Recently in Use of Force Category

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

In a situation where the law permits you to shoot someone in self-defense, can you say "Stop, or I'll shoot" instead? A "yes" answer would seem to be obvious, but in Kansas you had better go ahead and shoot him. The Supreme Court of Kansas gave an overly literal and cramped interpretation of its self-defense statute in State v. Hendrix, No. 97,323, today, finding that only use of force, not threat to use force, comes within the statute. Thanks to How Appealing for the pointer.

Prompt legislative action is in order.

The Gallup Poll finds Americans divided down the middle on the AGs investigation of interrogation of terrorism suspects. The most interesting part of the poll, to me anyway, is the breakdown by party. Republicans and Democrats line up as expected, but the increasingly important Independents break 55-40 disapproving the investigation. There is also this nugget:

Notably, opposition to the investigation runs much higher among the attentive public -- Americans who say they follow news about national politics "very closely." Among this group, 36% approve and 63% disapprove of the investigation. On the other hand, a majority of Americans who follow national political news less closely approve of the investigation.

Yesterday, the Ninth Circuit pseudo en banc* decided the case of Fisher v. City of San Jose.

We address the Fourth Amendment's exigent circumstances doctrine in the context of armed standoffs. Steven Fisher triggered a standoff with San Jose police after he pointed a rifle at a private security guard who was investigating loud noises in Fisher's apartment complex. When the police arrived at his apartment, a noticeably intoxicated Fisher pointed one of his eighteen rifles at the officers and threatened to shoot them. The ensuing standoff lasted more than twelve hours and ended peacefully when Fisher finally emerged and allowed himself to be taken into custody. We hold that Fisher's civil rights were not violated when police arrested him without a warrant.

Nothing remarkable there. Here is the weird part. Believe it or not, there is actually a dissent to that, and the final vote is only 6-5 in a clear, easy case that should be unanimous.

From AP comes this brief story of an unfortunate incident on the day after Christmas in Salinas, California.

A man is under arrest on suspicion of murder after police say he pushed a panhandler away from his car at a gas station, resulting in a fatal head injury.