Archives for posts with tag: guns

[We’re working on a hot project for next week, which originally was to be for this week, but production was interrupted due to lack of research materials. Sorry, we won’t review a book until we have it in our hot little hands. We aren’t pundits on major media. They get paid to do that kind of thing; we don’t get paid at all; so we have the luxury of standards.

So, lacking anything publishable in the in-box, I polled the staff for ideas. What can we do very quickly, I asked, to publish something this week? One guy said he’s been experimenting with his new phone, and found out how to take a picture with it. He could donate a great picture of a bagel from a nearby coffee bar. [At least it wasn’t a donut.] It was appetizing for sure, and very artistic; but, frankly, not our kind of thing. There’s no policy or social commentary inherent in bagels; at least not right now. So I turned it down.

Then there was the guy who wanted to do a rant on gender-bending sociologists, and how they threaten the English language. Look at the nonsense they teach! I turned that down also, at least for now. My theory was this: Apparently there are 50 or more of the new genders, or sub-genders; at least that’s what I’m told. How can that be a threat to our language? No students will remember any of that stuff after the exams they’re cramming for are over, so they won’t use it, either. Only the Government would adopt that kind of thing. Can you imagine the furor it might cause if someone incorrectly identified his or her [or …?] gender on a federal form and is prosecuted for it?[1] Now that would be a blog! Come back when something like that happens.

So that leaves me with Larry’s suggestion, which is to commemorate the end of the 8 judge Supreme Court. Will the new justice inject more partisan rancor into the Court’s deliberations? Will his presence mark the end of the occasional “unanimous” Court decision? Frankly I don’t know, but perhaps Larry does.]

I don’t either and won’t speculate. There aren’t many unanimous opinions in a year, and I don’t know if they will increase or decrease with the advent of Justice Gorsuch. Only time will tell. But I do have an interesting one, Dean v. United States,[2] that came out just this month and shows what the pre-Gorsuch Court could do when the Government clearly overreached. Let me explain.

Levon Dean, Jr. and his brother were not nice people. They robbed a methamphetamine dealer in a motel, and another at home, and used a modified semiautomatic rifle both times. Apparently the gun wasn’t fired: it was used to threaten the victims, and later to club them.[3] At the end of the trial Levon Dean was convicted of:

  • one count of conspiracy to commit robbery,
  • two counts of robbery,
  • one count of possessing a fire­arm as a convicted felon, and
  • two counts of possessing and aiding and abetting the posses­sion of a firearm in furtherance of a crime of violence.[4]

Dean did not challenge these convictions, but disputed the way his sentences were calculated.

The last charge was brought under 18 U.S.C.  §924(c). That statute “criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime.” The two robbery convictions “qualified as predicate crimes of violence” under that statute.[5] However, §924(c) was very important for sentencing purposes: it provides that, in addition to any other sentences, someone who uses a firearm in a “drug trafficking crime” will get a mandatory minimum sentence of 5 years for the first offense, plus 25 years for the second. So someone like Dean, who had a first offense and a second in the same incident, was facing a mandatory minimum of 30 years, plus whatever might be assessed for the other counts.

The mandatory minimums had to be run consecutively – that is, in addition to – anything imposed for the other offenses. “For Dean, this meant a 30-year mandatory minimum, to be served after and in addition to any sentence he received for his other counts of conviction.”[6] The trial judge recognized that the 30 years was, indeed, mandatory, but saying that Dean “was ‘clearly the follower’ and that he lacked ‘any significant history of any violence,’ agreed that 30 years plus one day was ‘more than sufficient for a sentence in this case.’”[7] There were guidelines that recommended more than 1 day for the remaining crimes, and the trial judge felt constrained by Circuit precedent to do more; but due to the severity of the mandatory minimum sentences, he still imposed less than the guidelines.[8]

Sentencing decisions are guided by statute, specifically by 18 U.S.C. §3553(a) and the factors it specifies:

The list of factors is preceded by what is known as the parsimony principle, a broad command that instructs courts to “impose a sen­tence sufficient, but not greater than necessary, to comply with” the four identified purposes of sentencing: just pun­ishment, deterrence, protection of the public, and rehabili­tation ... A sentencing court is then directed to take into account “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing … The court must also consider the pertinent guidelines and policies adopted by the Sentencing Commission.[9]

The Government argued, and the appellate court agreed, that the trial court should have calculated the proper sentences for each count without adjusting any of them to account for the impact of mandatory minimum sentences impose by §924(c). The mandatory minimums are imposed to prevent “district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory mini­mum under §924(c) is already punishment enough.”[10]

But the Court found “no such intent [to limit judges] in the language of §924(c).” That language “simply requires any mandatory minimum under §924(c) to be imposed ‘in addition to’ the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sen­tencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.”[11] In short, while the mandatory minimums can’t be changed, other sentences can.

So what conclusions do we draw from this? Well, perhaps that the Court doesn’t much care for mandatory minimum sentences; that it thinks sentences should be tailored to the crimes; that it will give mandatory minimums force and effect when they are expressly required by law; but that it’s not eager to expand them beyond their obvious scope and intent. Anyway, that’s what looks to be the view of 8 judges on the Court. What about Justice Gorsuch? Who knows, perhaps he agrees that enough is enough?

 

 

[1] That’s for making a “false statement,” of course. See, e.g., 18 U.S.C. §1001(a): “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both ….” The statute is available from the GPO, at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap47-sec1001.pdf There are lots of other “false statements” provisions in the U.S. Code, but this is the one you often see cited on federal forms, like those you might use to apply for a government job.

[2] Dean v. United States, 581 U.S. ___ (2017) (slip opinion) (hereafter cited as Dean at ___.) The Court was unanimous; the opinion of the Court was delivered by Chief Justice Roberts.

[3] See Dean at p. 1 – 2.

[4] Id. at 2. See 18 U. S. C. §§2 & 924(c).

[5] Id. at 2.

[6] Id.

[7] Id.at 3.

[8] Id. at 3: “. Viewed on their own—and not as part of a combined package—those counts plainly warranted sentences longer than one day. In the end, the judge still granted a significant downward variance from the 84–105 month Guidelines range. Dean received concurrent sentences of 40 months for each non ­§924(c) conviction ….”

[9] See Dean at 4.

[10] Id. at 8.

[11] Id.

First of all, the Big Bang wasn’t very big. Second of all, there was no bang. Third, Big Bang Theory doesn’t tell you what banged, when it banged, how it banged. It just said it did bang. So the Big Bang theory in some sense is a total misnomer.

Michio Kaku[1]

No, no! Don’t talk about the big bang! Talk about the bang a gun makes when someone pulls the trigger! That’s your topic!

G. Sallust[2]

OK, this is Larry, and G. Sallust has asked me to talk about guns or, to narrow the focus a bit, about when our police can shoot them at civilians and possibly get away with it. While not common, police shootings are headline events when they occur and the reporting is not always, shall we say, accurate. So I thought this might be a good opportunity to talk about the rules that apply to you and me, and to the police, and how they might differ. This little dissertation is for information only; it’d not for me to decide what the rules ought to be. I leave that to the courts, our legislators, whoever they might be, and the voters. I’m just trying to tell you, as of now, the way things are.

Self Defense

Let’s start with self-defense. As you’ve probably heard, people have a right to defend themselves when they reasonably believe their life is threatened and there’s really no way to escape. This is generally a matter of state law. Some states want you to retreat, if possible, when threatened; others say that you can “stand your ground,” but can react, again, only if you are reasonably afraid for your life. In either case, I think, if an aggressor has you on the ground, and is beating you mercilessly, and you have a gun, probably you can draw it and fire. At least that’s what I think. But this is just my opinion. Check with a local attorney if you want to know how things are where you live.[3]

So what rules do the police follow when they’re enforcing the law? Can they fire only in self-defense, and must they retreat to the wall; or does their job allow them to do more? Good questions all, but the big difference between them and us is that, for the most part, they can’t be sued by grieving relatives, etc., when they make a mistake. Today I’m going to focus on why that’s true, and what the exceptions might be.

