Patterico's Pontifications

6/20/2013

Justice Kagan Screws the Pooch on a Criminal Law Case Today

Filed under: General — Patterico @ 10:29 pm

I don’t have time to explain in detail why today’s Elena Kagan-penned opinion (.pdf) is a sloppy travesty. I’ll just note that this series of quotes is complete and utter nonsense:

Rather, it involves a simple discrepancy between generic burglary and the crime established in §459. The former requires an unlawful entry along the lines of breaking and entering. See 3 W. LaFave, Substantive Criminal Law §21.1(a) (2d ed. 2003) (hereinafter LaFave). The latter does not, and indeed covers simple shoplifting, as even the Government acknowledges.

. . . .

Whereas burglary statutes generally demand breaking and entering or similar conduct, California’s does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours.

. . . .

And indeed, we indicated that the very statute at issue here, §459, does not fit that bill because “California defines ‘burglary’ so broadly as to include shoplifting.”

Bull, bull, and bull.

Find 10 California criminal law practitioners. Ask each of them whether simple shoplifting, without more, is enough to establish a violation of Penal Code section 459.

If you find even one such person who answers that question “yes,” congratulations! You have found an incompetent attorney.

Every other attorney will tell you that the crime must show proof, beyond a reasonable doubt, that the defendant intended to steal or commit a felony BEFORE entering the location.

A business might implicitly consent to having members of the public enter the business to buy their goods. The business does not implicitly consent to people entering the business to steal things. That is not a “privileged” entry. Period. The California Supreme Court made this quite clear in a case cited by Justice Kagan, saying: one “who enters with the intention to commit a felony enters without an invitation.” Kagan’s attempt to characterize an entry with the intent to steal as “privileged” and “lawful” is pure crap.

And her statement that “burglary statutes generally demand breaking and entering or similar conduct” is, I strongly suspect, equally full of it. I hereby offer $50 to the first person who can prove that the majority of states require breaking and entering as an essential component of any crime that they call “burglary.” I don’t believe it for a second. I feel quite confident that most states’ statutes mirror California’s: they require proof that, upon entry, the criminal had the intent to steal or commit a crime (in California, a felony).

Collect your easy $50 in comments below.

Justice Kagan, your analysis is slipshod and inexcusably sloppy, and you suckered 7 other Justices into going along. I am ashamed of the Supreme Court today — with the exception of Justice Alito.

61 Comments

  1. I plan to let Kagan have it at greater length when I have time.

    JRM, weigh in here, will you?

    Comment by Patterico (9c670f) — 6/20/2013 @ 10:29 pm

  2. What the f6*&(k does “along the lines of” breaking and entering even mean?

    I would LOVE to get Kagan in a room, on tape, shackled and unable to run screaming from the room, and have her forced to answer my questions about her crap decision.

    Comment by Patterico (9c670f) — 6/20/2013 @ 10:31 pm

  3. sorry, Pat, but you are not allowed to abuse the mentally handicapped like that.

    even though HRH and i would be there with bells, popcorn, and boat drinks if you could.

    travesty is too kind a word for this.

    Comment by redc1c4 (403dff) — 6/20/2013 @ 10:59 pm

  4. oh, and, before someone else says something, i’d like to point out that the terms “Justice” and “Kagan” are mutually exclusive.

    and please, feel free to send my comments to the zampolits.

    another ten years in the camps means nothing to me.

    Comment by Ivan Denesovich (403dff) — 6/20/2013 @ 11:04 pm

  5. I really began to wake up to the Supreme Court just before the Obamacare passage. I started studying some of the history of their rulings. You know, I figured it might be a good idea to actually study up on SCOTUS and read some of their cases. Schenck v. United States, Korematsu v. United States…

    And you’re “ashamed”? Personally, I’m disgusted and repulsed. They’re as corrupt as the fiends and criminals we have sitting the Capitol building and the White House.

