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.
are why we non-lawyers sometimes go "huh?"
At least his appeal was "well-briefed." (Slip Op. at 3)
I suppose you'd give a pass to a timed bomb, too, if the timer hadn't yet run down.
I'm not sure what "unregisterd" 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."
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.
I think any prosecutor would have to say, "AFFIRMative."
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.
Granted, Mr. Crampton appears to be so dense that he'd better be taken out of circulation for a while.
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".
Short barreled shotgun is an NFA weapon. Tax of $200 and registration.
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.
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 :)
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.
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.
Uhuh. And Lincoln's famous dog does have five legs.
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?
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?
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.
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.
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.
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.
But here in Texas, I'm sure some people do play "see who can throw the grenade the farthest" on some ranch somewhere.
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.