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After You Read the First Paragraph of the Facts
in this opinion by Judge Kleinfeld, you get the feeling the conviction is going to be affirmed:
Gregg Crampton was driving his niece and her three-year old daughter around as he made a methamphetamine delivery. He realized his probation officer had seen him, so he sped away and told his niece to throw the methamphetamine and needles they had out of the window. She refused, so he pointed his gun at her, threatened her, and told her to get out of the car. She pointed out that the car was going too fast, so he slowed down and pushed her and her three-year-old out of the car.
Waldensian (mail):
Yeah, our man Crampton had to be pretty much hating the opinion at the point he finished this paragraph.
12.21.2007 8:47pm
PersonFromPorlock:
I can't feel too sorry for Crampton, but statements like:

...possession of an unregistered
short-barreled shotgun is a “crime of violence” even if it was
never used and the statute does not require violent use.


are why we non-lawyers sometimes go "huh?"
12.21.2007 9:13pm
Sean M:
But hey.

At least his appeal was "well-briefed." (Slip Op. at 3)
12.21.2007 9:35pm
PJH (mail) (www):
Speed kills. Let us hope it kills this sob -- soon.
12.21.2007 9:36pm
Harry Eagar (mail):
Uh, Person, wanna suggest a 'use' that would be non-violent for a tool like that?

I suppose you'd give a pass to a timed bomb, too, if the timer hadn't yet run down.
12.21.2007 9:36pm
AntonK (mail):
Uh, Eagar, how about a fun day at the range? Or, how about as a home defense tool?

I'm not sure what "unregisterd" means here. Who "registers" shotguns?
12.21.2007 9:44pm
A Northwestern Law Student:
I'm not sure what "unregister[e]d" means here. Who "registers" shotguns?

People who are following the law, particularly 26 U.S.C. §§ 5841(b) and 5845(a)(1), which require "[e]ach manufacturer, importer, and maker" to register every "firearm," a term with a limited meaning for this statute, but which includes " a shotgun having a barrel or barrels of less than 18 inches in length."
12.21.2007 10:02pm
Jay:
It's not that it was a shotgun, it's that it was a "short-barreled" (i.e., sawed-off) shotgun.
12.21.2007 10:03pm
Redlands (mail):
AntonK, a short barreled shotgun is unlawful to possess. Period. Goes for rifle too now that I think of it. Both of my shotguns are registered. Is there some reason they wouldn't or shouldn't be?
12.21.2007 10:06pm
stunned:
@Harry

It's pretty reasonable to think it's not a "crime of violence" to simply possess anything. Indeed, the dictionary definitions of the word focus on "action" and "exertion of...force" (m-w.com).

@AntonK

It's a short-barreled shotgun. Those, where legal at all, have to be registered.
12.21.2007 10:07pm
OrinKerr:

Who "registers" shotguns?

People who are following the law,
Heh.
12.21.2007 10:12pm
Dave N (mail):
When I saw the panel was composed of Judges David R. Thompson, Andrew J. Kleinfeld, and Jay S. Bybee, I figured that Mr. Crampton was in serious trouble.
12.21.2007 10:12pm
Dave N (mail):
In my Ninth Circuit practice, I dream about getting that constellation of judges.
12.21.2007 10:15pm
OrinKerr:
Dave N,

I think any prosecutor would have to say, "AFFIRMative."
12.21.2007 10:37pm
Bill Poser (mail) (www):
It's nice to know that some convicts are neither innocent nor deserving of our sympathy. Was he also convicted in state court of the two assaults, the threat, and the various charges related to the high-speed chase?
12.21.2007 10:56pm
Sasha Volokh (mail) (www):
PersonFromPorlock, Harry Eagar, AntonK, stunned: All this discussion ignores that "violent crime" is defined in the statute, and the definition doesn't require actual violence: it just needs to present "a serious potential risk of physical injury to another." Now one might argue that mere possession of anything doesn't even meet this standard, but let's not be assuming that violence is required even though the legal expression happens to contain the word "violent."
12.21.2007 11:00pm
rlb:
Stocks and 18" barrels are a liability in close quarters.