Sovereign Immunity

There’s a hoary old rule that says our various governments, federal and state, are sovereigns immune from suit.[4] “Generally, the idea is that the sovereign … is immune from lawsuits or other legal actions except when it consents to them.”[5] The federal government seems to get this immunity through tradition and judicial precedent. The states get theirs in part because their immunity, it’s said, is guaranteed by the 11th Amendment to our Constitution.[6]

But, of course, nothing in the law is quite that simple. The Federal Government, for example, has waived its immunity from suit in a wide range of personal injury and other tort suits.[7] A tort is a civil action, usually for money damages, to remedy a civil wrong. [“A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”][8]

OK, suppose the Government is, in fact, immune from suit in a specific matter, can a person aggrieved sue the Government employees instead? That’s another good question, and the answer has “evolved” over time. At least that’s what I would call it. At the Federal level it’s always been clear that the President couldn’t be sued; after all, he is the head of the whole shebang, and the closest thing we have to a king. So who else should be privileged against suit, and why should that be?

Well, back in the day the Supreme Court ruled several times on that question. It found that judges acting as judges were privileged[9], as well as others engaged in the judicial process[10]; that the Postmaster General was similarly privileged[11]; and even the Acting Director of the Office of Rent Stabilization, when that entity existed.[12] Why?

The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.[13]

So these people had an “absolute” privilege, i.e., simply couldn’t be sued for performing their duties. They needed to be insulated from civil liability so that they could do their thing in a “fearless, vigorous and effective” way. But what about lower level officials, say law enforcement types? Are they also privileged, to act with impunity? How about if they violate the U.S. Constitution?

The Fourth Amendment

For these purposes let’s treat federal and state law enforcement as the same thing. Both are bound, theoretically at least, by our Constitution. So what part of that document are law enforcement people most likely to infringe upon? My guess is the Fourth Amendment. That’s the one that says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[14]

Back in 1971 a very interesting case was decided that stated, apparently for the first time, that a citizen can sue federal agents personally if they violate his [or her] 4th Amendment rights.[15] That is, the Court ruled that citizens have a cause of action under the 4th Amendment; they can raise it in federal court; and the courts have jurisdiction to hear it. That was all well and good, and certainly was ground-breaking at the time. The decision recognized a “constitutional tort”; but the Court didn’t decide whether the defendant agents could assert sovereign immunity as a defense. It remanded that particular issue to the lower courts for further consideration.

Absolute Immunity

So here we are, back with sovereign immunity. Most of the early cases we discussed dealt with the “absolute” immunity enjoyed by government officials who were more or less high up in the bureaucratic food chain. If one is “absolutely” immune, it sounds like there are no exceptions. Hold the job, and get the immunity. These days, however, there’s a new kind of immunity out there – the “qualified”- kind, that the courts seem to prefer.

The recent trend seems to be that even high officials get only qualified immunity. I realized this a few years ago when I read a case involving John Ashcroft, Attorney General under President George W. Bush[16]. Mr. Ashcroft was taken to task for his liberal use of the “material witness” law after the terrorist attack of 9/11; he detained some people even though [apparently] he didn’t intend to use them at a trial, on the mistaken theory that he could do so in an emergency. He argued that he was entitled to absolute immunity, but the Court found he was protected by the “qualified” type, and there was no need to look further.[17] The Court had no opinion as to whether Mr. Ashcroft also had absolute immunity against civil suits.

What standards govern qualified immunity? It just so happens we have some recent new wisdom from the Supreme Court on that very issue.

Qualified Immunity

If an individual is immune from suit, that means he [or she] can’t and shouldn’t be sued. Any suit filed should be dismissed even before a trial. Trials are lengthy and burdensome to the defendant, and if he [or she] is immune from suit, they serve no purpose. The Supreme Court says qualified immunity is important to “society as a whole,” presumably because it helps those who enforce our laws. It’s “effectively lost if a case is erroneously permitted to go to trial.”[18]

No doubt that’s a good thing for the employee, to be immune from suit. Certainly I agree. But if the immunity is only “qualified,” what does that mean? Basically qualified immunity attaches, and the police are immune from prosecution for doing their jobs, so long as (i) they don’t “violate clearly established statutory or constitutional rights” that (ii) a reasonable person would have known about. [19]

  • The test is that the civilian’s rights must be “clearly established,” not debatable; if there is a dispute about the law, “existing precedent must have placed the statutory or constitutional question beyond debate.”[20]
  • In short, the immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[21]

The Court also says that it doesn’t want to get involved with glittering generalities to determine whether this or that asserted right is “clearly established.” Such law should not be defined at a high level of generality.”[22] Rather, it must be “particularized” to the facts of the current situation. I think that means there should be well-known and established precedents applied to similar fact patterns. If they exist, and are relevant, and show a consistent pattern of interpretation, then they pretty much define what’s “clearly established.”

To allow a more generalized analysis, say retreating to first principles, etc., would allow plaintiffs to advance all kinds of new theories. While they are new, and might be accepted someday, such theories are not “clearly established” when it matters, i.e., when whatever happened actually happened. Also, new legal theories probably aren’t the kind of thing the average trooper, etc. would know about.

So the Court wants to see precedents on topic when it looks at whether a government employee has violated a “clearly established. To do otherwise would allow plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”[23] Lawyers [and politicians] like to do that kind of thing, but it looks like the courts won’t let them in these cases.

Conclusion

So have I answered your question about how and when law enforcement may be held responsible when they make mistakes in policing your area? When they shoot somebody, for example? I’m afraid not. All I can say is, when you read a story about that kind of thing, you need to ask yourself, or the person reporting it, what law [or Constitutional provision] was violated, and is it “clearly established” in some specific way? And (ii) do the law enforcement types involved look plainly incompetent or willfully violent?

And what about you, as a citizen? What if you defend yourself and shoot somebody? Well, unlike law enforcement, you don’t have any immunity, absolute or qualified. So even if you’re innocent, you’ll probably have to put up with a lengthy [and expensive] legal proceeding. That’s better than being dead, I suppose; but it’s not good.

You don’t like my answers? I told you that you wouldn’t.

 


 

[1] Michio Kaku is a famous theoretical physicist. He has a very nice website at http://mkaku.org/ .The quote is from Brainy Quote at: https://www.brainyquote.com/quotes/keywords/bang.html

[2] G. Sallust is our disreputable founder, who gives orders even when he’s not here.

[3] Wikipedia has an article on this, at https://en.wikipedia.org/wiki/Right_of_self-defense. If you want better information, you might check with the NRA or possibly with your local sheriff, etc.

[4] See The Siren, 74 U.S. (7 Wall.) 152, 154 (1808):  “[i]t is a familiar doctrine of common law that a sovereign cannot be sued in his own court without his consent.”

[5] Thanks to the Cornell Law School, Legal Information Institute for this quote. It’s borrowed from their free online Legal Dictionary and Encyclopedia (“Wex”), available at https://www.law.cornell.edu/wex/Sovereign_immunity

[6] See U.S. Constitution, 11th Amendment, available from the National Archives at https://www.archives.gov/founding-docs/amendments-11-27 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

[7] That’s under the Federal Tort Claims Act, 28 U.S.C. Ch. 171 & §1346(b). If you want to know why there’s a Federal Tort Claims Act, take a look at a case that deals with the catastrophic 1947 fertilizer explosions in Texas City, TX. See Dalehite v. United States, 346 U.S. 15 (1953).

[8] Again we take our definition from Cornell’s “Wex” definitions, this time from https://www.law.cornell.edu/wex/tort :”A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.”

