Sentencing Guideline 2K2.1(b)(5) (now advisory, not binding) calls on judges to substantially increase a convicted defendant's sentence where he had used or possessed a firearm "in connection with another felony offense," for instance assault or homicide. All well and good, but you'd think that this would mean, well, a felony offense, and using a firearm in self-defense wouldn't count — even if you were threatening or shooting someone in self-defense, you'd be committing a lawful act, not a "felony offense."
Not so, argues the U.S. Attorney's office for the Eastern District of Arkansas (citations omitted):
The provision [2K2.1(b)(5)] does not provide an exception in cases where a defendant may have a defense to the connected felony. The United States respectfully urges that this unambiguous language of the comment clearly precludes such a possibility.
The comment to this Guideline section explains that it is of no matter whether or not a criminal charge is ever brought or obtained against the defendant for the connected felony. As such, it reasonably follows that it is not relevant if there may be some defense to the connected felony. Either way, the § 2K2.1(b)(5) enhancement is still applicable. The plain language of the Guideline and its commentary are obviously geared towards the appellant’s conduct, not the possibility or plausibility of any defense theory that he may assert in the case should charges for the connected felony ever be brought.
This means that if you commit a crime, and in the process were also using a gun to defend yourself (or your child) against a would-be murderer, your sentence for the other crime would be enhanced — by more than half, if my calculation is right — because of your perfectly lawful, even praiseworthy, actions. In this case, Raglin's actions ultimately proved not to be valid self-defense; but the government's argument was that Raglin (and others) should have lost even if they were assaulting someone in perfectly legal self-defense.
Fortunately, the Eighth Circuit would have none of it:
This contention is without merit. The enhancement applies if the defendant used the firearm "in connection with another felony offense." When there is no prior conviction for that offense, the government must prove at sentencing (by a preponderance of the evidence) that the defendant committed it.... [T]he definition of aggravated assault expressly excludes '[a]ny person acting in self-defense or the defense of a third party.' Thus, when Raglin presented evidence arguably supporting self-defense or a justification defense to the charge of aggravated assault, the government had to negate that defense by a preponderance of the evidence for the § 2K2.1(b)(6) enhancement to apply."
Good that the Eighth Circuit at least respects self-defense rights, even if the federal prosecutors in this case did not. (The Eighth Circuit ultimately held that Raglin was not acting in legally permissible defense of self, home, or property, but it acknowledged that if Raglin had been so acting, he would not have been eligible for the enhancement.)
Thanks to How Appealing for pointing to this case.
Really, what does the prosecutor get out of torturing the law to squeeze some more time out of a conviction?
A lot of times criminal defense attorneys get lambasted in court opinions for making frivolous arguments. I wish the Government would get taken to task for doing the same thing, especially since they're supposed to be doing "justice," not just advocating for a client.
. . .
As an aside, there are a number of federal laws that make it illegal to violate the law of another country. (The Lacey Act, for example, makes it illegal to import fish from another country in violation of that country's law.) Even if you could not be prosecuted in that foreign country because, for example, the law would be held unconstitutional in that country, the Eleventh Circuit has held that you could still be prosecuted in this country. Likewise, a number of circuits have held that even if there are procedural bars to bringing the case in the foreign country (for example, the statute of limitations has run), you can still be prosecuted in this country.
Those situations are sort of similiar to this case. (Sorry, random!)
This is a tortured sentence, which seems designed to avoid any discussion of the actual fact pattern of the case. It doesn't seem intuitive to me that you necessarily enjoy the privilege of self-defense while you're engaged in committing a crime. Can a bank robber who thinks he's about to be shot down engage in "self-defense"?
At least we've seen how to get the VC commentariat engaged on the subject of criminal defendants' rights - just make it an issue of gun rights! Oh, if only Jose Padilla had thought to pack heat.
One wonders if Steve is trolling, the distinction is obvious.
You have a legitimate right to a self-defense defense regardless of whether you are a criminal. Shooting cops apprehending you is not legal, regardless of your criminal history or lack thereof.
So, if someone is attacked while Jaywalking, you contend they no longer possess the right of self-defense?
Do you no longer enjoy the right of self-defense if you own a pistol in an area that banned them, such as Washington DC? "Yes, the man was legitimately trying to kill you, but since you defended yourself with something we don't approve of, you're going to jail for murder."
What if it's someone who doesn't have the legal right to apprehend you? What if they do, but you reasonably believe they don't? My point is not to troll, but to illustrate that Prof. Volokh is being silly when he postulates a lowlife criminal engaging in the praiseworthy act of saving a child while in the very midst of committing his crime. It seems to me that all you have to do is say the magic word "self-defense" and the Pavlovian bells start ringing.
