Case o' The Week: Ninth Reverses Convictions for Three Grizzly Deaths - Wallen and Good Faith Self-Defense

 The AUSA and MJ won’t like our subjective “good faith” self-defense theory after reversal and remand.

  (But they’ll have to grin and “bear” it).

United States v. Wallen, 2017 WL 4799292(9th Cir. Oct. 25, 2017), decision available here.

Players: Decision by Judge Fisher, joined by Judges O’Scannlain and Friedland. Admirable win by Assistant Defender John Rhodes, Federal Defenders of Montana.

Facts: Wallen lived in Montana. There are bears. Specifically, three grizzlies killed his chickens, ran near his kids, scared his wife, and returned repeatedly despite being chased off. Id. at *2. When the bears returned to the home for the third time in one day, Wallen killed them. Id.

  He gave different narratives of what happened to agents, and was charged with three misdemeanor counts of violating the Endangered Species Act. Id.

  At the bench trial, Wallen asserted he shot the bears in self-defense. Id. at *2. Id. The magistrate judge, as the factfinder, found Wallen’s claim of self-defense was objectively unreasonable and found him guilty. Id. at *3.

 Wallen appealed.

Issue(s): “Here, the parties dispute whether the ‘good faith belief’ standard an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains. The magistrate judge and district court applied an objective test.” Id. at *5.

Held: “We conclude that was error.” Id. “We now hold that subjective good faith belief suffices to establish self-defense under this statute.” Id. 

  “We . . . construe § 1540(b)(3) in accordance with the general principle that a good faith belief defense ordinarily depends on a defendant’s subject state of mind rather than the objective reasonableness of the defendant’s belief . . . .” Id. at *8.

Of Note: The Endangered Species Act provides a defense when the defendant kills an endangered animal, but had a “good faith belief he was acting to protect himself or herself” or others from bodily harm. Id. at *5 (quoting 16 U.S.C. § 1540(b)(3)). Judge Fisher concludes that the words “good faith” requires an analysis of the defendant’s subjective belief – not the (more difficult) “objective” reasonable person standard. Id. at *5-*6.

  “But wait,” you may ask, “doesn’t the vanilla federal assault statute require that more-difficult objective, ‘reasonable’ belief of danger to argue self-defense?”

  It does indeed.

  Judge Fisher observes that 18U.SC. § 113 (“Assaults within maritime and territorial jurisdiction”) only permits a self-defense theory when a defendant reasonably believes the force was necessary. Id. at *6, quoting United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1994). Shoot a grizzly and your sincere belief in the need for self-defense is enough. Assault a human, and a “reasonable,” objective belief in the need for self-defense is necessary.

   Weird? Blame Congress, explains this admirably honest opinion. Id. at *6. The two statutes are written differently: unlike the Endangered Species Act, the Section 113 assault statute has no “good faith” language. The Ninth is just calling ‘em like Congress writes ‘em.

How to Use: Fourth Amendment fans may get a little nervous with all this “subjective good faith” language that peppers Wallen. In a world where Leon and Jacobson give cops a “good faith” harbor, does Wallen mean that a cops who honestly – but unreasonably – believe a search was righteous escapes suppressesion?

  It does not. 

  Judge Fisher carefully distinguishes those other good faith cases, that arise in the context of the Fourth Amendment and § 1983 claims. A cop’s assertion of good faith for a search, and the government’s assertion of good faith in the context of the Stored Communications Act, still must be objectively reasonable. Id. at *7.

                                               

For Further Reading: Last summer, Senator Jeff Flake (R-Arizona) introduced a bill to split the Ninth– and held a hearing on the issue. See article here.  

 This week, Senator Flake famously explained he would not be seeking re-election – and added a bon mot or two with his announcement. See article here. 

  Impossible to predict the Split’s momentum, but safe to predict it won’t come be from a bill sponsored by Senator Flake.

Image from the Big Lebowski from https://i.pinimg.com/originals/98/cf/76/98cf7624015401cbfba1eb733640b428.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: The Ninth Gets Petty -- Stanfill El, Petty Offenses, and Jury Trials

  All over the country, interns are beginning their summer of service at federal courts, Defender offices, and various federal agencies.