    Comment by Bets (717964) — 6/21/2013 @ 5:33 am

  6. hereby offer $50 to the first person who can prove that the majority of states require breaking and entering as an essential component of any crime that they call “burglary.”

    Burglary: Definition and Background
    Burglary is typically defined as the unlawful entry into almost any structure (not just a home or business) with the intent to commit any crime inside (not just theft/larceny). No physical breaking and entering is required; the offender may simply trespass through an open door. Unlike robbery, which involves use of force or fear to obtain another person’s property, there is usually no victim present during a burglary.

    For example, Dan enters Victor’s boathouse through an open window, intending to steal Victor’s boat. Finding the boat is gone, Dan returns home. Though he took nothing, Dan has committed burglary.

    The crime of burglary has been around for a long time. It originally developed under the common law, but states have incorporated the basic idea of burglary into their penal codes, albeit with some slight modifications. For instance, under the common law definition of burglary, the crime had to take place in the dwelling house of another at night. Most states have subsequently broadened the definition of burglary to include businesses and illegal entries during the day.

    Burglary developed to protect a person’s interest in their home and to prevent violence, not to protect against theft. Other laws criminalize the taking of property; instead, burglary is meant to safeguard the sanctity of a person’s home and to protect against the possible violence that could arise if someone discovers a burglar in their house.

    http://criminal.findlaw.com/criminal-charges/burglary-overview.html

    Comment by JD (b63a52) — 6/21/2013 @ 5:36 am

  7. At least she didn’t demand that it also be committed in the nightime.

    Illinois is similar to California. Enter with the intent to commit a felony or theft. It is based on the Model Penal Code so I imagine that many others’ states statutes are drafted likewise.

    Comment by nk (875f57) — 6/21/2013 @ 5:37 am

  8. From the Connecticut Statutes:

    53a-101 (a) A person is guilty of burglary in the first degree when (1) such person enters or remains unlawfully in a building with intent to commit a crime therein.

    Which would suggest that entering a store to purchase an item or just window shop, and then deciding to steal something, would be considered burglary in this state.

    Comment by LibraryGryffon (1996ab) — 6/21/2013 @ 5:46 am

  9. BTW, “breaking” does not mean crowbar. It’s breaking the plane of the threshold — stepping into the private space.

    Comment by nk (875f57) — 6/21/2013 @ 5:50 am

  10. Illinois is also “or without authority remains within”. Hypothetically, I could go to the store with $1.00 looking to buy a candybar, but the cheapest is $1.29 plus tax so I eat it right there and try to walk out. Burglary.

    Comment by nk (875f57) — 6/21/2013 @ 5:57 am

  11. From the Connecticut Statutes:

    53a-101 (a) A person is guilty of burglary in the first degree when (1) such person enters or remains unlawfully in a building with intent to commit a crime therein.

    Which would suggest that entering a store to purchase an item or just window shop, and then deciding to steal something, would be considered burglary in this state.

    That is interesting. If Connecticut’s statute were the statute in question, then, Kagan might have a point.

    But California’s statute requires entry with unlawful intent. This is typically shown, by the way, through admissions, a total lack of any method of payment or money combined with the theft, and/or possession upon entry of items (like a backpack) later used to conceal the stolen good(s).

    Comment by Patterico (9c670f) — 6/21/2013 @ 6:29 am

  12. Sounds like the Feds did a poor job of arguing this.

    This is rank ignorance of basic criminal law. It reminds me of when the Ninth Circuit thought “imprisonment in the state prison” meant a maximum term of one year, when every California criminal law practitioner knows it means three.

    Comment by Patterico (9c670f) — 6/21/2013 @ 6:37 am

  13. This is DC Circuit burglary per Bazelon, perhaps the “generic burglary” Kagan was referring to.

    Illinois rejected it. I can’t find the case to link it, but in a nutshell: Unlawful entry into a place where valuable property is stored creates a “permissible inference” for the trier of fact that the defendant intended to steal.