[9] See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1826)

[10] See Yaselli v. Goff, 12 F.2d 396, aff’d per curiam, 275 U.S. 503 (1927)

[11] See Spalding v. Vilas, 161 U. S. 483 (1896)

[12] See Barr v. Matteo, 360 U.S. 564 (1959). You can find a good copy of this decision at https://supreme.justia.com/cases/federal/us/360/564/case.htm  but, of course, you should use only the original if you’re filing legal papers.

[13] Id. at p. 571.

[14] We use the National Archives as out source for the wording of those documents. It’s accurate and free. You can find the 4th Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript .

[15] See Bivens v. Six Unknown Named Agents, 405 U.S. 388 (1971).

[16] See Ashcroft v. al-Kidd, 563 U.S. 731 (2011). We wrote a blog on this case 5 or 6 years ago. See the blog of 09/09/2011, Ashcroft v. al-Kidd, at http://elementalzoo.typepad.com/elemental-zoo/

[17] The Court reached this conclusion in part because of the way al-Kidd pled his case. He didn’t challenge the warrant issued to detain him. “The Government needs only to make an objective case, under the statute, for an arrest warrant. If the warrant was properly issued, by definition it had met that obligation. The Government’s ‘subjective intent’ was irrelevant and a non-issue.”

[18] See Pauly at per curiam, p. 6 (citing Pearson v. Callahan, 555 U. S. 223, 231 (2009)).

[19] See White v. Pauly, 580 U.S. ___ (2017) (per curiam), a slip opinion currently available from the Court at https://www.supremecourt.gov/opinions/16pdf/16-67_2c8f.pdf . The slip opinion will be cited as Pauly at ___; page references will be to the portion of the opinion cited, i.e., to per curiam at __, or Ginsburg at __. See Pauly at per curiam, p. 6. “Qualified immunity attaches when an official’s conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’’ (citation omitted).

[20] See Pauly at per curiam, p. 6.

[21] Id.

[22] See Pauly at per curiam, p. 6, citing Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011)

[23] See Pauly at per curiam, p. 6, citing Anderson v. Creighton, 483 U. S. 635, 639 (1987).

 

I’m sorry, folks; I know that it’s only April, and we promised to give Jeremy Bentham a rest, but he’s relevant again. Those cursed primaries have made him so. This time we need to talk about another of Bentham’s great insights, i.e., the one about vague generalities and how politicians use them to befuddle the public. Politicians do that, of course, to disguise their real meaning, by masking it with words that can mean any one or more of several different things.[1] “To find the only word that will suit his purpose,” says Bentham, “the defender of corruption is obliged to make an ascent on the scale of generalization, to soar into the region of vague generalities,” until he arrives at one that is suitably confusing.[2] If people don’t catch on to the trick, to the fact that the statement is ambiguous, “the consequence is error and deception.” [3]

Besides being confusing, such generalities also can bring positive or negative associations with them. If a politician used words like “industry, honor, piety, generosity, gratitude” and so forth, at least in Bentham’s day, those terms were considered positive. Bentham called them eulogistic or laudatory.[4] On the other hand, negative words, like “lust, avarice, luxury, covetousness, prodigality” were negative, i.e., dyslogistic or vituperative.

So let’s marry up these two ideas – vague generalities combined with eulogistic or dyslogistic associations – and bring them down to today. Do we have any examples from the campaigns to head the Republican and Democrat tickets this November? Oh, sure, plenty: but let me suggest two, purely as examples.

  • Ted Cruz says, over and over, that his purpose in life is to protect the U.S. Constitution. That sounds pretty eulogistic, doesn’t it? Most people have a soft spot in their hearts for the Constitution. But, of course, nothing is quite that simple. How about Article II, which on its face seems to make Ted Cruz ineligible to be President? One has to be born in this country to be its President. Will Cruz protect that? How about Supreme Court rulings on various hot button issues? After all, the Supreme Court is the final authority on matters of Constitutional interpretation. Will Cruz enforce the Court’s decisions on same sex marriage, abortion rights, and things of that nature? Or will his support be limited only to Second Amendment issues?
  • And speaking of gun control, Democrats pretty much are in favor of that. They really want to cut back on “gun violence,” which has a dyslogistic connotation. But really, what are the gun controllers talking about? Do they want to cut back on guns used in legitimate self-defense, or by police to enforce the law, or by the military in war? How about guns used by crooks to perpetrate crimes? We have plenty of laws about that. Do they want more, or longer sentences? How about guns used in suicide? More and more countries seem to favor legalizing that. Why discriminate if the person who wants to kill himself uses a gun? And, by the way, who should authorize a suicide? Only the Government?

And so you see, both positions leave lots of things undiscussed. They cry out for what Bentham calls “close reasoning” about specific issues and subsets thereof, not for mindless prattle and vague assertions [5]

Vague generalities of the eulogistic variety, often called glittering generalities[6], are important tools for subduing enemy populations in wartime. You may think I’m stretching Bentham a bit here, but really, I have proof. Propaganda is an important part of any war, at least the ones we fight, and our military, following its usual inclination, fully documents its approach to such matters.  Or at least it did so in the not too distant past.

I’m thinking, of course, of Army Field Manual 33-1, Psychological Operations, which although rescinded, remains available from reputable sources, such as the Federation of American Scientists.[7] The Freedom of Information Act[8] is a wonderful thing, isn’t it? Without it, think of all the interesting things that might have disappeared from our libraries and archives! Anyway, in case you didn’t know, the acronym for Psychological Operations is PSYOPS, and Appendix I to the Field Manual details some of the more common techniques used to bamboozle an enemy. Among these are, guess what? Glittering generalities![9]

The Field Manual says:

Glittering Generalities. Glittering Generalities are intensely emotionally appealing words so closely associated with highly valued concepts and beliefs that they carry conviction without supporting information or reason. They appeal to such emotions as love of country, home; desire for peace, freedom, glory, honor, etc. They ask for approval without examination of the reason. Though the words and phrases are vague and suggest different things to different people, their connotation is always favorable: “The concepts and programs of the propagandist are always good, desirable, [and] virtuous.”

Generalities may gain or lose effectiveness with changes of conditions. They must, therefore, be responsive to current conditions. Phrases which called up pleasant associations at one time may evoke unpleasant or unfavorable connotations at another, particularly if their frame of reference has been altered.[10]

So whenever a politician lays a shiny, new generality on you, bear in mind that he’s not treating you like a friend. He doesn’t want questions and he doesn’t want to educate. He just wants you to applaud and do what you’re told. You’re the enemy, and he’s the PSYOPS technician. If the politician carries on, for example, about our matchless Constitution, the only proper response on your part is that it has some good points, and some bad ones, and may need reform.[11] Leave your blanket endorsements at home.

And above all, when someone offers you a shiny new generality to admire, remember the old proverb: All that glitters is not gold.[12] In politics, that’s always the case.

[1] Id.at Chapter III, Vague Generalities, at p. 230: “Vague generalities comprehend a numerous class of fallacies, resorted to by those who, in preference to the most particular and determinate terms and expressions which the nature of the case in question admits of, employ others more general and indeterminate.”

[2] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at Chapter VIII, Observation of the seven preceding Fallacies, p. 287. Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.

[3] Id. at 287 – 288. “When of two terms, viz. a generic term, and a specific term included under it, the specific term alone is proper … ; the generic term, if substituted to it, is ambiguous, and of the ambiguity, if the effect of it be not perceived, the consequence is error and deception.”

[4] See Political Fallacies at Chapter I, Fallacies of Confusion, p. 214.

[5] See Political Fallacies at p. 288: “In proportion as a man’s mode of reasoning is close … for the designation of every object which he has occasion to bring to view, he employs in preference the most particular expression that he can find: that which is best adapted to the propose of bringing to view [everything] which is its object to bring to view, as clear as possible from [everything] which the purpose does not require to be brought, and which in consequence it is his endeavor to avoid bringing to view.”