Back in the real world, what happened here isn't nearly as insidious a threat to freedom as the post would have you believe. On appeal, the defendant raised a number of arguments for the first time; specifically, he pointed to a handful of self-defense or justification statutes in his attempt to overturn the sentencing enhancement. Because he hadn't cited these statutes in the district court, the prosecution hadn't built a specific record concerning them, and didn't want the case to get sent back for further proceedings. So before making their argument that the self-defense statutes didn't apply, the prosecution took a shot at claiming that it shouldn't even matter because self-defense is irrelevant. They lost that one, but then the court agreed with them on the issue of whether the self-defense statutes applied, and so the decision below was affirmed.
In other words, the government didn't offer the theory that self-defense is irrelevant in an attempt to obtain a criminal conviction, or in an attempt to obtain a sentence enhancement, but merely in a long-shot effort to sustain a properly granted sentence enhancement in the face of a brand-new argument on appeal. Big deal.
If the alleged self-defense is not lawful, then the guideline could still be used to enhance the sentence.
So, for instance, a defendant who shot back at people he understood to be cops could get the enhancement. Similarly, someone who used the gun despite not having a reasonable belief that his or her life or safety was in danger could still get the enhancement.
What should preclude the enhancement is a successful claim of self-defense. (As for where there is imperfect self-defense (i.e., still illegal, but lighter sentence), the equitable thing to do would be not to impose the enhancement in that situation either, because it could cancel out the lessening of the sentence.)
But that's exactly what the decision holds, right?
"J. Timothy Griffin was sworn in as U.S. attorney for the Eastern District of Arkansas on Dec. 20, [2006] less than a week after his appointment prompted unusual public expressions of outrage from both of the state’s U.S. senators...Before that, Griffin was deputy director of the White House Political Affairs Office (where he served under Political Affairs Director Karl Rove), and Lincoln and Pryor both suggest that Griffin’s appointment as U.S. attorney is a reward for his service in the Bush administration."
Steve: The prosecutor made an argument about how this guideline -- which is applicable to defendants in a wide range of cases -- should be interpreted. If he had prevailed, and the Eighth Circuit had adopted his argument, this guideline would apply to a wide range of cases. If he had just made a waiver argument or some such, I wouldn't be criticizing him.
Nor is it particularly "silly" to imagine a criminal engaging in perfectly lawful self-defense. Recall that this particular defendant was prosecuted simply for being a felon in possession of a gun. That's not great behavior, but it's perfectly consistent with using a gun in self-defense (in a way that doesn't violate assault or homicide laws, because of the self-defense defense).
Say a felon possesses a gun illegally, as Raglin did. (I won't even assume that he just got the gun for imminent self-defense, which would itself be a defense to a charge of illegal possession; let's say he got it without facing any imminent threat, and is therefore guilty of being a felon in possession.) He or his child is attacked; he brandishes the gun in self-defense, or even shoots it, in self-defense. The police learn of this and prosecute Raglin for being a felon in possession. Under the prosecutor's theory, Raglin would not only be convicted (rightly) of being a felon in possession; his sentence would be enhanced because he used the gun to defend himself against criminals. That's wrong.
Again, if the prosecutor had made only a more limited argument, I might not have faulted him for it. But he urged an interpretation of the law would apply in a wide range of cases. If I'm right that this interpretation is unsound, then he merits criticism for it.
Finally, as to "the magic word 'self-defense,'" self-defense is a long-established legal right, and, as I've argued here and here, even a constitutional right. Why shouldn't people who value this right speak up when they see the government make arguments that appear to ignore or undermine this right?
Doesn't the Eighth Circuit's decision leave open the possibility that a sentencing enhancement can still be given in states that require the defendant to prove self defense by preponderance of the evidence?
GV has already addressed this, but I felt compelled to chime in to add that most of us who oppose the use of acquitted conduct at sentencing understand perfectly well the rationalization for it-- i.e., the lower standard of proof at sentencing means that an offense can be "proven" for sentencing purposes even if not established beyond a reasonable doubt for liability purposes. That doesn't make the practice any less unfair, or any less inconsistent with the apparent intent of the Sixth Amendment's right to a jury trial, which I took to be GV's point.
"Don't worry, innocence is a factor that will be taken into account at sentencing."
Is it really wrong?
When society forbids a felon to possess a gun, it is taking away his right to defend himself with a gun, by saying he can't have one. You may have a problem with society doing this, or you may not, but that's what they're doing.
And yet when the felon gets busted, you're saying it's wrong to enhance his sentence for using a gun in self-defense, because he has the right to do so. But society has already decided that right should be taken away. Is it surprising in the least that society would seek to punish him for exercising a right which society doesn't think he has?
That's an interesting point, but to add another layer of complication, what effect might the common-law defense of necessity (which I vaguely recall from 1L year, so pardon me if I get it wrong) have on your hypothetical? If I'm a convicted felon walking down the street one day minding my own business and a man with a gun starts shooting at me from across the street (assume I'm unable to retreat safely), and there just happens to be a handgun lying at my feet, mightn't I pick up the gun to protect myself in the hopes of prevailing in a subsequent prosecution for being a felon in possession with the defense that my illegal act was necessary to preserve my life? And if so, doesn't that suggest that even felons do have the right to defend themselves with a firearm when necessary, even if they don't have the right to possess one any other time?
