Felons and guns
Apparently, the ninth circuit would rather a felon leave a gun he found at a school than pick it up to turn it in to the police. Mind you, the guy’s story has enough holes in it to drive a truck through but if taken at face-value, the ninth is being stupid.
September 6th, 2006 at 12:08 pm
Just read the opinion and have to disagree. The 9th decided that a spurious argument for the defense, supported only by the assertion of an intent by the defendent, asserted only after the defendent was informed he was being actively sought for a crime fo rwhich his only possible defense was the acceptance of his assertion, without any other corroboration, was not a reason for changing either existing precedent nor for rewriting the common reading of the text of a law. While the reasoning seemed rather roundabout to me, the decision respects existing precedent and seems sound to me.
Of course, assuming “the 9th is stupid” is a default position that will win most bets about the decisions of the 9th.
September 6th, 2006 at 1:09 pm
I have to disagree on the opinion. This was an instruction to a fact question, and there should have been no danger to including it. This was an affirmative defense, which means that he would have to prove that it was more likely than not that this was an innocent possession. That’s a tall hill to climb. Do I think it was a good defense? No. Do I think it would have prevailed? No, because it was indeed a spurious argument.
But that is for you and me to decide as jurors, not the judge. They should have included the instruction, let the jury laugh its ass off at the idea that was was just fixin to take it to the po-pos when he got popped, swear to gawd, and convict him. With a defense that weak, it is stupid — and dangerous to our liberty — to not send it to the jury.
September 6th, 2006 at 1:15 pm
They go so far as to say that there is some — not much, but some — reason to believe that his possession was indeed innocent but then reject the requested instruction. One can only imagine that they fear that the jury on a retrial might believe him.
September 6th, 2006 at 8:31 pm
No, the 9th is being consistent. It takes either an en banc review or a supreme court decision to overturn their existing anti-gun opinions like silvieria et al.