[6] Wikipedia, for one, calls them that. See the Wikipedia entry on Glittering Generality at https://en.wikipedia.org/wiki/Glittering_generality

[7] See Army Field Manual 33-1, Psychological Operations, (31 August 1979), and especially Appendix I, PSYOP Techniques. Henceforth the Field Manual will be cited as AFM 33-1 at __. It’s available at https://fas.org/irp/doddir/army/fm33-1.pdf

[8] If you want to know about the Freedom of Information Act, start with FOIA.gov, at http://www.foia.gov/ .

[9] See AFM 33-1 at Appendix I, PSYOP Techniques, p. I-1, I-2. AFM 33-1 was replaced by Army Field Manual 3- 05.301, Psychological Operations, Tactics, Techniques and Procedures (December 2003). It’s not nearly so interesting. Paragraphs 6-59 through 6-68 deal with the review and approval of PSYOPS products used in foreign countries. These, of course, must be adapted to their target audiences, so great attention is paid to translating and adapting them to the target population’s cultural sensitivities. The book is process-oriented, i.e., focused on having the appropriate people review and approve the materials that will be used. AFM 3-05.301 also is available from The Federation of American Scientists, at https://fas.org/irp/doddir/army/fm3-05-301.pdf

[10] Id.

[11] See Political Fallacies at p. 236-237. Actually Bentham was more extreme than that with regard to the English Constitution. He said: “The constitution has some good points; it has some bad ones: it gives facility and, until reform – radical reform shall have been accomplished, security and continual increase to waste, depredation, oppression and corruption in every department, and in every variety of shape.” That’s not exactly a blanket endorsement, is it?

[12] That’s a proverb from the early 13th Century, according to the Oxford Dictionary of Quotations (6th Edition, 2004) at Proverbs, p. 614, n. 17.

[This is Fred. I had a note from G the other day, short and to the point. “The idiots are out again,” he said, “in full force. The President has nominated a replacement for Justice Scalia, who recently died, and while the Democrats like the replacement, I can see why the Republicans don’t. After all, Scalia was a prominent Conservative, much treasured on the Right. They probably think it’s better to have a deadlocked court than an impure, moderate replacement. Please get with Larry, and try to say something intelligent about the matter.” Not exactly a graceful invitation, but nevertheless compelling; so I called Larry and here’s the result. By the way, Larry’s our legal consultant.]

Actually, I’m your retired legal consultant, as I’ve said before. Nevertheless, occasionally I have ideas I can share, for free, and that’s the case right now. First let me say that eight judges do not automatically lead to a deadlocked court. Granted that’s an even number, and the conventional wisdom is that there are 4 liberals and 4 conservatives on the bench, but liberals and conservatives don’t always vote as blocs; they are adults, after all, and can make up their own minds on individual cases. I know that shocks those of you who believe the popular media, but it’s true. Just look at the recent decision on “marriage equality,”[1] the case that ruled same sex couples have a fundamental right to marry guaranteed by the 14th Amendment to the U.S. Constitution. That was a 5-4 opinion, and was possible in spite of Justice Scalia’s best efforts, only because Justice Kennedy, a Reagan appointee[2], voted with the liberals, not the conservatives. Today, now that Justice Scalia is out of the picture, the same case probably would be decided the same way by an 8 member court, but by a 5-3 vote; the court would not be deadlocked.

Most politicians – and media types – seem to believe that judges simply are a different kind of legislator; that judges vote, one way or another, based on political pressures, and change their votes as the winds blow; or, alternatively, never change because they are ideologues. So, why not change the law by appointing different judges? That can be a lot easier than passing new laws or, heaven forbid, amending the Constitution. Appoint enough new judges and the legal will become illegal, or the constitutional unconstitutional, or vice-versa, but without the trouble and inconvenience of legislating.

That’s an easy thing to say, but it’s much more difficult to prove. You see, courts tend to follow their prior decisions, no matter who the members are.[3] This is especially true in the Supreme Court. There’s even a name for this; it’s called the doctrine of stare decisis, which is Latin for something like “let the decision stand.”[4] According to one source, staying consistent with prior cases is thought to (i) promote “the evenhanded, predictable, and consistent development of legal principles,” (ii) foster “reliance on judicial decisions,” and (iii) contribute “to the actual and perceived integrity of the judicial process.” [5] The Supreme Court will defer to its previous decisions even if their soundness is in doubt, in large part because it doesn’t want to continuously re-litigate decided issues and accepted doctrines. Moreover, predictable results help to clarify the public’s rights.[6] Unpredictable results do the opposite.

No doubt you think this is all very interesting but wonder, “how does it relate to the current dispute, i.e. to filling the Scalia vacancy? Well, we’ll get to that next, and to guns as well.

Initial Republican Objections

You remember the consternation, and gossip, that erupted when Justice Scalia died. Who will the President appoint to replace him? This is in an election year. Every nominee will be opposed by somebody, and the opposition research will be fierce; character assassination is possible, from both the left and the right. Will we have a set of big, juicy hearings right before the election? Will there be scandal? Demonstrations? Will there be a political circus? What will the Senate do?

At least, we asked those kinds of questions here at Elemental Zoo Two. And we did get an answer, of sorts. Sensing danger Senate Republicans pointed to the obvious – that this is an election year – and said they would not consider any nominations made by President Obama. The American people are choosing their next president, and their next president should nominate Justice Scalia’s replacement.

Well, of course, the President did nominate someone; he has a right – or possibly a duty – to do that.[7] He picked Merrick Garland, who I, personally, don’t know much about. But that doesn’t matter, because other people, including in the NRA, say they do, and they make the news.

The NRA’s Objection (March 18)

On March 18, in an opinion piece in the Washington Post[8], the NRA injected itself, and the 2nd Amendment into the debate about Judge Garland. The NRA said that the question of whether individuals could own firearms in their homes for self-defense was settled only in 2008, with a 5 to 4 opinion written by Justice Scalia. Citizens have that right. The case was District of Columbia v. Heller.[9] In a 2010 decision, McDonald v. Chicago,[10] the Heller ruling was applied to the states as well.  While Justice Scalia didn’t write the 2010 opinion, he joined in it, and because the decision was another 5 to 4, his vote was critical.

The NRA argued that, with Scalia’s death, “there is no longer a majority of support for Heller and McDonald among the justices. Four justices believe law-abiding Americans have the right to own a gun for self-defense, including handguns. Four justices do not.” President Obama’s prior two picks for the Court, said the NRA, “oppose our fundamental individual right to own firearms safely and responsibly” [,] and it expects nothing different from Merrick Garland.[11] So Judge Garland, or any nominee of the President’s, ought to be rejected.

The McConnell Opposition (March 20, 2016)

Shortly thereafter Mitch McConnell, the Senate majority leader, gave an interview to Fox News about the Garland nomination. “I can’t imagine that a Republican majority in the United States Senate would want to confirm … a nominee opposed by the National Rifle Association, [and] the National Federation of Independent Business that represents small businesses,” he said. He also didn’t think that Senate Republicans, before or after the election, “would want to confirm a judge that would move the court dramatically to the left…,” [12] which apparently he thinks Judge Garland would do.

In any case, there will be no action on Judge Garland’s nomination. “The principle is the same. Whether it’s before the election or after the election. The principle is the American people are choosing their next president, and their next president should pick this Supreme Court nominee.”[13]

Caetano v. Massachusetts (March 21)

Now let’s take a look at a brand new gun rights case, Caetano v. Massachusetts[14], decided the next day. We’re not going to take a deep look, because it’s very brief. Also the main opinion is styled per curiam – an opinion of the court – which means that it’s not signed.  It may[15] or may not[16] be unanimous, but with a court of only 8 judges, at least 5 must have agreed with it, and up to 3 may have disagreed.