    Comment by nk (875f57) — 6/21/2013 @ 6:49 am

  14. Perhaps Justice Kagan and the others were mindful of this story from today’s Wall Street Journal:

    As Prisons Squeeze Budgets, GOP Rethinks Crime Focus
    By NEIL KING JR.

    GAINESVILLE, Ga.—Weeks after his election as Georgia governor in 2010, Nathan Deal was pulled aside by a conservative state lawmaker with urgent business to discuss.

    Rep. Jay Neal, a small-town pastor, said he had the seeds of a plan to cut Georgia’s swelling prison population, which was costing taxpayers over $1 billion a year. The governor-elect didn’t let Mr. Neal get far.

    “The minute I mentioned what I wanted to do, he jumped in with what he wanted to do,” Mr. Neal recalled. “And it turns out we were talking about the same thing.”

    That pairing of a pastor with a former prosecutor, both Republicans, helped pave the way for dramatic revamping of Georgia’s criminal code. New rules enacted over the past two legislative sessions are steering nonviolent offenders away from prison, emphasizing rehabilitation over jail time, and lessening the penalties for many drug and property crimes.

    Georgia is the latest example of a Republican-led state drive to replace tough-on-crime dictums of the 1990s with a more forgiving and nuanced set of laws. Leading the charge in states such as Texas, Ohio, Kentucky, South Carolina and South Dakota are GOP lawmakers—and in most cases Republican governors—who once favored stiff prison terms aimed at driving down crime.

    By declaring that Mr Descamp’s sentence enhancement under the Armed Career Criminal Act was invalid, the Justices were simply attempting to save the state money.

    Comment by The Dana who isn't an attorney (3e4784) — 6/21/2013 @ 7:19 am

  15. Petitioner Michael Descamps was convicted of being afelon in possession of a firearm, in violation of 18 U. S. C.§922(g). That unadorned offense carries a maximum penalty of 10 years in prison. The Government, however, sought an enhanced sentence under ACCA, based on Descamps’ prior state convictions for burglary, robbery,and felony harassment.

    You could be right, Dana. Could be Kagan does not like mandatory minimums.

    Comment by nk (875f57) — 6/21/2013 @ 7:29 am

  16. Justice Kagan Screws the Pooch

    Bad imagery. Once it’s implanted in my brain, I can’t unremember it. Sigh.

    Comment by Diffus (48ae73) — 6/21/2013 @ 7:29 am

  17. What’s going to happen here is there will be a new cottage industry: people all across the country are going to start bringing challenges to their enhanced sentences because they were previously convicted of burglary under a statute equivalent to California’s. Kagan has essentially written burglary out of the career criminal statute because she thinks common law burglary (breaking and entering) is still required in most states. Once they start getting petitions from people all over the country whose sentences were enhanced based on convictions for fundamentally identical burglary statutes, THEN they will realize that California’s burglary statute really did encompass generic burglary.

    But then it will be too late.

    Comment by Patterico (9c670f) — 6/21/2013 @ 7:33 am

  18. I hope I can do a longer post on this that more thoroughly explains the decision and why it is so problematic.

    Comment by Patterico (9c670f) — 6/21/2013 @ 7:35 am

  19. Do I get $50? Lol

    Comment by JD (b63a52) — 6/21/2013 @ 7:48 am

  20. For proving I was right?

    Mmmmm . . . no.

    :)

    Comment by Patterico (9c670f) — 6/21/2013 @ 7:52 am

  21. Never hurts to ask. I did not want to say no for you.

    Comment by JD (b63a52) — 6/21/2013 @ 8:05 am

  22. Greetings:

    I think that this may well be what adults sometime refer to as a mute point, what with California releasing convicted criminals from its penal colonies hand over fist in order to please our Federal masters.