The AR-15 with its collapseable stock, pistol grip, and 14.5" barrel (legal 16" with the flash suppressor) is now my "bump in the night" gun.
12.21.2007 11:07pm
Bill Poser (mail) (www):
A legitimate if illegal use for a cutoff shotgun is for defense against grizzly bears when traveling on horseback. A full length shotgun is awkward on horseback and any use of the weapon will be at short range. You carry a double-barreled shotgun with shot in one barrel and a slug in the other. The shot is for the warning shot. If the bear does not break off the attack, you fire the slug.
12.21.2007 11:13pm
M.E.Butler (mail):
If the interpretation of "crime of violence" in this context bothers you, you should check out what it has been construed to mean in the context of immigration law, where conviction for a crime of violence can mean mandatory detention prior to a removal hearing and mandatory removal, without any chance for relief from the immgration court. One example that makes you say "What???"--DUI, even where there's no accident, because of the potential for serious potential risk of physical risk to another.
12.21.2007 11:15pm
RainerK:
Yep Sasha, a good point. However, the others have a good point too. If the statutes are such that a non-lawyer citizen finds them at least puzzling but more likely confusing and presenting unexpected consequences, then I'd like to submit that we have a problem. After all, shouldn't at least the criminal law be transparent for every citizen except perhaps the most dimwitted ones, not just for the initiated? A problem best laid squarely at the feet of the lawmakers. Hold their feet to the fire!
Granted, Mr. Crampton appears to be so dense that he'd better be taken out of circulation for a while.
12.21.2007 11:16pm
Dave Hardy (mail) (www):
Yep, the first paragraph would probably be a clue that the opinion does not end "For all the above reasons, the conviction is reversed, and the district court directed to enter judgment dismissing the case with prejudice, and requiring the United States to furnish Defendant with a written apology within ten court days."

Technical point, to understand some comments: you can legally "saw off" a shotgun, so long as the barrel length does not end up as less than 18", or the total length (I think) under 27". Conversely, it is illegal to own, without tax stamp and registration, a shotgun with less than an 18" barrel even if it left the manufacturer with that length (altho obviously very few did after passage of the 1934 National Firearms Act, but there are still cases involving the pre-1934 Marble Game Getter shotgun). I use "sawed off" often as a colloquialism, but to be technical, the question isn't whether an owner sawed anything off.

For the REALLY hypertechnical: the rifle barrel limit used to be 18", too, until sometime after WWII, the government discovered that it had sold thousands of M-1 carbines to civilians, which had barrels a little over 16", Ooops. Congress then reduced the rifle barrel length to 16".
12.21.2007 11:16pm
glangston (mail):
Regular shotgun, no registration. NICS check yes.
Short barreled shotgun is an NFA weapon. Tax of $200 and registration.
12.21.2007 11:49pm
speedwell (mail):
RainerK... that's exactly what I was thinking about confusing laws.

Presumably we are supposed to be law-abiding citizens, but what about when the laws make no sense? How can we be held responsible for this Humpty-Dumptyish redefinition game? Defining "violence" in the way the law under discussion does is, to me (a laywoman in legal matters), basically equivalent to requiring that everyone "wear a hat," defined statutorily as "at all times carry a pound of shrimp wrapped in a copy of the New York Times not less than a week old."