Jaime Caetano had an abusive boyfriend who put her in the hospital on at least one occasion. “She obtained multiple restraining orders against her abuser, but they proved futile.” So when a friend offered her a stun gun ‘for self-defense against him,’ she accepted the weapon. Then one night, after leaving work,

Caetano found her ex-boyfriend “waiting for [her] outside.”… He “started screaming” that she was “not gonna [expletive deleted] work at this place” anymore because she “should be home with the kids” they had together…. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” … The gambit worked. The ex-boyfriend “got scared and he left [her] alone.”[17]

Sounds like a good result, doesn’t it? Everybody went home and nobody was hurt. Unfortunately in Massachusetts stun guns were illegal, and the mere possession of one was a crime. Caetano was prosecuted; her case went up the Massachusetts judicial system to the top court in that state, where she lost; the court ruled that the Massachusetts prohibition was consistent with the U.S. Constitution, including the 2nd Amendment.

On review, the U.S. Supreme Court disagreed. It said:

  • We’ve been here before. “The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,’ District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this ‘[2nd] Amendment right is fully applicable to the States,’ McDonald v. Chicago, 561 U. S. 742, 750 (2010).”[18]
  • Massachusetts says that stun guns were not known to the Founders when the Second Amendment was passed, so they are not protected by it. That’s wrong. Heller ruled that all bearable arms are protected, “even those that were not in existence at the time of the founding.”[19]
  • The Massachusetts court also examined whether stun guns are “dangerous per se at common law and unusual;” if so, Heller would permit them to be limited. It then determined that stun guns are indeed unusual because are “a thoroughly modern invention.” In other words, they are “unusual” because they didn’t exist at the time the 2nd Amendment was enacted. But again that reasoning is inconsistent with Heller. Heller ruled that bearable arms are protected even if “they were not in existence at the time of the founding.”[20]
  • Finally, “the [Massachusetts] court used ‘a contemporary lens’ [to find] ‘nothing in the record to suggest that [stun guns] are readily adaptable to use in the military….’ But Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’”[21]

Three strikes and Massachusetts was out. “The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”[22]

So what does this mean? Caetano basically reaffirms District of Columbia v. Heller, and McDonald. However, for that to have happened one or more of the “liberal” justices on the Supreme Court must have crossed over to the “conservative” side to form a majority. Now why would a liberal judge or liberal judges do such a thing? Well, perhaps on the theory of stare decisis. Established rights shouldn’t be revoked simply because there might be new members on the court.

Conclusion                                                                                                                                  

[Thanks for your hard work, Larry; you certainly covered a lot of ground in a short space. But I don’t think what you said will satisfy the NRA. After all, there’s no guaranty that the Court will continue to uphold Heller and McDonald once Judge Gardner, or someone like him, gets on board. Can’t you be a little more positive, to make them happy?]

I don’t do guaranties. In my business, anybody who does probably is a shyster. I can make predictions, based on probabilities, but – just like in war – all plans go out the window once the first shot is fired. Really, when litigation starts it can be really hard to know how things will turn out. Facts change, the law moves around, the forum might change and so forth. A friend of mine once said, in litigation there’s a 30% chance that anything might happen before it’s done.

Judge Garner may be perfectly fine from the NRA’s standpoint, vis-à-vis the 2nd Amendment, if he’s appointed to the Supreme Court; or his opinions may not matter, if the rest of the Court in fact has realigned in favor of Heller and McDonald. I can’t guaranty either result, but by the same token, I can’t prove that they won’t happen. It’s all guesswork right now.

If you want my opinion, I think Judge Garner’s opposition should take another look at their crystal ball; polish it and check it for cracks before they get too excited about this business. Perhaps they should spend their political capital elsewhere.

[1] See Obergefell v. Hodges, 576 U.S. ___ (2015), available as a slip opinion from the U.S. Supreme Court’s website.

[2] For the biographical details, check out Wikipedia at https://en.wikipedia.org/wiki/Anthony_Kennedy

[3] See, e.g., the Wikipedia entry on precedent, available at https://en.wikipedia.org/wiki/Precedent 

[4] Id. Wikipedia says the words come from the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”

[5] One of our go-to sites for matters legal is the LII website hosted by the Cornell Law School. Among other things, you can pick up definitions of legal terms you otherwise might find only in a law dictionary. Don’t rely on it if you’re writing a brief, etc.; you should go to the original case law instead; but I think this is a perfectly good source for a blog. The Cornell service is available, on line, for free! See, e.g., Cornell Law School, Wex Toolbox, Stare decisis, available at https://www.law.cornell.edu/wex/stare_decisis

[6] Id.

[7] Article II, Section 2, Clause 2 says: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …  Judges of the supreme Court….”   For an authoritative version the U.S. Constitution, and its Amendments, check out the National Archives. For the Constitution alone, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here.

[8] See Washington Post, Cox, NRA: Why we oppose Merrick Garland’s Supreme Court nomination (March 18, 2016),

available at https://www.washingtonpost.com/opinions/nra-why-we-oppose-merrick-garlands-supreme-court-nomination/2016/03/18/1ea4c9d0-ec5b-11e5-b0fd-073d5930a7b7_story.html

[9] See District of Columbia v. Heller, 554 U.S. 570 (2008). You can get volume 554 directly from the Supreme Court as a pdf file. Just go to the web site, at http://www.supremecourt.gov/default.aspx  click on opinions, then on bound volumes. Not all Supreme Court opinions are available this way; the newer opinions have yet to be bound into volumes; and many of the older volumes have yet to be converted to pdf files.  But volume 554 is available as a pdf download.

[10] See McDonald v. Chicago 561 U.S. 742 (2010). Volume 561 also is available from the Court as a pdf download.

[11] See NRA article cited at n. 6.

[12] This quote is taken [and edited somewhat] from an article in the New York Times. See The New York Times, Fandos, Garland Shouldn’t Be Considered after Election, McConnell Says (March 20, 2016), available at http://www.nytimes.com/2016/03/21/us/politics/merrick-garland-supreme-court-mitch-mcconnell.html?_r=0

[13] Id.

[14] See Caetano v. Massachusetts, 577 U.S. ___ (2016), available from the Supreme Court as a “slip opinion” at  http://www.supremecourt.gov/opinions/slipopinion/15 Hereafter this will be cited as Caetano slip opinion at __ (per curiam) or Caetano slip opinion at __ (concurring).

[15] The Oxford Dictionaries describe a per curiam decision as a “decision of a court in unanimous agreement.” You can find the definition at http://www.oxforddictionaries.com/definition/american_english/per-curiam

[16] See, e.g., Cornell Law School, Wex Toolbox, per curiam, available at https://www.law.cornell.edu/wex/per_curiam  The Toolbox says: “Per curiam” decisions are given that label by the Court itself and tend to be short. Usually, though not always, they deal with issues the Court views as relatively non-controversial … However, they are not necessarily unanimous. Indeed, some per curiam decisions are accompanied by dissenting opinions.” [Citing Bush v. Gore, 531 US 98 (2000)]. 

[17] See Caetano slip opinion at p. 1 (concurring).

[18] See Caetano slip opinion at p. 1 (per curiam)

[19] See Caetano slip opinion at p. 1 (per curiam)

[20] Id.

[21] See Caetano slip opinion at p. 2 (per curiam)

[22] See Caetano slip opinion at p. 2 (per curiam)

Don’t be vague, ask for Haig.

Haig Whisky Advertisement[1]

[Did you know that a law might be so poorly written that the Supreme Court would strike it down for that reason alone? It doesn’t happen often, but it did in the last term. That makes the case noteworthy, but there’s more. The subject was firearms, always a crowd-pleaser; and the issue was criminal sentencing, too harsh or too lenient? But the real question involved the U.S. Constitution, and in deciding it the Court reversed some of its earlier decisions. And, last but not least, the majority opinion was written by Justice Scalia. I’m sure you’ve all heard about him. He’s not known popularly as a consensus-builder and was a notable dissenter last year. But this time he managed to get five other justices to agree on an opinion and two more with his result.

