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.