    Comment by 11B40 (a52593) — 6/21/2013 @ 8:47 am

  23. Or is it because it cannot afford to pay the rent?

    Comment by nk (875f57) — 6/21/2013 @ 9:00 am

  24. Paterico: Find 10 California criminal law practitioners. Ask each of them whether simple shoplifting, without more, is enough to establish a violation of Penal Code section 459.

    If you find even one such person who answers that question “yes,” congratulations! You have found an incompetent attorney.

    http://www.shouselaw.com/burglary.html

    Second degree burglary is most frequently seen in connection with Penal Code 484 shoplifting offenses.

    Burglary doesn’t require the element of trespass according to this lawyer.

    Apparently, shoplifting could be burglary if it could be proven that the person went into the store already with the intention of stealing.

    And that, I would think, might be proven by a track record of stealinmg (let’s say TIDE) the same day from other stores and/or being prepared to take it away, or having made prior or continuing arrangements to sell it.

    A jury might very well conclude that the intention to shoplift was already formed at the time the person entered the store.

    There might be some other telltale indicattions, like acting in a group. Doing two or more stores the same way in in the same day would seem to be very strong proof and there could also be the testimony of accomplices.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 9:02 am

  25. Maybe the problem is Taylor v. United States, 495 U. S. 575 (1990).

    Kagan: “But if the statute sweeps more broadly than the generic crime, a conviction underthat law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts.”

    This is ridiculous law. It means convictions of some offeneses in certain states do not count, because the statute includes crimes that fall both into and outside of the federal category.

    If Congress imagined that, it would have written the law differently, because it didn;’t intend to create this absurdity.

    And there;s not all that much that would have to be different for the California law to apply.

    Apparently all that California would need to do is rewrite the language – but only the language – of the offense of burglary for it to be used as a predicate offense.

    It would have to carefully distinguish between burglary with trespass, and burglary that did not include trespassing, and a person would be convicted of or plead guilty to one or the other or both. But only if the burglary including trespassing would it count as a predicate offense.

    The difference being that then a California court, and not a federal court, would determine in what category the particular conviction of burglary belongs. The Supreme Court doesn’t want federal courts doing that sort of thing.

    .

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 9:19 am

  26. Comment by LibraryGryffon (1996ab) — 6/21/2013 @ 5:46 am

    Which would suggest that entering a store to purchase an item or just window shop, and then deciding to steal something, would be considered burglary in this state.

    No, that’s not right. The intention has to be there from the beginning.

    While unlawful entry creates a presumption of an intent to steal, lawful entry does not completely eliminate that possibility.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 9:21 am

  27. It could be Kagan and the Supreme Court s completely wrong about what the generic law of burglary requires. But the real problem is that they identified a problem of how comparable different statutes are.

    You would think Congress neglected to consider this. But maybe Congress assumed a case like the 1990 case would be decided the other way.

    Federal courts are allowed to look only at the law not the facts.

    Now it could haardly be that every thing that satisfies the elements of certain named felonies in ONE STATE, satisfies them in all states.

    Every state, or state court, will addresses various issues differently.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 9:28 am

  28. I think that this may well be what adults sometime refer to as a mute point…

    I doubt it. Adults refer to a “moot point”, not one that has no powers of speech.

    Comment by Rob Crawford (6c262f) — 6/21/2013 @ 9:40 am

  29. Burglary doesn’t require the element of trespass according to this lawyer.

    Sure it does.

    Apparently, shoplifting could be burglary if it could be proven that the person went into the store already with the intention of stealing.

    Um, yes. That is trespassing. You don’t imagine the owner has invited shoplifters to enter his property, do you?

    Comment by Milhouse (3d0df0) — 6/21/2013 @ 10:15 am

  30. Justice Kagan, your analysis is slipshod and inexcusably sloppy, and you suckered 7 other Justices into going along. I am ashamed of the Supreme Court today — with the exception of Justice Alito.