This all sounds like a good story so, when Larry called the other day to suggest we do a blog on it, I agreed. Instantly. Take it away, Larry!]

Thanks, G. Let’s start at the beginning. The case is Johnson v. United States,[2] and the facts are relatively simple. Mr. Johnson had pleaded guilty to being a felon in possession of a firearm,[3] so he was subject to some jail time.[4] The Government, citing the Armed Career Criminal Act[5] [the “ACCA”], argued that the ordinary sentence for that crime should be enhanced in his case. The ACCA says that anyone convicted of three prior “violent felonies” should be sentenced for a minimum of 15 years for the fourth offense, violent or not.[6] The District Court agreed and imposed the 15-year sentence. The Eighth Circuit affirmed.

And what’s a “violent felony”? Well, 18 U.S.C. §924(e)(2) [a part of the ACCA] defines it as a

… crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another …[7]

[OK, I understand this part. If defendant has three convictions involving “violent felonies,” and racks up another one, this time under the Federal Firearms laws,[8] he [or she] gets an enhanced sentence for the fourth violation. That seems clear enough. What was Mr. Johnson’s complaint?

Well, one of his earlier convictions was for possessing a short-barreled shotgun, a big no-no in Minnesota, but there’s no evidence that he used the gun violently. That didn’t matter to the Government. The Government said mere ownership of the shotgun was enough. Section 924(e)(2)(ii) defines a violent felony as one that “… otherwise involves conduct that presents a serious potential risk of physical injury to another.” No actual violence is required; only a “serious potential risk” of physical injury. Once you have that, the felony is “violent” by definition.

[Well, “serious potential risk” does sound a bit loose. In fact, in Johnson’s situation it could have meant practically anything. There are people who think all guns are risky. They’re evil powers in themselves and shouldn’t be allowed loose in our country. So why not say if someone owns a gun, he or she is obviously under an evil influence, and is always at “serious potential risk” of doing something bad?]

Perhaps. But I see an even bigger problem. To make the sentencing decision, the trial court must analyze prior convictions as well as the case before it. How else would the judge know whether the priors involved a “serious potential risk?” I’m sure that can be a great bother, and relevant documents and testimony simply may not be available. How does a trial judge the risk of past acts tried in a different court?

[How indeed? But as I said before, “serious potential risk” is a pretty spongy term. The defendant also has a problem. How does he, in the past, know what some future prosecutor or judge might decide about an offense years after the fact and in an unrelated sentencing hearing?”]

This is getting confusing, but I think I get your point. My answer is, “[A]y, there’s the rub.”[9] You see, we’re supposed to be very picky in this country about our criminal statutes. They need to be clear enough to tell the public what it shouldn’t do. Why? Because the 5th Amendment to our Constitution[10] requires it.

The Fifth Amendment provides that “[n]o person shall … be deprived of life, liberty, or property, without due process of law. Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes or so standardless that it invites arbitrary enforcement.[11]

That is from Justice Scalia’s majority opinion in Johnson v. United States. No doubt most of you can guess where it’s leading.

[He’s going to overturn the “enhanced sentencing” levied on Johnson?]

Yes. The main issue was whether the ACCA, or the part of it that deals with enhanced sentences, clearly told the public what was forbidden or required. It’s not enough that lawyers might later argue about what it means. What counts is whether the public is on prior notice of the acts it should avoid. The majority concluded that this was not the case. “We are convinced,” the majority said, “that the indeterminacy of the wide-ranging inquiry required … both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing the defendant’s sentence under [§ 924 (e) (2) (ii)] denies due process of law.”[12]

So the Supreme Court reversed the lower court and essentially struck the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” from the statute.[13]

The two concurring justices, Thomas and Kennedy, didn’t accept the due process argument, but thought the lower court should be overruled anyway. They said the ACCA had been applied incorrectly in Johnson’s case, and there was ample precedent to support that. “Under ordinary principles of statutory interpretation, the crime of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under ACCA.”[14] But they didn’t agree that any part of ACCA was unconstitutionally vague. Indeed, Justice Thomas challenged the “vagueness doctrine” itself as “a judicially created doctrine lacking any basis in the Constitution.”[15]

[I notice you’ve skipped over the rather large amount of detail about how the Court interpreted the ACCA in prior cases. Why is that?]

Because we have limited space and time. Also, now that the Court has struck down the language at issue, those cases probably aren’t relevant to the future. However, they are interesting, and anybody who wants to read them should do so.

[Apologies to Justice Thomas, but I like the idea that criminal statutes ought to be clear enough for ordinary people to understand. Folks shouldn’t have to wait for the prosecutor to tell them whether they’re in trouble.]

Yes, and it’s a novel idea: Congress writing laws that people, not just lawyers can understand. Who knows where it will all end if Republicans and Democrats take this seriously? Corporate America will shudder. Congressional and private lobbying staff will have to be retrained. The untrainable may lose their jobs. Thousands could go! Think of the costs! What would happen to the D.C. real estate market? O tempora, O mores![16]

[1] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at p. 7, Advertising slogans, n. 17. Henceforth this Dictionary will be cited as ODQ at __. The slogan is old, dating from around 1936.

[2] Johnson v. United States, 576 U.S. ___ (2015) (slip opinion, June 26, 2015). Justice Scalia wrote the majority opinion; Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan joined it as well. Justices Kennedy and Thomas concurred in the judgment. Justice Alito dissented. Since we only have the slip opinion, and the majority, concurring and dissenting opinions are separately numbered, we’ll cite them as Johnson, majority opinion (Scalia) at __, concurring opinion (Kennedy) at __, concurring opinion (Thomas) at __, or dissent (Alito) at __.

[3] See 18 U.S.C. §922(g).

[4] Some have argued that I should have said “prison” rather than “jail.” I checked the Compact Oxford English Dictionary (3rd Edition, 2005), and the two words seem to mean pretty much the same thing. A “prison” is “a building in which criminals or people awaiting trial are confined;” while a “jail” is “a place for holding people accused or convicted of a crime.”

[5] See 18 U.S.C. §924.

[6] See 18 U.S.C. §924(e)(1). “In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).”

[7] See 18 U.S.C. §924)(e)(2). Did I mention that you can download the U.S. Code for free from the Government Printing Office? If you’re looking to find this text, you can get it directly from the Government Printing Office at http://www.gpo.gov/fdsys/granule/USCODE-2011-title18/USCODE-2011-title18-partI-chap44-sec924/content-detail.html

[8] By that I mean, under Chapter 44 of Title 18, U.S. Code.

[9] See ODQ at p. 686, William Shakespeare, n. 9. The quote is from a long soliloquy in Hamlet, Act 3, Scene 1.

[10] You remember that, don’t you? The 5th Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

[11] See Johnson, majority opinion (Scalia) at 3. Citations omitted.

[12] See Johnson, majority opinion (Scalia) at 5.

[13] See Johnson, majority opinion (Scalia) at 15. “We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process….Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.”

[14] See Johnson, concurring opinion (Thomas) at 2 Justice Kennedy agreed with this part [i.e., Part I] of the Thomas opinion.

[15] See Johnson, concurring opinion (Thomas) at 2 The entire discussion, at p. 5-19 is fascinating, if you like that sort of thing.

[16] That’s from Cicero, the Roman orator. It means, roughly, “Oh the times, Oh the customs!” It’s in the ODQ at Cicero, p. 223, n. 16, but I got it initially from my memory. It’s one of the few quotes I remember, because it’s short.

If you don’t make mistakes you don’t make anything.