Forgive me for feeling a bit of sympathy for Ayn Rand when she contends that many laws are set up as traps so that we are lawbreakers most of the time just by default, giving the authorities power over us they otherwise would not have had.
12.22.2007 12:07am
Paul Allen:

After You Read the First Paragraph of the Facts
in this opinion by Judge Kleinfeld, you get the feeling the conviction is going to be affirmed:


I should rather hope not, unless you're expecting a miscarriage of justice. Salacious details such as these ought not to influence reviewing what the law is. Indeed, they don't play into the reasoning one wit. Sometimes your time at Justice gets the better of you Orin :)
12.22.2007 1:00am
RainerK:
Speedwell,

It gets even more interesting when constitutionally protected rights are creatively redefined to get the desired results. Generally this results in the diminishment of everyone's rights. See here
I do realise that this is a top legal blog. Legal minds do think in statutes, case-law and other complicated terms. Their arguments have been very enlightening. I'm still an idealist. Sometimes I wish a discussion of basics could take place, such as what constitutes Justice in our society. Whether certain laws and rules are just or useful. How they could be rewritten to come closer to Justice. Perhaps I'm misunderstanding completely and the motions, briefs and back and forth in the courts are meant to attain that goal. If so, I believe that system leaves the majority of those living under the law out of the process. To their credit, the conspirators allow us lay people our imput, however misinformed it sometimes may be.
12.22.2007 1:34am
c.gray (mail):

After all, shouldn't at least the criminal law be transparent for every citizen except perhaps the most dimwitted ones, not just for the initiated?


Even if one is sympathetic to that argument in general, its hard to apply it to this particular case. Its not exactly a matter of arcane wisdom or secret knowledge that those who carry firearms while committing their crime, who also have prior convictions for possessing outlawed weapons, are going to be punished more severely under federal law.

And if someone has a good idea how to right statutes that cover all the loopholes a lawyer with clever arguments can steer a truck (or dangerous felon) through, while remaining easy for laymen to understand, most legislators would love to hear it.
12.22.2007 2:43am
A Northwestern Law Student:
I should rather hope not, unless you're expecting a miscarriage of justice. Salacious details such as these ought not to influence reviewing what the law is. Indeed, they don't play into the reasoning one wit.
It's true that the salaciousness of the facts should have no bearing on the impartial application of the law. But there's no rule that salacious facts shouldn't affect the way the opinion is written. In fact, I remember hearing a joke that you could guess the outcome of almost any criminal appeal from the first sentence: either it's "Appellant was convicted of . . . ," or else it's "Since the days of Magna Carta . . . ."
12.22.2007 2:55am
PersonFromPorlock:
Sasha Volokh:

...but let's not be assuming that violence is required even though the legal expression happens to contain the word "violent."

Uhuh. And Lincoln's famous dog does have five legs.
12.22.2007 8:24am
Edward Lunny (mail):
Not withstanding the above positions, one wonders, had Mr. Crampton put as much effort into living an honest and legal lifestyle as he put into his plea, he would not be in the predicament he is. Just saying.
12.22.2007 8:36am
Harvey Mosley (mail):

And if someone has a good idea how to right statutes that cover all the loopholes a lawyer with clever arguments can steer a truck (or dangerous felon) through, while remaining easy for laymen to understand, most legislators would love to hear it.


Simple. Prohibit anyone with any formal legal training or education from being a judge. Require lawmakers to write laws that can be understood by citizens. If the law is incomprehensible, the judge just throws it out.

If an intelligent layman can't understand the law, then it can't be a government of the people, by the people, for the people, can it?
12.22.2007 4:21pm
David Schwartz (mail):
At least a DUI requires reckless use of something. We're talking about a case where mere possession of something is a crime of violence, with no use at all even necessarily even intended.
12.22.2007 5:01pm
NI:
I think Harvey Mosley is on to something. Washington state does not require its trial court judges to have law degrees and not all of them do. (In addition, they're elected.) I once sat in the courtroom of a lay judge who tossed in the trash can (in full view of the jury) proposed jury instructions from both sides, turned to the jury, and said, "This case is about stealing. You're all old enough to know, without my having to tell you, what stealing is. If you think the prosecution proved beyond a reasonable doubt that the defendant stole the automobile in question, then you must find him guilty. If you don't think the prosecution proved it, you must find him innocent. Your verdict must be unanimous. Any questions? Good. Now go, deliberate, and bring back a verdict." I defy any law professor to improve on those instructions (which were upheld on appeal.)
12.22.2007 8:32pm
BruceM (mail) (www):
Come on. First of all, the "story" of the case has nothing to do with legal issues on appeal. Whenever judges start of a judicial opinion like that, reciting the "facts" of the case in the most egregiously-sounding way possible, they do so to instantly prejudice the readers of the opinion against the defendant, so whatever questionable legal ruling the court is going to make to affirm the conviction, the readers of the opinion won't feel too bad for the erroneous/unconstitutional ruling (after all, the defendant was really, really baaaaaad).

