Judge Jones had also cited the fact that the Japanese whalers violated an Australian order barring the whale hunt in its waters as proof of the whalers’ “unclean hands.” Judge Kozinski noted that the U.S. doesn’t recognize Australia’s jurisdiction over those waters, meaning Captain Ahab-san and his crew could not have unclean hands. I mean, beyond massacring whales.

This brings us to the final benchslapping:

The district judge’s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.

Sea Shepherds is asking for the Ninth Circuit to hear the case en banc.

It’s a sad day in the Jones chambers,but Judge Jones can take heart that, though he may be overruled, he’s done all he can to ingratiate himself to the whales when ocean mammals rise up and conquer us all.

Court: Anti-Whaling Protesters Are ‘Pirates’ [Associated Press]
Institute of Cetacean Research v. Sea Shepherd Conservation Society [Opinion: Ninth Circuit Court of Appeals]

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