Thursday, January 17, 2013
The Criminal and the Gun
Such as do build their faith upon
the holy text of pike and gun.
— Samuel Butler, Hudibras
Although the NRA seems to be fairly capable of looking out for its own interests, from time to time it seems to overlook a stone in the legislative landscape (filled with constitutionally protected guns) that needs to be overturned. This stone is one it has never focused on, yet it is a stone underneath which lurks a pernicious, but until now unseen, assault on the gun and its right to be carried about by the citizenry. It is surprising the NRA has not noticed.
It came to my attention because of the case of Alleyne v. United States that was argued in the U.S. Supreme Court on January 14, 2013. The facts of that case are unimportant for our purposes except insofar as they pertain to the presence of a gun in the criminal enterprise that is the subject of the appeal.
Mr. Alleyne was convicted by a jury of the crime of robbery but was acquitted of the charge of brandishing a gun during a robbery. Had he been convicted of that offense the length of his sentence would have automatically been increased by seven years. (Although acquitted of that charge the judge found that Mr. Alleyne reasonably foresaw that his friend, accomplice and co-robber, would brandish a gun and, since a gun was involved, the judge nonetheless increased Mr. Alleyne’s sentence by seven years even though Mr. Alleyne had no gun in his possession.) That case drew my attention to one of the characteristics of criminal law that is found in the criminal statutes in every one of the fifty United States. The New York Penal Code Section 140.17 is a good example of that.
Section 140.17 says that a citizen who is exercising his/her constitutional right to carry a gun and decides to commit the crime of trespass (that does not require the use of a gun) will nonetheless, if caught, face much more severe punishment if convicted because of the fact that the citizen was carrying the gun even though the gun was not part of the criminal activity. Section 140.17 says a person is guilty of criminal trespass in the first degree when the person “knowingly enters or remains unlawfully in a building” and while there has the gun he always carries with him for protection (my words-not the statute’s). The citizen is guilty of criminal trespass, a class D felony that is much more serious than the crime of which the trespasser would have been convicted had the gun been left at home. Another example is found in the Colorado statutes.
The Colorado criminal law provides that a person is guilty of second degree burglary if the burglar acts without having possession of the gun that the citizen is entitled to carry for self protection, but it becomes first degree burglary if it is on the citizen’s person even though it is not part of the burglary and is not used in the commission of the crime.
What the foregoing laws and thousands like them demonstrate is that legislators have decided to impinge on the right of the run of the mill criminal to take a weapon when engaging in criminal activity even though the gun plays no role in the crime being committed. Because of these laws, every citizen engaged in criminal activity is forced to forego his/her constitutionally protected right to be accompanied by a gun. The chilling effect of such laws on the Second Amendment is obvious. There is no reason that a citizen who does not use a gun when committing a crime should face increased punishment simply because the citizen was exercising his Second Amendment right while committing the crime.
On July 1, 2011 the citizens of Virginia once again enjoyed the benefits of the NRA successful efforts to persuade that state’s legislature to repeal a law that had been in effect since 1993. The repealed law provided that Virginia citizens could only buy one gun a month. Thanks to the NRA’s efforts, Virginia citizens can now buy as many guns each month as will give them the security the Second Amendment was intended to provide. That victory behind it, the NRA will now have to spend its time protecting the cherished assault weapon that is found in so many homes around the country, a weapon whose presence among us is threatened by an activist president and a docile Congress. Once the presence of the assault gun is assured, however, the NRA should begin a campaign to reform all the criminal laws in the country to make sure that when a criminal commits a crime that does not involve the use of a gun, neither the judge nor the jury may increase the penalty imposed upon a citizen who commits a crime just because a gun was found in the criminal’s possession at the time the crime was committed. Criminals around the country will be grateful for the NRA’s continuing efforts to make life easier for them.
Thursday, January 10, 2013
Lechery and the Law
Thirty-five is a very attractive age. London society is full of women. . . who have, of their own free choice, remained thirty-five for years.