    No need to be ashamed of Thomas. He was always going to vote to overturn, because he believes all sentencing enhancements need to be decided by a jury.

    Comment by Milhouse (3d0df0) — 6/21/2013 @ 10:19 am

  31. “Burglary doesn’t require the element of trespass according to this lawyer.”

    Milhouse: Sure it does.

    “Apparently, shoplifting could be burglary if it could be proven that the person went into the store already with the intention of stealing. ”

    Milhouse: Um, yes. That is trespassing. You don’t imagine the owner has invited shoplifters to enter his property, do you?

    The owner invited people. He even has a right to make exceotions for people he is suspicious of.

    But if someone entered with the intention of shoplifting, and didn’t in fact shoplift maybe because they were watched, or because what they wanted to steal wasn’t there, or was protected, or for some other reaosn it can’t be claimed they were trespassing.

    Someone is either admitted or not. This is absolute. To be excluded a person must be told.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 10:24 am

  32. I think James O’Keefe was accused of trespassing and maybe entry under false pretences maybe could be.

    I am also wondering about the definition of “violent” – I suppose even shoplifting has an element of force.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 10:42 am

  33. I believe that the “remaining” clause noted in post #8 refers to teh practice of someone entering a business during regular business hours and hiding so as to remain after closing time, then collecting that which they wish to have but not pay for and leave with it.

    The “remaing” clause saves the prosecution having to prove just when the person formulated the idea of theft. Under the (pre-Kagan era) law, entering to legitimately shop and formulating the idea to steal instead would take burglary off the table.

    Comment by gramps (13e453) — 6/21/2013 @ 11:12 am

  34. The owner invited people. He even has a right to make exceotions for people he is suspicious of.

    But if someone entered with the intention of shoplifting, and didn’t in fact shoplift maybe because they were watched, or because what they wanted to steal wasn’t there, or was protected, or for some other reaosn it can’t be claimed they were trespassing.

    Of course it can, and is. As Patterico quoted from the CA Supreme Court, one “who enters with the intention to commit a felony enters without an invitation.”

    Someone is either admitted or not. This is absolute. To be excluded a person must be told.

    Nonsense. He was never invited in the first place.

    Comment by Milhouse (3d0df0) — 6/21/2013 @ 11:49 am

  35. here in Illinois it’s very common for people going into Wal-Mart, for example, with the intent to steal, to be charged with burglary. In fact, that’s the very definition of a burglary. Tell me again where Justice Kagan got her law degree–Cracker jack’s box?

    Comment by rochf (f3fbb0) — 6/21/2013 @ 1:03 pm

  36. If you want to charge shoplifters with a serious felony, make shoplifting a felony instead of engaging in this absurd agrument as to why you could technically charge shoplifters with burglary. I am sure our wise and evenhanded prosecutors would fairly determine which shoplifters to charge with burglary. Sheeeeesh!!!

    Comment by Geoff (5a4d76) — 6/21/2013 @ 1:08 pm

  37. Greetings: especially Rob Crawford @ 28

    Thank you. You have refreshed a part of my education.

    Comment by 11B40 (ae75e1) — 6/21/2013 @ 2:13 pm

  38. From http://criminal.findlaw.com/criminal-charges/burglary-overview.html cited above by 6 in comment 6:

    If a person enters a store during its normal retail hours and steals an item, the person has committed a shoplifting crime, and not a burglary. If, on the other hand, the person waits until after the store has closed, picks the lock on the front door and steals the same item, then a burglary has occurred.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 2:27 pm

  39. ….if an individual uses fraud – which is a crime – to gain after-hours entrance to a building to view a piece of art, no burglary has taken place since the only crime that occurred was the fraud used to gain entrance to the building. Of course, taking the art would elevate the crime to one of burglary. The timing of the intent also becomes important when determining the degree of a burglary charge. For instance, if a person intended to commit the crime in question before they broke in to the building, then most states will consider this to be a burglary of the first degree (more serious). If the person broke into a building and only subsequently formed the intent to commit a crime, most states will classify the burglary as second degree.