Old Proverb[1]

 [Our critics have been asleep lately, but that last blog woke some of them up. Here are a few of their better comments.]

Hey! Mr. Sallust, are you illiterate? In your blog you say “low and behold,” half the cops indicted over in the Freddie Gray matter are white, and the other half are black. I’ve heard the expression “Lo” and behold!It’s in my Bible. But what in the world does “Low” and behold mean? Cattle “low,” I guess, but why is it important to look at noisy cows? Or are you going to use a derrick to lower cows onto a stage, just to startle us? Behold!

Angry reader, you’re spot on! The correct word is “Lo,” and we’ve changed the post. Obviously we don’t know how to spell. But our intentions were good. We use old-timey expressions like “lo and behold!” to impress the reader. If we had known you were out there probably we would have just said “Wow! Look at that!” and moved on.

We got the idea from a hymn by Mr. Charles Wesley, who opened a description of the Almighty with “Lo! He comes with clouds descending …”[2] Admittedly that’s overkill if the subject isn’t God, but rather crime in Baltimore.

You say that the violent crime is decreasing, but use statistics that end with 2010. Don’t you have anything more recent?

Yes we do. The FBI compiles crime statistics, and its most recent information can be found at http://www.fbi.gov/stats-services/crimestats . Currently the FBI reports that:

In 2013, an estimated 1,163,146 violent crimes occurred nationwide, a decrease of 4.4 percent from the 2012 estimate.

When considering 5- and 10-year trends, the 2013 estimated violent crime total was 12.3 percent below the 2009 level and 14.5 percent below the 2004 level.

See FBI, Crime in the United States 2013, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/violent-crime/violent-crime-topic-page/violentcrimemain_final

Your statistics on gun ownership seem a bit dated as well. Do you have anything more recent?

Yes. One can roughly track gun sales by counting the number of background checks performed in any given year. One successful background check more or less equals one gun sale. The National Instant Criminal Background System [NICS] Operations Report for 2014 states that, in 2014, it saw 20,968,547 such transactions. Of those, approximately 91 thousand [less than half of 1%] were denied.

The NICS also reports that, from its inception in 1998 to December 31, 2014, it processed a total of 202,536,522 background checks. That translates into a lot of guns bought over 16 years.

You can get the 2014 Report by going to the FBI website, at http://www.fbi.gov/about-us/cjis/nics/nics , and searching the NICS links for Reports and Statistics, or you can simply click here: http://www.fbi.gov/about-us/cjis/nics/reports/2014-operations-report

Your discussion of Outlaw Motorcycle Gangs [OMGs] was interesting, but you don’t do a very good job of sourcing this material. Are they really trying to recruit within our military industrial complex? You say yes, and your primary source is a BATF report from 2014; but you seem to have found that in the cloud, not from any official source. These days anybody can make a document that looks official. So how did you authenticate the [alleged] BATF Report.?

Point taken. Is the BATF report we cite a forgery, or is it real? Some in the press paraphrase it, so obviously they think it’s genuine. But that’s not enough for us. We should be able to find it on a Government website.

Well, so far we haven’t, but our failure’s not complete.We haven’t found that particular report, but it’s clear that the U.S. Department of Justice is very interested in gang activity,[3] including gang efforts to recruit folks in law enforcement and our military. The FBI’s 2011 National Gang Threat Assessment reported that “gang members in at least 72 jurisdictions … compromised or corrupted judicial, law enforcement, or correctional staff” in the prior three years. [4]

Moreover, people with military training can be especially useful to gangs,Gang recruitment of active duty military personnel constitutes a significant criminal threat to the US military.

Members of nearly every major street gang, as well as some prison gangs and OMGs, have been reported on both domestic and international military installations, according to NGIC analysis and multiple law enforcement reporting. Through transfers and deployments, military-affiliated gang members expand their culture and operations to new regions nationwide and worldwide, undermining security and law enforcement efforts to combat crime. Gang members with military training pose a unique threat to law enforcement personnel because of their distinctive weapons and combat training skills and their ability to transfer these skills to fellow gang members.

See FBI, 2011 National Gang Threat Assessment – Emerging Trends, available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment

DOJ revised and expanded on these themes in 2013. It noted that in 2012 DOD took steps to curb gang activity within the active duty military. Basically active duty service people were told they (a) must not “actively advocate supremacist, extremist, or criminal gang doctrine [or] ideology,” and (b) must “reject active participation in criminal gangs and in other organizations that advocate” such views or causes. Gang colors or clothing, tattoos or other body markings also were forbidden. [5] The operative DoD Instruction is 1325.06 (Nov. 27, 2009, revised Feb. 22, 2012). Check out paragraph 8 of Enclosure 3.[6]

This all tends to confirm what we said last time about gangs and the military, but did we authenticate the BATF report we quoted? So far, no. That document doesn’t seem to exist on any Government website.

How can Frank Rizzo and Tom Wolfe sit down and talk through their problems? According to Wikipedia[7], Wolfe is still very much with us; but Rizzo died in 1990.

That’s a metaphor [8], you ninny! Of course Wolfe and Rizzo can’t talk directly together, unless perhaps Mr. Wolfe has an Ouija Board.

It’s perfectly legitimate to use metaphors, and has been since the time of the Greek philosophers. “All use metaphors in conversation, as well as proper and appropriate words.” That’s Aristotle, by the way.[9]

The point is that people who think like Rizzo or Wolfe should spend more time talking to, rather than past one another. Who knows, if that happens some liberals might agree that there’s value in self-defense; and some conservatives might accept the notion that our criminal justice “system” should to be more fair, and less oppressive. I say “some” because folks truly married to their ideologies often can’t change them, regardless of the facts.

[So there you have it. Our explanations are almost as long as the original blog. These days, that’s the way things are. Make a mistake, and the explanations can take up a lot of time.]

 

[1] See Oxford Dictionary of Quotations (6th Edition, 2003) (henceforth, ODQ at __) at Proverbs, p. 623, n. 15.

[2] See ODQ at Charles Wesley, p. 828, 829, n. 9.

[3] See USDOJ, Motorcycle Gangs, at http://www.justice.gov/criminal/ocgs/gangs/motorcycle.html .

[4] See FBI, National Gang Intelligence Center {2011), at p. 33, available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends

[5] See FBI, 2013 National Gang Report at p. 19, available at http://www.fbi.gov/stats-services/publications/national-gang-report-2013

[6] The DODI is available at http://www.dtic.mil/whs/directives/corres/pdf/132506p.pdf

[7] To find his biography on Wikipedia, just go to the Wikipedia website and search Tom Wolfe, or simply click here: http://en.wikipedia.org/wiki/Tom_Wolfe He should not be confused with the early 20th Century author, Thomas Wolfe, who was also very good.

[8] Literally, “a figure of speech in which a word or phrase is used of something to which it does not literally apply.” See Compact Oxford English Dictionary (3rd Edition, 2005) at metaphor. Here I’m alluding to a conversation between a live and a dead person, something which isn’t really possible,

[9] See ODQ at Aristotle, p. 25, n. 10.

 

A liberal is a conservative who has been arrested.

Tom Wolfe[1]

A conservative is a liberal who got mugged the night before.

Frank Rizzo[2]

OK, in case you haven’t guessed, today’s topic is law-and-order. Some people – often called Libertarians – think that we have altogether too many laws in this country. Perhaps we ought to lighten up a little bit; cut back on the things that are restricted or forbidden; and give people more room to live and enjoy their lives. This is an attractive notion, especially if you were raised back in the 1950’s, as was I. Back then just about everything connected with sex, drugs, and general entertainment was forbidden; that’s why teens had to invent rock and roll.

