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Rehearing Denied in Ziegler:
I confess I lost interest in the United States v. Ziegler case after the panel changed course and reversed its holding on the reasonable expectation of privacy in computers in the private-sector workplace. Decisions applying the Fourth Amendment to computers seem to be falling out of the trees these days, and the panel's second ruling on third-party consent was pretty fact-bound. However, it turns out that a bunch of Ninth Circuit Judges were still paying very close attention to the case. Check out the opinion dissenting from rehearing en banc by Willie Fletcher joined by Pregerson, Reinhardt, Kozinski, Hawkins, Thomas, McKeown, Wardlaw, Fisher, Paez, and Berzon, a.k.a. "the Libs + The Easy Rider." Judge Kozinski also filed a very heated separate dissent (albeit one that misspells "rehearing" in the title).

  Hat tip: Above the Law.
John (mail):
Judge Kozinski claims that the panel made up the fact of the employer's consent, and asserts that the lower court, not the appellate court, should be in charge of findings of fact.

This carries great irony, as appellate courts routinely decide questions of fact (e.g., when a person has "a reasonable expectation of privacy"). Indeed, even the issue of consent turns on the reasonableness of varioius persons' understanding of behavior and words, and whether this or that combination of words and deeds constitutes "consent." How many appellate decisions spend page after page examining just that? Answer: a lot.

Saying that the court will leave questions of fact to the lower court is just a euphemsim in judgespeak for "leave me alone on this issue." When the judge wants to dive in, he always does.
6.22.2007 12:13am
OrinKerr:
John,

Often a fair point, although the "reasonable expectation of privacy" isn't a good example. That's a pure question of law, not a question of fact.
6.22.2007 2:01am
anonVCfan:
Judge Kozinski argues that the panel decision errs by failing to hold the government to the waiver rule, and suggests that because it is "appl[ied] with some vigor against criminal defendants," and should therefore be applied no less vigorously against the government.

I think he's drawing a false distinction. Generally, the waiver rule is applied more harshly against appellants than against appellees. If the government had filed no brief at all, the defendant wouldn't necessarily be entitled to a reversal. The appellate panel would scrutinize the arguments, see if they had merit, and would presumably remain free to affirm on alternative grounds.

In practice, this rule is applied more often against criminal defendants than against the government, because criminal defendants are usually appellants rather than appellees. If this seems inequitable, the easy response is that it is only because defendants can appeal convictions, but the government can't appeal acquittals.
6.22.2007 2:48am
BruceM (mail) (www):
Judge Kozinski says the public will lose more confidence in the courts by a court making up a reason to uphold an invalid conviction than by properly vacating the conviction and sentence of someone found with kiddie porn (a per se pedophile despite the facts of the case). MY confidence is shattered, but the general public's confidence is most certainly preserved. "Court upholds conviction of pedophile" makes people much more confident in our courts than "Court vacates conviction of pedophile and lets him loose on the streets near your children." It's unfortunately this binary choice.
6.22.2007 3:04pm
Dave N (mail):
Another interesting thing I noticed in this opinion is that the original panel (O'Scannlain, Silverman, and Gould) made a point of filing their own currence from the denial of rehearing en banc to criticize the dissents.
6.22.2007 6:45pm
John (mail):
Orin,

I think you are right, but in a way that does support what I am saying; the courts have taken a typical factual question--what is or is not reasonable--and made it a "pure" question of law so that they are always free to second guess a fact finder (this is also shown by the fact that any genuine inquiry into what might be regarded as "reasonable," e.g., by surveys, is usually forbidden).

I guess what I'm saying is that there is (obviously) a very fine line between what a court will call a "factual" question (translation: left to the trial court) and a "legal" question (=up for grabs by any court). I suppose that as long as we understand that words like "factual" and "legal" in this context only have the meanings I gave, there is no harm.
6.23.2007 11:46am
OrinKerr:
John,

I think our disagreement is in your assumption that what is "reasonable" should normally be a factual question. I think that completely depends on what the Court means by "reasonable".
6.25.2007 3:08pm