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Tuesday, January 30, 2007

Ind. Decisions - 7th Circuit: "We are, however, distressed at the sloppiness with which the case has been handled by both sides." [Updated]

The 7th Circuit has issued an opinion today in an Indiana case. The facts [emphasis added]:

At 3:00 a.m. one morning, the defendant and his girlfriend left the Guvernment Bar and Lounge, a nightclub in downtown Indianapolis. The club was on the verge of closing for the night and other patrons were leaving, though we do not know how many. The front entrance to the club is on Market Street, and the couple left by that entrance and walked to an “alley” behind the club, though the satellite photograph appended to this opinion suggests that it is actually a parking lot. While there, the defendant fired six shots from a gun described in the record only as an FN Herstal pistol that holds 20 rounds of ammunition that can “penetrate up to 14 levels of body armor.” The shell casings were found in the parking lot. No one was injured. The club is only a couple of blocks from Monument Circle, the Times Square of Indianapolis (but a very tame and quiet Times Square), and is situated among buildings. There is no indication of the bullets’ trajectory or where they landed, though it seems undisputed that the defendant fired the shots into the air.

In U.S. v. Boyd (SD Ind., Judge Barker), a 10-page opinion, including a google satellite photo of a section of downtown Indianapolis furnished by the Court, Judge Posner writes:

The defendant pleaded guilty to being a felon in possession of a gun and was sentenced to 46 months in prison. The sentence was influenced by the district judge’s determination that the defendant had used the gun to commit another felony. A person who, “while armed with a deadly weapon,” “recklessly . . . performs . . . an act that creates a substantial risk of bodily injury to another person” (“recklessly” being defined as committing the act “in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct”) is guilty of a felony under Indiana law. Ind. Code §§ 35-41-2-2(c), 35-42-2-2(b), (c). * * *

[W]e do not think the judge committed a clear error or misinterpreted Indiana law in ruling that the defendant’s reckless action created a substantial risk of bodily harm.

We are, however, distressed at the sloppiness with which the case has been handled by both sides. Neither party attempted to quantify the risk created by the defendant’s conduct; and vague words such as “substantial” are not a satisfactory substitute for data, as we remarked in United States v. Chambers, No. 06-2405, 2007 WL 60874 (7th Cir. Jan. 9, 2007). Our Rutherford opinion, quoted earlier, examined statistics concerning the risks created by drunk driving, and there are published statistics on accidents from random shooting. See, e.g., Lawrence W. Sherman et al., “Stray Bullets and ‘Mushrooms’: Random Shootings of Bystanders in Four Cities, 1977-1988,” 5 J. Quantitative Criminology 297 (1989).

Less forgivably—for the enormous variety of the circumstances in which random shooting occurs may defeat efforts to estimate the probability that a given incident would result in injury—no satellite photo (available free of charge from Google) was placed in evidence to indicate the physical surroundings. Nor does the record specify the model FN Herstal that the defendant was using or the type of ammunition the gun contained. The judge made no finding concerning the number of persons on the streets near the shooting (another conflict in the evidence that she did not try to resolve) or whether any persons were in the alley when and where the shooting took place. There was also no evidence on whether there are apartment buildings as well as office buildings in the vicinity of the shooting.

Despite these gaps, we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

[Update] Don't miss Prof. Doug Berman's discussion of this decision in the Sentencing Law Blog.

Posted by Marcia Oddi on January 30, 2007 10:22 AM
Posted to Ind. (7th Cir.) Decisions