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Judge Kozinski Benchslaps Sea Pirate Hippies, Federal Judge

By William Peacock, Esq. | Last updated on

Take a bow, Chief Judge Alex Kozinski.

What's your personal record for insulting people in a single day? Unless you are a tact-less celeb or gaffe-tastic politician, it's probably in the single digits. Judge Kozinski labeled a group of environmental activists "pirates" (using the law to back his assertion), pointed out Australia's impotence in international whaling law, and then questioned a district court judge's ability to perform his duties. In a single opinion.

That's how you run an appeals court - like a boss.

The Sea Shepherd Pirates

Legally Pirates

How does one define a pirate? They ram ships. They destroy propellers. They fling acid-filled projectiles. Chief Kozinski's oh-so-quotable line to begin the opinion was, "You don't need a peg leg or an eye patch ... you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be."

Two international laws, the United Nations Convention on the Law of the Sea and the High Seas Convention, define pirates almost identically. UNCLOS defines it as

"illegal acts of violence ... committed for private ends by the crew or the passengers of a private ship ... and directed ... against another ship ... or against persons or property on board such ship."

Judge Richard Jones interpreted "private acts" to mean "for profit." The Ninth Circuit referred to it as the antonym of "public", which includes any private or personal interest. This includes freeing Willy, fighting whaling, or saving trees. Prior pirate cases have interpreted "private" as any actions not taken on behalf of a state.

The vocabulary lesson continues with the definition of "violence", which should be obvious, but apparently wasn't. Judge Jones declared the Sea Shepherd's acts nonviolent because they did not target humans. Never mind UNCLOS' own text, which prohibits "violence ... against another ship." Besides, even under the misdefinition of violence, flying acid-filled projectiles still endanger the life of the crew. Stranded ships in Antarctic waters aren't particularly safe either. Just ask Jack.

Verdict: Arrr. Mateys be pirates.

Injunction Malfunction

Judge Jones relied upon the doctrine of unclean hands to deny an injunction that would have prevented the Sea Shepherd from harassing Cetacean because the whale-hunting scientists flouted Australia's order prohibiting them from whaling in the Southern Ocean. The problem is, he deferred to a government with no power to issue such an order. Neither the U.S. nor Japan recognize Australia's jurisdiction over Antarctic waters. Their order has about the same force as one issued by, say, Djibouti.

Judge Richard Jones Benchslap

After 15 pages of citing and correcting Judge Jones' mistakes (we couldn't list them all), the Ninth Circuit twisted the knife a bit more:

"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."

Ouch. In addition to a reversal, remand, and near-reprimand, the court ordered the case to be reassigned to a different judge.

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