??? + Zoolander

"I feel like I am taking crazy pills."

|The Volokh Conspiracy |

From yesterday's dissenting opinion by Ninth Circuit Judge N.R. Smith in U.S. v. Begay:

MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? "I feel like I am taking crazy pills" [quoting Zoolander].

The underlying legal question—what qualifies as a "crime of violence" for purposes of the federal statute banning discharging a firearm during a "crime of violence"—is complicated (needlessly so, some say), because of the Supreme Court precedent on the subject; if you're interested, read the majority and dissenting opinions. Here I just wanted to pass along the dissent, which James Klugman (who alerted me to the opinion) speculates might be the first occurrence of "???" in a circuit court opinion. Regrettably, Westlaw and Lexis can't search for punctuation like that, so I can't confirm or deny that speculation ….

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  1. Interesting usage. I would have expected something like, “?!?” rather than ‘???.’ Use of an exclamation mark would express the writer’s bemusement AND his bewildered state more effectively (accurately??) than merely using multiple question marks.

    I take it that no one has yet used a smiley or frowny emoticon in a published opinion, yes? Only a matter of time, I fear.

    1. Flagged accidentally. They need an un-flag button.

      1. I think it’s a little different when it’s part of a quote. Still noteworthy, in that it shows that the judge is treating it the same as any other piece of text in order to quote it that way, but different.

  2. Did you try “escaping” the question marks like this: “\?\?\?”?

  3. But you can look on Lexis for the other citation to the movie:

    “In the words of Hansel, the fashion model played by Owen Wilson in the movie Zoolander, the files are “in the computer, it’s so simple.” Zoolander (Paramount Pictures 2001).” Phx. Entm’t Partners, LLC v. Milligan, Inc., No. 8:16-cv-3433-T-17JSS, 2017 U.S. Dist. LEXIS 216047, at *10 n.1 (M.D. Fla. Mar. 20, 2017).

    And honorable mention to Justice Kagan’s dissent in Lockhart v. United States, 136 S. Ct. 958, 969 (2016): “Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.”

  4. The “categorical approach” that ignores the crime’s particulars even when they’re known makes no sense…

    1. You get convicted of elements, not the specific conduct.

      1. In this case, though, the jury also also deliberated on (and ultimately convicted the defendant of) the actual murder as well. So I think that jury would have been perfectly well placed to decide whether or not that murder was, in fact, violent… which, by any reasonable definition, it was.

        (I realize that the supreme court reject this argument a few weeks ago.)

  5. Seems to me that a murder might not be violent. I don’t think an incomplete conspiracy can be violent, but any of the others can be.

    I understand how the problem comes about. Each of the states has its own criminal code, with its own methodology for identifying and naming crimes, so they can’t just supply a definition that lists all the included crimes in the statute, and have to rely on some judgment calls down the line.

    Is jaywalking a violent crime? Well, it probably has at least a possibility of being so on a major highway at a blind corner.

  6. Once again, the 9th circuit takes the plain meaning, and twists it all out of order…

  7. ” But, Your Honor, it was a non-violent murder”.

    1. Like, say, a poisoning by overdose of opioids. Such a violent end.

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