    Comment by Sammy Finkelman (d22d64) — 6/21/2013 @ 2:28 pm

  40. This reminds me of those transvestite theft rings that were robbing high-end women’s clothing and jewelry stores.

    Entering such a store dressed in drag while those theft rings were in operation would seem to amusingly qualify.

    Comment by luagha (5cbe06) — 6/21/2013 @ 3:03 pm

  41. If a person enters a store during its normal retail hours and steals an item, the person has committed a shoplifting crime, and not a burglary.

    That is true, unless they entered for the purpose of stealing, in which case the entry itself is a trespass. Do you imagine a thief is more welcome at some hours than at others?! That he has been invited to case the joint during retail hours?! Which owner, when opening the doors in the morning, has such an intention? From what act of the owner could such an invitation be inferred?

    Comment by Milhouse (3d0df0) — 6/21/2013 @ 4:51 pm

  42. So if Obama entered the WHITE HOUSE with the intention of destroying America…………………………..

    Kagan is a clown. She even looks like a jolly elf.

    Comment by Catholic Dana (694db4) — 6/21/2013 @ 4:56 pm

  43. Under Texas law you commit burglary by breaking the barrier of entrance. It only requires breaking the plane of restriction. Hence, you can walk thru an open door or unlocked door, window, etc. of a house or business (closed) with the intent of theft or other felony and it is classed as burglary. Extend your arm thru the open window of a car to steal, and you have committed burglary of a motor vehicle.

    Once, arrested a rapist for burglary of a habitation. Burglary of a habitation is a 1st class felony in Texas (or was then), while Aggravated Sexual Assault was only a 2nd class felony. DA charged the same, and he was convicted.

    Comment by peedoffamerican (ee1de0) — 6/21/2013 @ 5:07 pm

  44. I would LOVE to get Kagan in a room, on tape, shackled and unable to run screaming from the room, and have her forced to answer my questions about her crap decision.

    Comment by Patterico (9c670f) — 6/20/2013 @ 10:31 pm

    Careful there Pat! Lotsa liberals love kinky sex games. :lol:

    Comment by peedoffamerican (ee1de0) — 6/21/2013 @ 5:08 pm

  45. Then you would have to put up with her stalking you while wearing leather bra and panties. Eeeeewwwwwwwww! Now I need some brain bleach! That vision is utterly horrible!

    Comment by peedoffamerican (ee1de0) — 6/21/2013 @ 5:16 pm

  46. This is similar to Souter’s opinion 10 or so years ago in 4th amend case involving permission to search a residence. One of the residents said no, the second resident (the girl friend) said yes. Souter based his reasoning on applicable state law to opinion that the search was not permissible under the 4th. However, he got state law wrong.

    Comment by joe (93323e) — 6/21/2013 @ 6:25 pm

  47. Wouldn’t it be discrimination for a store, which is open to the general public, to say someone is not invited in and is trespassing, before they commit the crime of shoplifting? Doesn’t that open the door for other discriminatory exclusions: “that person doesn’t look like they can afford the merchandise in my store, remove the trespasser” or “a wheelchair can be used to hide merchandise by a shoplifter, so wheelchairs are not welcome in this store.” How do the laws work in this regard?

    Comment by Jersey Woman (a1d9be) — 6/21/2013 @ 7:22 pm

  48. Jersey Woman, Kagan is a LIBTARD, she is completely ideological. No thinking necessary. Just follow the other sheep.

    Comment by Gus (694db4) — 6/21/2013 @ 7:24 pm

  49. Wouldn’t it be discrimination for a store, which is open to the general public, to say someone is not invited in and is trespassing, before they commit the crime of shoplifting? Doesn’t that open the door for other discriminatory exclusions: “that person doesn’t look like they can afford the merchandise in my store, remove the trespasser” or “a wheelchair can be used to hide merchandise by a shoplifter, so wheelchairs are not welcome in this store.” How do the laws work in this regard?