And why did their parents go along with that? Well, I don’t know, but I do have a suspicion. I think, deep down, the parents really knew that American society was unduly repressive; they compensated by dousing themselves with alcohol and tranquilizers; and by ignoring their kids’ deviant beliefs and behaviors. Hypocrisy was the order of the day. Where do you think the counterculture of the 1960’s came from?  It exploded out of the various closets the [decade of the] 1950’s had built for its inmates.

Anyway, that’s what I think; but what does this have to do with law and order? Well, let’s consider Tom Wolfe’s observation that a liberal is really a conservative who has been arrested. Think about it. Suppose you are [mostly] a law-abiding citizen, but the police pick you up for doing something they don’t like. The allegations may be true or untrue; in either case you’re thrown into the criminal justice “system,” with all of its complexities, pressures and attendant costs. You might even be offered a plea bargain as an easy way out. Just admit something and skip serious jail time. If you go to trial, there’s always the chance that a trier of fact, a jury or a judge, may make a mistake and convict you even though you’re innocent, if you are.

Middle class people who face this for the first time no doubt are (a) shocked that it happened to them, and (b) doubly shocked at the costs and pressures imposed by the system. So why be surprised if some of them begin to take an interest in civil liberties and, more specifically, in the rights of the accused in criminal proceedings? Don’t get me wrong!  I’m not saying that all liberals have been arrested at one time or another. It’s enough if they can simply imagine themselves in the place of the accused, and want to work to make the system more fair for everyone.

That’s the liberal bias that Tom Wolfe identified and, I think, it’s a good one to have. Anyway, you could see it in full bloom in the case of Freddie Gray, a black man who was arrested over in Baltimore and mysteriously died while in police custody. The press went wild for a time, perhaps assuming that this was just another example of a white power structure picking on poor minorities. But time passed, and people realized that Baltimore’s mayor and attorney general are black women, and its Police Commissioner is a black male[3]. Then the indictments came out and, lo and behold, three of the police indicted in the Gray matter are white, but the other three are black. [4]

So is race still the dominant factor in the case, or if not, what is? Perhaps social class? Was Freddie Gray arrested simply because he was poor and couldn’t defend himself from the system? I don’t know, and we have miles to go before we learn the truth. There will be further investigations; the DOJ has been asked to take a look at the way Baltimore polices its people; and the accused officers no doubt will be tried on the various charges levied against them. It’s too soon to tell what the result of all this might be, and this isn’t a horserace; so we’re not making predictions or placing any bets.

Now let’s talk about Frank Rizzo’s observation, and what it means today. Does a mugging, or the fear of one, really create law-and-order Conservatives?  Do people really expect a breakdown in law and order, and threats to their personal security? Well, obviously some do. While violent crime rates in this country have been decreasing for years[5], gun ownership is on the increase.[6] Why? For personal protection, I would expect.

There are plenty of reasons to worry, if you want to. We have the problem of riots. They’re back, and people get upset when they occur. And then, of course, there’s a new phenomenon – the violent home invasion. People in the gun community worry about that kind of thing, and plan for it. [7] And who’s to say they’re wrong? Such things do happen.

Just last week, for example, there was an apparent home invasion, and a quadruple murder at the Savopoulos family residence[8] in DC, not far from where the Vice President lives. Apparently the family’s home was invaded on or about May 13; Mr. Savopoulos called his office and asked an assistant to deliver $40 thousand to the residence; the assistant did so on May 14, leaving the money in a garage; then the family [and a housekeeper] were killed, and the money disappeared. One person has been apprehended, allegedly on the basis of DNA evidence found in the residence. No doubt others were involved, but they’ve yet to be found.

And if that doesn’t shake your faith in the rule of law in this country, consider also what happened down in Waco TX not too long ago. For those of you who don’t know, Outlaw Motorcycle Gangs [OMGs] are said to be key players in the distribution of drugs and weapons in this country and possibly worldwide. The police, according to one report, consider them to be little more than “heavily armed crime syndicates” although the OMGs portray themselves differently. [9]  There’s also evidence that some OMGs “continue to court active-duty military personnel and government workers, both civilians and contractors, for their knowledge, reliable income, tactical skills and dedication to a cause.”[10] How about that? Outlaw bikers with military connections! If you’re a law-and-order type, it kind of makes you feel, what? Certainly not safe.

Anyway, last week a couple of these OMGs decided to congregate together down in Waco, and the results weren’t good. Fighting broke out, shots were fired, 9 people died, and  170 were arrested. All in all it was a real melee with plenty of blood, all in family-friendly Texas.

So what does all this mean? What’s the moral of this tale? Well, a friend of mine once said, “Where you sit is often where you stand.” Back in the day this had religious connotations, [11] but today it means, simply, that people tend to assess threats, etc., based on their own particular interests.[12]That’s not going to work very well in an increasingly violent and disorganized world. Frank Rizzo and Tom Wolfe will have to sit closer together, and talk through their problems, if they’re ever going to solve anything.

That’s what I think.

 

 

[1] See Oxford Dictionary of Quotations (6th Edition, 2003) (henceforth, ODQ at __) at Tom Wolfe, p. 843, n. 20. The quote is from The Bonfire of the Vanities, a book he published in 1987. For more about Tom Wolfe, check out the Wikipedia entry on him at http://en.wikipedia.org/wiki/Tom_Wolfe .

[2] This one is harder to verify. Brainy Quote attributes it to Frank Rizzo, an American politician who died in 1991. See Brainy Quote at http://www.brainyquote.com/quotes/quotes/f/frankrizzo125560.html . Rizzo was police commissioner in Philadelphia from 1968 to 1971, and mayor from 1972 to 1980. He was quite famous in those days. For more information on Rizzo, see the Wikipedia entry on him at http://en.wikipedia.org/wiki/Frank_Rizzo .

[3] Baltimore’s Mayor is Stephanie Rawlings-Blake; its prosecutor is Marilyn Mosby; and its Police Commissioner is Anthony W. Batts.

[4] See CNN, Shoichet, Freddie Gray death: Grand jury indicts police officers (May 21, 2015) available at http://www.cnn.com/2015/05/21/us/baltimore-freddie-gray-death-officers-indicted/index.html

[5] See FBI, Criminal Justice Information Services Division, Murder Circumstances by Weapon (2010) at  http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl11.xls

[6] You can track trends gun ownership through the National Instant Criminal Background System. Its public website is at http://www.fbi.gov/about-us/cjis/nics/nics

[7] See Weapons Education, Home Invasion, Don’t Get Killed (January 11, 2015) available at https://www.youtube.com/watch?v=bXni1RWorEg

[8] See The Washington Post, Hermann & Alexander, Police suspect plot in killings (Saturday, May 23, 2015) at p. A1, A2.

[9] See The Washington Post, Madigan & Sullivan, Olive branch broken in deadly biker melee, eyewitness says (Sunday, May 24, 2015) at p. A4.

[10] See DOJ, Bureau of Alcohol, Tobacco, Firearms and Explosives, OMGs and the Military (2014), available at https://www.documentcloud.org/documents/2085684-omgs-july-2014-redacted.html

[11] See St. Luke, Ch. 14, v. 8: “When thou art bidden of any man to a wedding, sit not down in the highest room, lest a more honorable man than thou be bidden of him; And he that bade thee and him come and say to thee; Give this man place; and thou begin with shame to take the lowest room.” See also St. Luke, Ch. 14, v, 11; St. Mathew, Ch. 23, v. 12. “For whosoever exalteth himself shall be abased; and he that humbleth himself shall be exalted.” We tend to use the King James version of the Bible around here, mostly for literary reasons.

[12] See The American Economic Review, Dahl & Ransom, Does Where You Stand Depend on Where You Sit? Tithing Donations and Self-Serving Beliefs (September, 1999) at p. 703 et seq., available at    http://econweb.ucsd.edu/~gdahl/papers/self-serving-bias.pdf “Previous psychological and economic research indicates that individuals are highly inclined to skew reported beliefs to line up with selfish interests”