Oscar Wilde, The Importance of Being Earnest
Faithful readers know that I do not normally use my knowledge of the law to expound upon its virtues and flaws. Occasionally, however, I feel it incumbent upon me to explain intricacies that seem peculiarly suited to a matter of current interest to non-lawyers among my readers. This is true with respect to the now famous case of Nelson vs. Knight, a case from the Supreme Court of Iowa.
The case involves an apparently irresistibly beautiful woman, Melissa Nelson, and her easily distracted employer, James H. Knight. Jim is a dentist and Melissa was one of his assistants whom he fired because of her beauty after she had worked in his office for 10 ½ years. The problems she presented to Jim were well described by the court in its opinion. It said that during the 1 ½ years preceding her firing Jim had complained to her that “her clothing was too tight and revealing and ‘distracting.’” During the trial Jim said: “I don’t think it’s good for me to see her wearing things that accentuate her body.” To help him avoid the distracting sight he sometimes asked her to put on a lab coat, presumably on occasions when her body was being particularly accentuated by her clothing. Melissa did not think her clothing was particularly revealing and nor did she think her clothing inappropriate. Jim tried to help her understand when it was inappropriate by telling her that “if she saw his pants bulging, she would know that her clothing was too revealing.” It is not clear from the court’s opinion what Jim expected her to do on such an occasion although presumably she could ask to be excused to return home and put on clothing that did not have an untoward effect on Jim’s pants. On another occasion Jim told the court that Melissa had made some reference to infrequency in her sex life and that he, apparently being a car buff as well as a connoisseur of beautiful women, told her “That’s like having a Lamborghini in the garage and never driving it.” There is no indication in the opinion whether Melissa objected to being compared to a car.
In 2009 Jim took his children on a vacation and during his absence his wife, Jeanne, discovered that Melissa and Jim had exchanged text messages. She demanded that Jim fire Melissa “since she was a big threat to our marriage.” She and Jim went to their pastor who agreed with Jeanne. Shortly thereafter Jim called Melissa into his office and in the presence of another pastor from his church, read Melissa a prepared statement that said she was fired. He then handed her an envelope containing one month’s severance as reward for her 10-½ years of service, a sum the court described as “rather ungenerous.” Melissa was not happy at having been fired. She sued Jim saying she had been fired on the grounds of gender discrimination. And this is where my offering readers an instruction on the law comes into play.
Would-be-lawyers will assume that Jim defended himself on the grounds that Melissa was an attractive nuisance. Clearly Melissa was attractive and being attractive and, in the eyes of Jim’s wife, a threat to their marriage, she was a great nuisance. The layperson would, therefore, assume that Jim would defend himself saying Melissa was an attractive nuisance and that would be the end of the matter. That is, however, not how the law works.
People can never be attractive nuisances. That doctrine, reduced to its simplest terms, only applies to a hazardous object or condition on real estate and then, only if the injured person is a child. If a dangerous piece of equipment is located on a piece of property and a youngster is injured playing on it, the owner of the property may be liable for injuries the child incurs as a result of playing on the equipment even though the child was trespassing. An adult can never be an attractive nuisance even if, for example, a person as beautiful as Melissa, sunbathing in the nude caused someone in a neighboring swimming pool to execute a dive imperfectly and sustain an injury because of being distracted by the sunbather. The sunbather will never be convicted of being an attractive nuisance. For the foregoing reasons, Jim’s defense was not that Melissa was an attractive nuisance, as attractive as such a defense would seem to the non-lawyer.
Melissa sued Jim under an Iowa law that “makes it generally unlawful to discharge or otherwise discriminate against an employee because of the employee’s sex.” After examining many cases involving firings of members of the opposite (and sometimes same) sex, the court concluded that Melissa’s firing because his wife thought her a threat to her marriage, was an employment decision based on personal relations, not gender-based nor based on factors that might be a proxy for gender. She lost. Jim’s attorney described the outcome as a victory for family values since Melissa was fired so Jim could save his marriage. Melissa, it turns out, was a sacrificial lamb rather than an attractive nuisance. Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com
Thursday, January 3, 2013
Philosophy and Football
The toe bone’s connected to the foot bone,
The foot bone’s connected to the anklebone
The anklebone’s connected to the leg bone,
Now shake dem skeleton bones!