    I thought it was clear. Everyone is implicitly invited except those who have the intent to commit a crime while inside. We may not be able to determine who they are in advance of the crime — as is the case with most crimes — but after the fact we may have evidence that establishes their unlawful intent to enter. In such cases, it is burglary, because who would say the shopkeeper implicitly invites thieves?

    Comment by Patterico (9c670f) — 6/21/2013 @ 7:39 pm

  50. Just as James O’Keefe exposed the left wing hypocrite regarding homeless people, I imagine Elena Kagan would be first to shout “Stop, thief burglar !” if someone stole from her home or office, despite having met her established legal definition of being “invited” into the building. (i.e., a party at her home, or a service repairman, or even someone who is legally attending a Supreme Court function.)

    Comment by Elephant Stone (99328f) — 6/21/2013 @ 7:58 pm

  51. I always thought a multistate bar exam question should be something like:

    X, a board member of the publicly traded Widget corporation, just came from a private company meeting where he learned non-public information that all shares of Widget will be purchased by Mega-widget at 200% of the current stock price. X knows this information will be released to the public in 15 minutes. X decides to illegally buy 10,000 shares of Widget, hoping to make a quick profit. Walking through a residential area, X finds his smart phone is non-functional, but sees the light of a computer monitor through the screen door of a private home. X opens the screen door and slips in, uses the computer to go to website of his broker, and buys 10,000 shares of Widget.

    X has committed:

    a) Burglary
    b)…

    It’s not a tough question, but I think I’m right that this is common-law burglary, as he used force to enter with the intent, once inside, to commit a (non-commonlaw) felony.

    Comment by Brian (cd9cf2) — 6/21/2013 @ 11:58 pm

  52. Is it nighttime, Brian? ;)

    Comment by nk (875f57) — 6/22/2013 @ 6:14 am

  53. Milhouse gave us the hint in this case:

    No need to be ashamed of Thomas. He was always going to vote to overturn, because he believes all sentencing enhancements need to be decided by a jury.
    Comment by Milhouse (3d0df0) — 6/21/2013 @ 10:19 am

    The courts are not allowed to conduct a factual inquiry into the underlying facts of a prior conviction used to enhance a sentence. The conviction has to fit the requirements of the enhancement statute on its face. Are all Section 459 burglaries violent offenses, as ACCA seems to intend? I would say some are not, since entry can be accomplished without force, threat of force, or fraud, and not all thefts are felonies.

    Sorry, ACCA, or as Big Time Rush would say Ach, Ach, Ach, ACCA … Oh, Oh, Oh, Oh. ;)

    Comment by nk (875f57) — 6/22/2013 @ 6:39 am

  54. In practical application the Connecticut statute which mention “unlawfully remain” is used to cover those who enter a business during business hours and secret themselves on the premises when they close for the purpose of committing a crime.

    A related statute also specifically mentions businesses and public libraries as establishments covered.

    Comment by Have Blue (7d2a7d) — 6/22/2013 @ 7:50 am

  55. Hey I’m not banned any longer (Don’t know that I was banned just was not able to comment.)

    Connecticut also enlarged its definition of “burglary tools” to include booster bags (designed to conceal merchandise and/or defeat the proximity theft sensors), and items used to remove proximity sensor tags from merchandise.

    (I always found the inclusion of libraries specifically in the statue amusing because when I was eleven I was reading in the basement reading room at the local library when they closed. Was about two hours before I realized no one else was anywhere in the building. Not wanting to set off the alarm I called home. My parents ended up calling the librarian who came back to let me out.)

