Thursday, May 29, 2008

Discontinued Until Further Notice (2009)

Canon 4 of the Code of Ethics for Judicial Employees requires me to consult with my Judge regarding the appropriateness of blogging related to the law. After our conversation, I decided that to continue summarizing other cases might create the appearance of impropriety when the same issues could arise before my chambers. Clerks, like Caesar’s wife, must be beyond reproach.

While I could continue to blog until I start work this fall, I would rather avoid that appearance all together. Therefore, I am discontinuing this blog until after my clerkship ends, at some point in 2009. Thank you to the readers, and to those who have so graciously helped my readership grow.

I am leaving this blog up both because I hope to return, and so that the sidebar remains active to return the favor. If someone wishes to join this blog to write similar case summaries, I would also be interested in that, as I do not believe a passive association with the writing would create any negative appearance -- I would be in the same position as if I was reading a HLR case comment.

Thursday, May 22, 2008

Split Widened: Is Simple Battery a Crime of Physical Force?

Per United States v. Hays, 2008 WL 2108079 (10th Cir. May 20, 2008)

Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.

The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.

Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation

Welcome Back

The last month has been incredibly busy for me. I attended a college reunion as well as beach week. I finished a sports season, in which my team made it to the sweet sixteen round of the national playoffs before losing by one goal. Finally, and most importantly, I am now engaged.

I made the obvious choice to leave off blogging in the interim. I now rejoin the debate, rejuvenated by my time off. There has been much going on in my time off. I wanted to mourn the passing of my main inspiration – Decision of the Day. Robert Loblaw has performed a great service for almost three years, and deserves much more than the humble praise that I can offer. I also intend to respond, albeit belatedly, to Feddie’s call for ideas.

For now though, I will return to my main occupation – discussing appellate opinions that create or note circuit splits. It is my hope that my regular readers will rejoin me in due course. Please, as always, feel free to drop me an email regarding this blog’s coverage or your interest.