The fact that you can tell a conviction will be affirmed when an opinion starts off like that, while opinions that don't start out basically quoting the prosecutor's closing summation as an introduction to the case usually do not result in affirmation of conviction, is a huge problem. You should not be able to predict the outcome of an appellate decision based on its recitation of the facts.

When you can, it is prima facie evidence of result-oriented decisionmaking. The result, of course, being a desire to uphold the conviction at all costs. Possessing an unregistered gun is a per se crime of violence? Really? Or only for really baaaaaaaaaad defendants like this guy?
12.22.2007 10:04pm
abu hamza:
I'm with Bruce M on this one.

I remember in crim pro class a discussion involving an appellate opinion with the terse phrase "defendant consented to search of his vehicle." Those words on paper in the few prosecutions that make it to published opinions can be very far removed from WHAT ACTUALLY HAPPENED. I saw a "consented to search" fact pattern in real life once. Lee's Summit, MO police pulled over a black man into a conveinence store parking lot -- he should've known better than to be black driving around Lees Summit at nite that's for sure. Cops started really hassling him; crowd watches scene develop; cops go around the car with flashlights etc.; they're badgering him; e.g. 'we're gonna get the drug dog out here so you might as well just let us look inside' and 'are you gonna let us serach the car or are we going to have to arrest you?' I didn't stick around but let's say he does let them search. the cops find meth in the car, charges filed, at trial the defendant challenges the evidence. he's convicted. there's an appeal. it's a published opinion. it's picked up by a case book. An overeager future drug warrior prosecutor raises his hand in Crim Pro class: "yes but HE CONSENTED TO THE SEARCH so he waived all 4th amendment rights" See my point?

In Orin Kerr's land of starched shirts and swivel chairs, phrases like "stop and frisk" and "protective sweep" [not to mention outrageous concepts like 'consent once removed' that they aggressively push, to destroy what's left of our consitution] and so on are just words on paper, with no meaning to them because they will never have to undergo them. But in the real world, these are incredibly invasive, humiliating, embarassing encounters between citizens and armed government agents.
12.22.2007 11:33pm
Mr. X (www):
I like how possession of short-barreled shotguns and silencers is a crime of violence, but possession of semi-automatic assault weapons is not.

Crampton’s argument is foreclosed by controlling circuit precedent. We held in United States v. Dunn and in
United States v. Amparo that possession of an unregistered short-barreled shotgun is a “crime of violence” even if it was never used and the statute does not require violent use. Though we construed different penalty enhancements in those cases, the ratio decidendi applies and allows for no distinction.
In United States v. Serna, we held that possession of a
semiautomatic weapon categorized by statute as an illegal
“assault weapon” was not a crime of violence
, but took pains to distinguish sawed-off shotguns and silencers because “they have few, if any, legitimate uses.” Therefore, Dunn and Amparo are consistent with Serna.
12.23.2007 12:47am
BruceM (mail) (www):
In judicial decisions of criminal appeals affirming convictions, I've noticed there is a direct correlation between the length and details of the "statement of facts" (what the defendant was convicted of doing) with the questionableness and infirmity of the court of appeal's legal reasoning and holdings. The longer and more anti-defendant the statement of facts is, the more questionable and infirm the court of appeal's legal opinoin is.