    Comment by Have Blue (7d2a7d) — 6/22/2013 @ 8:12 am

  56. Lurking with intent to read. Tsk, tsk.

    Comment by nk (875f57) — 6/22/2013 @ 8:43 am

  57. Someone should have consulted the rulings of all 50 states to see if there are convictions for “shoplifting” (the word they disingenuously use to refer to stealing after entry with intent to steal, though the word itself connotes nothing about the intent of the perpetrator upon entry) under the burglary statutes of most states.

    Judging from the poor quality of the oral argument by the Government, I suspect they did no such thing. Nor did any of the Justices.

    They have written burglary right out of the statute. Even a criminal who breaks and enters a home in the middle of the night will not be considered a burglar for purposes of this enhancement, as long as he was convicted in a state that allows a burglary conviction when someone unlawfully enters a business with the intent to steal. Which, I contend, is probably the majority of states in the union.

    Again: this means that Kagan and her unwitting dupe Justices have basically written burglary out of the enhancement statute.

    Sound the siren. I see a tidal wave on the horizon! A tidal wave of petitions from thugs looking to lower their sentences based on this crap decision.

    Comment by Patterico (9c670f) — 6/22/2013 @ 9:02 am

  58. All the members of the court seem to agree about the shoplifting charge.

    One interesting thing (or amazing thing) in the opinion is the statement that California might have won its case, like Oregon did, if it has used a different argument: (Footnote 6 on page 22:

    6 The Government here forfeited an alternative argument that §459 qualifies as a predicate offense under ACCA’s “residual clause,” which covers statutes “involv[ing] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).

    We express no view on that argument’s merits.

    Compare United States v. Mayer, 560 F. 3d 948, 960–963 (CA9 2009) (holding that Oregon’s burglary statute falls within the residual clause, even though it doesnot include all of generic burglary’s elements), with id., at 951 (Kozinski, C. J., dissenting from denial of rehearing en banc) (arguingthat the panel opinion “is a train wreck in the making”).

    Comment by Sammy Finkelman (6f9f42) — 6/23/2013 @ 12:41 pm

  59. I think one way the court got into trouble, was that – way back when – they declared that the kind of burglary covered by the law was “generic burglary” but there wa snbo such provision in the law as enacted.

    ACCA defines a “violent felony” to include a “burglary” that is “punishable by imprisonment for a term exceeding one year,” §924(e)(2)(B),

    Congress said anything called burglary, if it carried a potential sentence of more than one year, was enough to make possible a sentence enhancement. Burglasry seems to be singled out for attention because it is not necessarily a violent crime or one carryinbg a threat of violence.

    The need to distinguish between generic burglary and state law burglary seems to be a court created distinction, and they may not be doing that with other crimes.

    Comment by Sammy Finkelman (6f9f42) — 6/23/2013 @ 12:50 pm

  60. One point the courtt made struck me as important and this affected Justice Kennedy too: In a plea bargain the defendant would have little reason to irk a prosecuytor by squabbling over a detail that did not affect the crime or sentence. But he thought it was bad that they were forcing state legislatures or the federal government to reqrite the law.

    Everybody seems to have agreed that in point of fact descammps had committed generic burglary.

    But the court said facts don’t matter – only determinations by a state court do. They could go so far, and not further at looking beyond the bare crime as defined in law. Justice Alito said the distinctions they were making between the situation where you were dealing with alternative methods of a crime and how broad the elements of a crime were, weren’t real.

    Comment by Sammy Finkelman (6f9f42) — 6/23/2013 @ 12:57 pm

  61. When I worked retail in Sacramento County in the 1980s, shoplifters were charged with burglary under California Penal Code 459 if the suspect did not possess on his or her person the means to purchase the merchandise. The lack of means demonstrated intent to enter unlawfully into the business, thus the 459 charge.

    My employer also pursued civil damages to help defray security costs. We had a form letter offering settlement of our (unfiled) lawsuit, payable in monthly installments.

    Comment by David (666954) — 6/23/2013 @ 10:03 pm

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