We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.* * *An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
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The San Diego Sheriff announced he would not seek rehearing en banc. The California Attorney General has now moved to intervene and petitioned for rehearing en banc.
In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question. The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made. It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute. The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999. That was very wrong, even though the case ultimately ended with the statute being struck down.
In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented. However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.
Oh, BTW, the case is a slam dunk for rehearing en banc.
There was one exception to the denials-later practice today. The Court turned down the case of Florida murderer Marshall Gore. As noted in the prior post, Gore's claim of mental incompetence has been found to be "patently a fabrication." He is scheduled for execution today.
The other capital cases will probably be denied Monday, although one or more might be "relisted" to be considered again at a future conference.
The case of a traffic stop based on an anonymous call is described in a separate post.
The Court also took up the case of United States v. Castleman, No. 12-1371, another variation on the federal statute barring gun possession by people with certain convictions, in this case a "misdemeanor crime of domestic violence." This appears to be a pure statutory interpretation argument, not involving the constitutional question of whether Congress has the authority to micromanage who is allowed to possess a gun.
Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.
The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.Will that dog hunt? No.
Would a ban on assault weapons have prevented this crime? No, the killer probably used a revolver. Would background checks have helped? Probably not, despite what the expert interviewed in the preceding link says. Extending background checks to gun shows or even to private sales by law-abiding individuals won't stop criminals from getting them through black-market sales or just stealing them. (I am not against background checks. I just don't think they will have a large effect on crime rates.)
So what does work? Mostly measures that are opposed by the same people calling for these ineffective measures. First, locking criminals up works. Jason Meisner of the ChiTrib reports:
The reputed gang member accused of gunning down 15-year-old Hadiya Pendleton last month was on the street even though he had been arrested three times in connection with break-ins and trespassing while on probation for a weapons conviction in recent months, the Tribune has learned.
In two of those arrests, including one just 2 1/2 months ago, Cook County probation officials failed to notify prosecutors or the judge that Michael Ward had been arrested on the new misdemeanor charges and allegedly violated his probation.
The head of the county's probation department acknowledged Monday that his office fell short in its responsibilities and vowed to find out what went wrong.
If they hadn't "fallen short" in locking up this criminal, Hadiya would be alive.
Another measure that works is the proactive policing of the kind New York City uses over the vehement opposition of the Politically Correct. Holman Jenkins has this column in the WSJ:
Chicago had more than 500 murders last year. The police chief believes that gun control is a big part of the answer, and has proposed a three-year mandatory minimum sentence for those convicted of illegal possession of a gun.
This has led to renewed interest in the Windy City about mandatory minimum sentencing generally. Some, including me, believe that the legislature has every right to decide that, for a given crime, there is a floor below which the court should not be able to go no matter what the mitigating circumstances. This seems no more than the logical counterpart to the notion that the legislature should be able to impose a ceiling on the sentence for a given crime, because, no matter how bad the offender may be, the act made criminal simply cannot, in fairness, warrant more than X amount of jail time. If we can accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense -- and almost everyone would agree we can -- we can accept its judgment about what sentence is necessarily too lenient.
Others think that mandatory sentencing laws unwisely tie the judge's hands. In their view, only the judge has the flesh-and-blood defendant before him, and thus he alone -- not the legislature -- is able to tailor the sentence to the requirements of justice.
The battle will be joined when I discuss this topic with Prof. Doug Berman of the Ohio State University on Chicago's public radio station. The program is called "Morning Shift," and Doug and I will be on Monday at 9:15 a.m. Central Time. The show airs on WBEZ, 91.5.
Charles Cooke of NRO observes today:
Bill Clinton didn't just blame Timothy McVeigh's actions on Rush Limbaugh and others at the time, but came back 15 years later for a another shot at the apple, libeling the Tea Party in the process. In 2010, both Dana Milbank and the Daily Kos went so far as to write pieces about a shooting that never happened, blaming the attempt on Glenn Beck. Piers Morgan happily asked Gabby Giffords's husband whether he had received an apology from Sarah Palin, and was astonished when the answer was "no."
The attempt to blame conservatives and/or Second Amendment advocates for mass murder by deranged people has an unfortunately long history. That's the bad part. The good part is people of normal intelligence don't buy it. The even better part, in a sick sort of way, is that it can be turned on its purveryors.
The Obama Administration says it is. Personally, I confess I don't know. I have almost no acquaintance with guns. My instinct tells me that gun control is not the answer; control of criminals is. Yet it certainly seems that those most in favor of controlling guns are the same people least in favor of controlling criminals.
But let's assume that the Obama Administration is correct, and that gun control is the answer. That would not demonstrate, however, that we need more gun control laws. It might more peruasively suggest that we should do a better job of enforcing the ones we have.
But guess what. Under President Obama, gun prosecutions are down by between 25% and 50% from the Bush Administration. This little known fact was discussed today by two of the Senate's brightest members, Jeff Sessions and our friend Ted Cruz.
Powerline has the story.
Even when I agree in substance with the president, as I do in this instance, I find his combination of self-righteousness and demagoguery to be off-putting. In his remarks earlier today, for example, the president once again took to the task of demonizing his opponents, something he does more promiscuously than any president I can recall.For Mr. Obama, it's never about honest differences over policies. His political opponents have to be painted as morally obtuse, cruel and motivated by the basest considerations. (The president, of course, is always portraying himself as hovering far above politics, a man of stainless integrity and motives that are pure as the driven snow. Which is quite a feat for a man who ran a billion-dollar campaign of unusual ruthlessness and dishonesty.)In this instance, Mr. Obama posed the choices this way: Are members of Congress doing what it takes to "get an A grade from the gun lobby that funds their campaigns? Or giving parents some piece of mind when they drop their child off to 1st grade?" It's not that his critics believe his proposals will be worthless or even wrong. No, their motivation is to "gin up fear or higher ratings or revenue for themselves."
Gallup gets a round of raspberries for this confusing question: "Are you for or against a law which would make it illegal to manufacture, sell, or possess semi-automatic guns known as assault rifles?" A great many people do not know that so-called "assault rifles" are only a subset of semi-automatics, and the question compounds the confusion. Among the confused people is the person who wrote the captions for the graphs in this report. The graph for the above question is captioned: "Support for Ban on Semi-Automatic Guns." Um, no. The result, for what it's worth, is 51% no and 44% yes.