Friday, June 26, 2015

Is That a Sausage in Your Pocket, or Are You Just Happy to See Me?

Justice Scalia's dissent in King v. Burwell is all the rage this week, but this opinion in United States v. Dixon from Judge Easterbrook of the Seventh Circuit
Judge Easterbrook
Court of Appeals is entertaining as well. Judge Easterbrook is an excellent writer, and his opinions are always full of interesting turns of phrase, uses of colloquialisms, and the like.

Dixon raises the question of whether a man who pointed an object that bank tellers thought was a gun should have been sentenced for bank robbery by intimidation (18 U.S.C. § 2213(a)) rather than for bank robbery by using a dangerous weapon or device (under § 2213(d)).

When he attempted to hold up a bank, the defendant "brandished an object with a long barrel" that turned out to be a butane lighter. He argued on appeal that regardless of whether the bank teller thought the object was a firearm, the lighter could not be a "dangerous weapon or device."

According to Judge Easterbrook:

The statutory question, however, is whether the bank robber used a “dangerous weapon or device” rather than whether a guard or teller mistook a harmless device for a weapon. That would be clear enough if Dixon had placed his hand in his pocket with his finger extended
to simulate the barrel of a pistol, or if he had used six inches of wooden dowel sawed from the end of a broomstick to simulate a hidden gun barrel. If the lighter risked gunfire, so might a finger in a pocket or a dowel in a pocket or a water pistol in a pocket or even a kielbasa in a pocket.

McLaughlin v. United States, 476 U.S. 16 (1986), gives three reasons why an unloaded handgun is a “dangerous weapon” under §2113(d): first, every firearm is potentially dangerous; second, it instills fear in those at which it is pointed; third, it can cause injury when used as a bludgeon. None of these things is true about a kielbasa. A hidden stiff object, plus a threat, may lead to fear, but fear differs from a “dangerous weapon or device”.

One decision stated that a toy looking to observers like a real gun might be a “dangerous weapon” because of its fear-inducing potential, see United States v. Hargrove, 201 F.3d 966, 968 n.2 (7th Cir. 2000), but we have never held this. We are skeptical; the statute requires a dangerous weapon or device rather than something a teller believes incorrectly to be dangerous (what if a teller was terrified of rabbits?); but we need not decide because Dixon did not wield a firearm look-alike.   

With the kielbasa reference, I think Judge Easterbrook could have added some fun puns and idioms:

-in robbing the bank, the defendant was seeking to bring home the bacon
-the State's position was cooked
-the defendant had a beef with the finding that the lighter is a dangerous weapon
-the meat of the matter was the sentencing issue
Happy Friday!


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