Tuesday, July 10, 2012

Which case says that a hand under the shirt is not a gun?

In Mitchell v. Com., the Court of Appeals in an opinion by Judge Alston joined by Judges Petty and Beales denied relief on what sounded like a plausible appellate issue for failure to cite legal authority.

The issue was whether the defendant could be convicted under Va. Code 18.2-53.1 where a substantive element was that the defendant did "use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner" and the victim did not say that he ever saw a firearm. The appellant cited the language of the statute, and argued:

"In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand."

The Court cited several cases, suggesting that counsel could or should have used them in support of the argument. One of them says: "Possession of a firearm is an essential element of the statutory offense, and the fact that Konchal merely thought or perceived that Yarborough was armed is insufficient to prove that he actually possessed a firearm." Yarborough v. Com., 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994). The discussion in Yarborough suggests to me that the issue was one of plain meaning, and that this fellow Mitchell was wrongfully convicted.

Moreover, in my view, a citation to the express language of the Code should often satisfy the requirement under the appellate rules for legal authority, when the argument is based on the plain meaning of the statute and identifies the statutory element that was not proven. The need for case law would arise only where the tools of construction must be applied.

As Judge Posner once famously explained, in the context of qualified immunity for public officials under section 1983, where the state of law is an issue: "The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances." K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). You shouldn't need a case to make the point that a hand under a shirt is not a pistol, shotgun, rifle, or other firearm.

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