— Children’s song
November and December were exciting months in the world of college football and the events causing the excitement not only involved money but highlighted the differences between, let us say for purposes of illustration, college athletic departments and their philosophy departments.
Few philosophy graduates will turn out to watch a philosopher in action. If a particularly brilliant philosopher publishes a particularly brilliant paper on some philosophical subject, alumni will generally not make large contributions to the philosophy department in order to reward the department for its member’s success. If a university decides it made a mistake giving a philosophy professor tenure (a status that guarantees the professor that, absent exigent circumstances, he or she cannot be fired) the university that wants to rid itself of the professor rarely offers him or her millions of dollars to relinquish the privileges given the professor when tenure was awarded.
The foregoing came to mind because of the munificence bestowed upon a variety of football coaches during the waning months of 2012. Such munificence is made possible because of vast sums bestowed upon athletic departments by university graduates who are grateful for the fine education the university provided them. Four schools serve to make the point although there almost certainly are more.
At the conclusion of a particularly disastrous season for the University of Colorado’s football team, Jon Embree, its coach, was fired. Although Coach Embree had a five-year contract and had only worked at the University as head coach for two years, the university agreed to pay him $1.5 million and one of his assistants, $750, 000, in exchange for their leaving the football program immediately. Since the university still had a football team, however, it had to find another coach. Creating great excitement, it looked briefly as though it would hire Butch Jones, a renowned coach working at the University of Cincinnati. Colorado hoped to lure him by offering to pay him $2.7 million a year, a much greater sum than anyone in that school’s philosophy department earned. Fortunately for the university, Butch turned it down. It was fortunate because it turns out Butch was a great deal more expensive than the salary he was offered suggests. We know that because Butch was hired by the University of Tennessee a few days after turning down Colorado.
Tennessee agreed to pay Butch $18.2 million over six years. That consisted of an annual base salary of $245,000 plus “supplemental compensation” of $2,705,000 for annual pay of $2,950,000. In addition, he got a $500,000 sign in bonus. Since Butch was leaving before the end of his contract term with the University of Cincinnati, he was required by his contract with Cincinnati to pay it $1.4 million and Tennessee agreed to pay that on Butch’s behalf. Those were not the only costs associated with changing football coaches at Tennessee. When Tennessee fired former head coach, Derek Dooley, (before hiring Butch) it agreed to pay Derek $5 million, a sum payable in installments over 4 years. In addition, if Butch doesn’t want to keep the Dooley coaching staff, the university agreed to pay the staff an additional $4 million for terminating their contracts. The simple act of changing coaches may end up costing Tennessee more than $25 million. The Colorado-Tennessee coach shufflings were not unique.
Alabama’s Auburn University fired Gene Chizik, its head coach, in November 2012, having signed a contract extension with him two years earlier. Because of its contractual obligations, Gene will be paid $7.5 million and if his coaching staff is fired by his replacement, the university will pay the staff $3.5 million. Lady Luck smiled on Auburn and it was able to hire Gus Malzahn, who had been the head coach at Arkansas State, as Gene’s replacement. It will pay Gus a base salary of $500,000 and an additional $1.8 million from miscellaneous sources. In addition Auburn will pay $700,000 to Arkansas State which is the amount Gene is obligated to pay Arkansas State since he didn’t fulfill his contract. (That $700,000 is treated as a loan to Gus that is forgiven over 5 years.)
The University of California at Berkeley wanted to show that notwithstanding its financial difficulties, it could play with the best of them. In November it fired Jeff Tedford who had been head coach for 11 years and had the best record of any head coach in that school’s football history. The last three seasons had not been stellar, however, and as is the custom in football, when that happens the coach is fired. (If a philosophy professor gives a poor lecture there are no such consequences.) Pursuant to his contract Jeff will be paid $5.4 million by California if he does not find another job. California has hired Sonny Dykes from Louisiana Tech to replace Jeff. Sonny’s replacement at Louisiana Tech will be Skip Holtz who was just fired by South Florida after having received a contract extension last season. South Florida will pay Skip $2.5 million for having fired him before his contract was up. Etc.