This is true for all courts of appeals on the state and federal level. Many times, cases that reverse convictions don't even bother getting into the facts, other than to merely say the defendant was convicted of blablah in violation of penal code section whatever / 18 U.S.C. section whatever. That's all that's necessary unless there is a factual/legal sufficiency argument on appeal. Anything beyond a statement of what the defendant was convicted of is used to dare higher courts / the general public / the press from questioning the court's holdings. Think about it.

Abu H.:I believe a request for a consent to search cannot be valid without a stated "Miranda" style warning/notice of the right to refuse the consent. Otherwise it is too coercive merely by the asking of permission by a person stopped by uniformed cops with guns. Particularly minorities.

I believe the Austin Police Department has initiated a policy where all consent searches have to be made in writing, on a form that gives notice of the right to refuse the consent. That's a start.

Crime of violence should mean, at the very least, someone was bleeding. I don't even think attempted/threatened assaults/murders are crimes of violence, per se. Surely Congress did not intend for possession of a "bad" gun to be a crime of violence. Shoot someone with it without justification, sure.
12.23.2007 2:08am
Harry Eagar (mail):
'defense against grizzly bears when traveling on horseback'

I've never ridden a horse in bear country, Bill, but after thinking this over, I don't believe it.

Imagine yourself on a horse being charged by a bear. Not a stable platform for gunnery. By the time the bear is close enough to be hit by pellets, his momentum is going to reach the horse even if you shoot him -- though you're probably just as likely to shoot the horse.

As for the other barrel, my understanding is that if you're going to shoot a bear at close quarters, it had better be an aimed shot if you don't want to be the character in '. . . and some days the bear eats you.'

Anyhow, if that's the best example of a non-violent (insofar as humans are victims) use of sawed-off shotguns, I'd say that, balancing the interests, a statute assuming violent intent by possession of such a tool is reasonable and practical.

You could argue, I suppose, that throwing live grenades at a range is 'sport,' too. But then people would think you were out of your mind.
12.23.2007 11:11am
BruceM (mail) (www):
Harry: We go grenade jousting every weekend. Measuring to the outer rim of the 'splosion (as ya do), my record is 55 feet. Quite fun.
12.23.2007 1:06pm
Harry Eagar (mail):
Really? How do you transport them?

Long time ago I had a friend whose husband was playing 'pull the pin on the grenade and scare your friends' when the car hit a bump and the bomb slipped out of his hand.
12.23.2007 1:31pm
BruceM (mail) (www):
Harry: I was just kiddin'

But here in Texas, I'm sure some people do play "see who can throw the grenade the farthest" on some ranch somewhere.
12.23.2007 4:24pm
DJR:
BruceM:

I believe a request for a consent to search cannot be valid without a stated "Miranda" style warning/notice of the right to refuse the consent. Otherwise it is too coercive merely by the asking of permission by a person stopped by uniformed cops with guns. Particularly minorities.

I believe the Austin Police Department has initiated a policy where all consent searches have to be made in writing, on a form that gives notice of the right to refuse the consent. That's a start.


Your beliefs are touching, but that won't help someone pulled over and searched by "consent." Your first belief is simply wrong. Miranda applies to arrests. If there were a decision of the Supreme Court that required police to inform individuals of their right to refuse a consent search, we would all know it and you would read about (if, for instance, the case were called U.S. v. Jones) "Jones" warnings. As it is, we have Florida v. Bostick, which held that a bus passenger is engaged in a consensual encounter with two police officers who have worked their way from the front of the bus to the back, and such a person should feel free to terminate the encounter by leaving the bus.

I don't know anything about the Austin police department, but I would be very surprised if any police department voluntarily hampered its ability to solve crimes and get convictions beyond what is required by the Constitution. "Consent" searches are an extremely effective tool for law enforcement.
12.26.2007 9:21am