  An opportune time to revisit Federal Intern Rule #1: keep the fistfights off of federal jurisdiction, please. United States v. Stanfill El, 2013 WL 18000046 (9th Cir. Apr. 30, 2013), decision available here.

Players: Decision by Judge Clifton, joined by Judges Tashima and Bea. Hard-fought appeal by D. Or. AFPD Thomas J. Hester.

Facts: Lawrence Stanfill El and Kyle Carmin were interns who worked next to each other at the Department of Veterans Affairs. Id. at *1. They fought, and Stanfill El punched Carmin several times. Id. Carmin was hospitalized. Id. Stanfill El was charged with federal assault under 18 U.S.C. § 113(a)(4). Id. This offense carries a six month maximum custodial term. Id. at *2. Stanfill El pleaded not guilty and demanded a jury trial: that demand was denied and he was tried before a judge. Id. at *1. Stanfill was found guilty, and the only “sentence” imposed was a restitution order for $3,468 .03 in medical bills. Id.

Issue(s): “The Sixth Amendment to the United States Constitution provides the right to a jury trial in all criminal prosecutions. But there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision. To determine whether an offense is petty, courts look to the maximum penalty that could result from a conviction. Courts presume that an offense is petty when it carries a maximum term of imprisonment of six months or less . . . Stanfill El argues that the potential for an order of restitution in a substantial amount is enough to overcome that presumption.” Id. at *2 (internal quotations and citations omitted).

Held: “We have already rejected that argument. In Ballek, we held that an order requiring the defendant to pay monetary restitution did not qualify as additional punishment that would trigger the right to a jury trial under the Sixth Amendment, no matter how large the sum involved . . . . Stanfill El contends that Ballek is distinguishable because it involved a child support debt that had been previously adjudicated by a state court. Stanfill El's legal duty to pay restitution, he argues, hinged entirely on the fact-finder's determination of his guilt rather than a state-court adjudication. But the result we reached in Ballek did not depend upon the previous state-court judgment . . . . Accordingly, Stanfill El cannot rely on it to distinguish his case. Ballek controls, and the district court was correct when it relied on our holding in that case to reject Stanfill El’s Sixth Amendment argument.” Id. at *2 (internal quotations and citations omitted).

Of Note: AFPD Hester raises an interesting argument in Stanfill El. If the victim Carmin had just for a common law assault, Stanfill El would have been entitled to a jury trial under the Seventh Amendment. Id. at *3. Why doesn’t the Sixth Amendment provide for a jury trial when the same amount of money (in the form of restitution) is at stake? Judge Clifton undertakes some Founding Fathers analysis to explain why the Seventh doesn’t help here. Id. at *4 “Criminal restitution is not some newfangled effort to get around the Seventh Amendment,” id. (quotation and citation omitted) )(though it probably feels that way to Stanfill El).

How to Use: Federal Defender offices who handle petty offense dockets are familiar with the delicate “jury trial” dance fought in Stanfill El. On the one hand, it iss the rare case where the defense wants to give up a jury. On the other, the lower punishments required to knock out the jury trial right are attractive. In Stanfill El, Judge Clifton describes the analysis required to determine whether a petty offense defendant has the right to a trial by jury. Id. at *1. The question involves more than just jail time: a large fine or a long period of probation can trigger the right as well. Id.

                                               

Hon. Richard Kopf

For Further Reading: How should judges free-up Federal Public Defender resources, in light of the furloughs required by sequestration? Dismiss all illegal reentry charges. So opines District Judge Richard Kopf in a remarkable blog entry, reported here. 

  If you’ve been feeling battered and bruised in these Sixth Amendment / Sequestration battles, read Judge Kopf’s frank comments and take heart: we’re not alone in this fight.

Image of the Honorable Richard Kopf from: http://upload.wikimedia.org/wikipedia/en/c/c9/Richard_G._Kopf_District_Judge.jpg

Movie poster from “The Internship” from http://www.beyondhollywood.com/uploads/2013/04/The-Internship-2013-Movie-Poster.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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