Steve: Yes, it's really wrong to punish a felon extra because he used a gun in lawful self-defense. Society takes away felons' guns because it's afraid that the felons will misuse them. It's proper to punish felons in order to enforce the law -- but not to punish them extra because they used the guns properly, even laudably, in legal self-defense.
The same, of course, comes up in lots of other contexts. Carrying a gun without a license is a crime in most states. Does that mean that it's proper to punish illegal carriers extra when they use that gun in lawful self-defense? I don't think so.
He isn't even legally allowed to possess a firearm, and he comes out of his house pointing it at someone on public property, and then ran when they turned out to be cops. How is this self-defense at all? The state charge was dismissed after the Federal conviction; they should reinstate the charges now that his defense hinges on their leniency.
O. Hutchins: it's NOT self-defense, and the decision states that. BUT, the decision also (rightly, IMO) states that if it _was_ legitimately self-defense, the enhancement could not be applied, while the prosecutor argued that the enhancement _would_ apply, regardless of whether it was legitimately self-defense.
Of course not, because where a state requires a license, they haven't taken away your right to self-defense; they've merely said you need to obtain a license prior to exercising it.
Prohibiting someone from owning a firearm is tantamount to removing their right to self-defense, at least self-defense with a firearm. If I were to say "oh, you still have the right to self-defense, because if you're walking down the street and see a gun lying there as someone starts shooting at you, you'd be entitled to pick up the gun and defend yourself," you'd think I was ridiculous.
I don't think you understand what a dangerous argument you're making by divorcing the right to gun ownership from the right of self-defense. Gun ownership is a constitutional right we're fortunate enough to enjoy (sort of) in this country; self-defense, I presume you'll agree, is a basic human right. If we accept your argument that these are two completely separate rights, then you've lost the moral high ground to object to a scheme of universal gun confiscation. "After all," the Nazis or like regime would argue, "you still have your right to defend yourself with a firearm, all we're doing is saying you can't HAVE one." I previously would have thought this was an absurd argument, but you seem to think the right of self-defense is actually still worth something in that context.
He gets a record for more successful prosecutions, which is good for election time if you're a DA (Hello, Nifong) or promotion if you're a US Attorney...
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
The passer-by was a felon, convicted of assaulting a police officer in the past. No charges were filed against him.
I just bring this up as an example. IANAL
As to the supposed danger of my argument, I don't see it. As I've argued before, guns are indeed an important means of self-defense. But when gun rights are restricted, whether rightly or wrongly, whether by banning possession by felons or by banning public carrying, it hardly means we should then give up on self-defense rights generally. If a form of gun possession is punishable, it doesn't follow that otherwise lawful self-defense using that gun should increase the punishment.
You contradict yourself in the post, if one right is a government given right, and another is a basic human right then it is a given that they are separate rights.
Also, from what I understand, the amount of force 'allowable' in self defense is based on the amount of force being applied (IANAL, nor am I sure how this specifically applies in all states). In other words, if someone comes at me swinging, I cannot shot him and claim self defense. Other than that, AFAIK, there are no limitations to self defense (as far as what you use in the process, I won't go into what specifically is self defense) so your argument stating a felon can't defend himself with any specific weapon doesn't hold water.
Question (to anyone): What is the actual wording in respect to felons not being able to own a gun? I assume the can't purchase, but what about possession, where does it draw the line? A felon is walking down the street, sees some children playing with a gun. He takes it away from them and contact police, did he commit a crime? What if a felon has borrowed a car from a friend that has a legally owned gun in it (without knowing about the gun) is he breaking a law?
(The above is a summary of what I heard many liberals argue in law school)
2923.13 Having weapons while under disability.
(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
(1) The person is a fugitive from justice.
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
http://codes.ohio.gov/orc/2923
So it appears that even the NH example above would still be a crime in Ohio "no person shall knowingly . . . use any firearm"
ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
So if you make it yourself, you're fine! Oh, wait, the Raich decision took care of that loophole. Never mind, you're screwed.
No where in that article does it say that Floyd was convicted of a felony.
The article says that he plead guilty to simple assault (which is a misdemeanor in most jurisdictions) and he received a $1000 fine for selling marijuana. The article doesn't say anything about jail-time, so based on just the fine, it looks like that too was a misdemeanor.
I don't know what your intention was in pointing out that (presumably incorrect) fact.
Turns out you are correct. Floyd was convicted on a felony drug charge in Georgia in 1991, but under New Hampshire law that offense was only a misdemeanor. I was relying on memory, always a bad thing to do. Details are here. Thanks for the follow-up.
Yes, it most certainly IS wrong.
Most of us believe any person should be able to defend his life or his family's lives at any time by whatever means available. Most of us believe this is true even for convicted felons.
Whenever there is a conflict between the right of self-defense and a law, in this case preventing a felon from possessing a firearm, most of us would resolve that conflict in favor of a right to self-defense.
For me this isn't even a close call.