The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A very interesting debate on the Utah Supreme Court in Friday's State v. Rasabout; Professor Gordon Smith (The Conglomerate) has a detailed post on the subject, which is much worth reading. An excerpt:
[Andy] Rasabout [who fired twelve shots at a house in a gang-related drive-by shooting] was convicted of 12 counts of "unlawful discharge of a firearm." But is each shot a separate "discharge"? Or should the 12 shots together be considered one "discharge"? …
This is a matter of statutory construction, but the relevant statute, Utah Code section 76-10-508, does not address these questions expressly. The relevant focus of the Court's inquiry is legislative intent, but what did the Utah Legislature intend when it criminalized the "discharge of any kind of dangerous weapon or firearm … from an automobile … within 600 feet of … a house, dwelling, or any other building"?
The Utah Supreme Court held "each discrete shot" is one "discharge." The majority opinion came to that conclusion via conventional textual analysis, including consideration of the dictionary definition of "discharge." According to the Court, "Under these dictionary entries, the clearest reading of the statute is that discharging a weapon or firearm means shooting a weapon or firearm."
The majority opinion also relied on a close reading of the statute, which refers to a firearm as "any device … from which is expelled a projectile by action of an explosive." And, of course, there is the policy argument: "it was reasonable for the Legislature to criminalize each shot fired because each shot carries an independent harm."
None of this seems dispositive, but it's pretty standard analysis from a Court.
Associate Chief Justice Tom Lee agreed with all of the majority's conclusions, but was uncomfortable resolving the statutory ambiguity by reference to the dictionary. You should know why, but the gist of the problem is that the dictionary definition of "discharge" could mean "to shoot" or it could mean "to unload." And the dictionary does not tell us the best meaning in this context. To resolve this problem, Justice Lee turns to corpus linguistics ….
For more on what "corpus linguistics" means, why some Utah Supreme Court justices disapproved of Justice Lee's use of this technique and what Justice Lee (and Chief Justice Durrant, who expressed openness to the use of corpus linguistics) said, see Prof. Smith's post.