Conn v. City of Reno; and Judge Alex Kozinski's Views on Section 1983 Cases

I didn't read the panel's initial opinion in Conn v. City of Reno.  I gathered from the first paragraph of Judge Kozinski's dissent from denial of rehearing en banc, that the panel's opinion raised a DeShaney issue.  Kozinski obviously wants this one reviewed by the United States Supreme Court:

Chief Judge KOZINSKI,withwhomJudgesO’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN,BEA and IKUTA join, dissenting from the denial of rehearingen banc.
Until this opinion came along, police officers weren’trequired to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs.Responsibility for preventing suicide rested with the individ-ual and the family, not the state. But the panel has discoveredthat the Constitution demands a change in job description:Judges will henceforth micromanage the police, who in turnwill serve as mental health professionals. The panel’s reason-ing has no stopping point, and our decision to let it standthreatens unprecedented judicial intervention in our local institutions.
Read the rest here.

Judge Kozinski has an interesting view on Section 1983 cases.  Perhaps not coincidentally, it's my view.  Judge Kozinski has very little sympathy for police misconduct, and civil rights violations more generally.  He defines "civil rights violations" less broadly than someone like, say, Judge Stephen Reinhardt.

Probably the best example of Judge Kozinski's thinking on civil rights issues is Norwood v. Vance (here).  In Norwood, prisoners sued for being deprived of outdoor exercise.  The oral argument was viscious.  Judge Kozinski mocked the claim.  Which I would have done, too.  Shaun Martin described Kozinski's Norwood opinion thusly:
Chief Judge Kozinski is sometimes the swing vote in close civil liberties cases. So in this case, in which the other panel members are Judge Callahan and Thomas, it's not entirely surprising to discover that the party who wins Kozinski is the party who wins.
But just because you're sometimes a swing vote doesn't mean you're a moderate. This Kozinski opinion could have just as easily been written by Judge Callahan.
Sure, prisoners shouldn't be starved, or raped, or beaten by guards.  But prison is not supposed to be a nice place.  It should suck.

In the free world, police should not go around clubbing citizens, or tasing anyone who walks away from them.  That said, police are not social workers.  It's not a police officers job to prevent suicides.  Cities shouldn't be held liable because police do not know how to recognize a suicide risk.

Others obviously take a different view, though I think Kozinski's is the most sensible.  Judges like Consuelo María Callahan would grant qualified immunity to a cop who raped your spouse in front of you.  "Well, no cases technically held that forcing a citizen to watch the rape of his spouse is unconstitutional."  Judge Reinhardt would bankrupt cities by holding that every sneeze is a civil rights violation.

Judge Callahan is Texas.  Decent, rational people mock Texas justice for a reason.  Judge Reinhardt is California.  If you want to see what happens to a state that makes everything a civil right, start following California's budget crisis.

The truth is generally the mean between two extremes.  Judge Kozinski has found the golden mean on civil rights issues.

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