Despite a recent order by the Ninth Circuit Court of Appeals that Jared Lee Loughner, who is accused of killing six people and shooting another fourteen including Congress member, Gabrielle Giffords, not be forced to take psychiatric medication pending a Ninth Circuit hearing on the matter next month, doctors at the Medical Center for Federal Prisoners in Springfield, Missouri where Lorghner is housed by the Bureau of Prisons have begun medicating him again. According to the doctors he is suicidal and a danger to himself without the medication.

The order issued prior to the recommencement of forced medication said that there was no evidence that Loughner was a danger to himself or others. If he is now suicidal it may be a sufficient change in circumstances to allow forced medication. The Ninth Circuit, Friday denied an emergency request to enforce the preliminary injunction forbidding forced medication and suggested that any motion to forbid the current medication be made in the District Court. According to documents filed with the court Loughner asked a psychiatrist to kill him. He paced in circles in his cell, screamed loudly, cried for hours at a time and claimed to hear messages from a radio.

Loughner, who has been diagnosed as being schizophrenic and who is on suicide watch denies being suicidal.

Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

The Eighth Circuit Court of Appeals reversed the conviction of Marc Sean Wisecarver for deprecation of government property after he shot a hole through the engine of a government owned vehicle.

Wisecarver owned a one sixth undivided interest in a a piece of land on the Pine Ridge Indian Reservation near Manderson, South Dakota. He reqested permission to rent out his share. The BIA sent Duke Bourne, a soil conservationist to determine the rental value of the property. Wisecarver saw Bourne drive onto the property. He did not recognize Bourne or the government truck he was driving. He yelled and waved at the truck. Bourne continued driving along the interior of the fence, nearly hitting one of Wisecarver’s horses. When Bourne again ignored Wisecarver’s yelling at him, Wisecarver got his gun.

Bourne drove over to Wisecarver, but he refused to identify himself, giving Wisecarver a phone number he could call. Wisecarver ordered Bourne off the property without the government vehicle because he was afraid Bourne would drive the truck into himself or his horses. Bourne refused and Wisecarver shot a bullet into the car’s engine. Bourne then walked off the property.

Wisecarver was charged with assault on a government officer and deprecation of government property. During deliberations the jury requested further instruction on the deprecation charge. The Judge, after conferring with counsel that:

[y]ou are instructed that the shooting of the pickup truck would constitute ‘depredation’ under the statute 18 U.S.C. § 1361, unless you find that the
defendant did not use justifiable force to protect his person or property.

Shortly after the instruction was given the prosecutor pointed out that the instruction had a double negative in it and misstated the law. But the judge decided not to change the instruction.

The jury found him not guilty of assault but guilty of deprevation.

Wisecarver raised three issues on appeal. First he questioned the sufficiency of the evidence. Second, he asked that the conviction be reversed due to the erroneous instruction. Third he challenge his 36 month sentence.

The Eighth Circuit found that the only issue in contention was Wisecarver’s intent when he shot the gun, that is the issue of self defense and that there was insufficient evidence to show self defense as a matter of law. But it reversed the conviction because the jury instruction was clearly wrong and if the jury followed the instruction as given reversal was necessary. After reversing the conviction it did not consider the sentencing errors.

The First Circuit Court of Appeals upheld a finding of summary judgment in favor of the City of Sandown, New Hampshire, its former police chief and a police officer. Ralph Holder and his estranged wife attended their son’s soccer game. During the game it started to rain and Mr. Holder asked his wife if she had brought a long sleeve shirt for their son. She said she hadn’t. A verbal confrontation commenced. Eventually Ms Holder bumped her husband and he instinctively pushed her away.

Ms Holder called the police. When the officers arrived Ms Holder told them that her husband had pushed her. Mr. Holder then told the officers that his wife had initiated the verbal confrontation and that she made the initial contact. He urged them to talk to nearby witnesses. He was then arrested and charged with simple assault. After the arrest the officers spoke to a couple of witnesses. None of the witnesses saw the confrontation but one said he heard that Ms Holder initiated the dispute.

The trial court granted summary judgment and Mr. Holder appealed on Fourth Amendment grounds as applied to the states by the Fourteenth Amendment.

An arrest violates the Fourth Amendment if is not based on probable cause. Probable cause exists when

at the time of the arrest, the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Probable cause requires only a probability that the arrestee committee the crime. Certainty is not necessary.The officer’s decision needs only to be reasonable.

According to the court the officers have no duty to check out the suspect’s defenses. Once they decide that probable cause exists and they can do that solely on the allegation of the alleged victim, they do not have to talk to witnesses or otherwise investigate whether or not the suspect committed the offense.

Mr. Holder further argued that New Hampshire law requires the officer to determine who was the primary physical aggressor. The law states

an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer. When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. § 173-B:10, II.

But according to the First Circuit a state may impose restrictions on arrest greater than what is demanded by the Fourth Amendment. But the Federal court need not consider state law. It is limited to the requirements of the Fourth Amendment, Since the Fourth Amendment only requires that the officer determine whether probable cause exists and since based upon Ms Holder’s statement probable cause existed summary judgment was properly granted.

The charges against Mr. Holder were eventually dismissed. But he had to suffer the consequences of being arrested. Perhaps he spent some time in jail. He may have had to hire a lawyer. If he had money he may have had to pay for a bail bond. He could have had consequences on his job due to time missed either while in jail or attending court appearances. His wife may have gotten a restraining order preventing hem from seeing his son. His child support may have been raised if as a result of the arrest he was not able to share custody or have visitation with his son.

All of this could have been prevented if the police had done a thorough investigation before arresting Holder. As a result of the grant of summary judgment Holder is not entitled to any compensation for the poor investigation prior to his arrest.

Another police officer has been caught on a cell phone camera beating an unarmed person. San Jose officer Kenneth Siegel was called to an apartment where two roommates were fighting. He arrested Phuong Ho on assault charges. The officer claims that Ho resisted arrest but a third roommate photographed the arrest with his cell phone. It shows numerous hits with a metal baton. At least one of the hits occurred after another officer had placed Ho into handcuffs. While Siegel is beating Ho with the baton another officer is shooting him with a Taser.

Ho is a 20 year old Vietnamese-American student at San Jose State University. He got into a physical fight with a roommate after the roommate put soap on Ho’s steak.

This follows the killing of Oscar Grant by BART police officer Johannes Mehserle in nearby Oakland which was also photographed on cell phones. The shooting of Grant also occurred after he was in handcuffs. Mehserle is charged with murder. Likewise, a criminal investigation is being initiated into the shooting of Ho.

San Jose has a large Vietnamese-American community and many members of the community remain upset over the killing of a mentally ill Vietnamese-American, Daniel Pham, by a police officer in May.