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Joe's Copy of Zittrain Torts Casebook [alpha]
  • 1 XXIII. Conclusion

    • 1.1 United States v. Angelos--"The Draconian Sentencing Statute"

      Should courts apply statutes which seem to create grossly unjust outcomes?

      1
      345 F.Supp.2d 1227 (2004)
      2
      UNITED STATES of America, Plaintiff,
      v.
      Weldon ANGELOS, Defendant.
      3
      No. 2:-02-CR-00708PGC.
      4

      United States District Court, D. Utah, Central Division.

      5
      November 16, 2004.
      6

      1229*1229 Jeffrey B. Sklaroff, Harry H. Rimm, Greenberg Traurig LLP, New York, NY, amicus.

      7

      Jerome H. Mooney, Mooney Law Firm, Salt Lake City, UT, for Defendant.

      8

      Richard W. Daynes, Robert A. Lund, U.S. Attorney's Office, for Plaintiff.

      9

      MEMORANDUM OPINION AND ODER IMPOSING DENYING MTION TO FIND 18 U.S.C. § 924(c) UNCONSTITUTIONAL, IMPOSING SENTENCE, AND RECOMMENING EXECUTIVE CLEMENCY

      10

      CASSELL, District Judge.

      12
      TABLE OF CONTENTS
      13
        Introduction ............................................................................1230
          I. Factual Background ..............................................................1231
          II. Legislative History and Judicial Interpretation of § 924(c) ...............1233
          III. Mr. Angelos' Equal Protection Challenge to the Statute ..........................1235
            A. Equal Protection Review of Criminal Statutes .................................1235
              1. General Equal Protection Principles .......................................1235
              2. The Court's Obligation to Search for a Rational Basis .....................1237
            B. The Irrationality of § 924(c) ...........................................1239
              1. Mr. Angelos Effectively Receives a Life Sentence Under § 924(c) ......1239
              2. Unjust Punishment from § 924(c) ......................................1239
              3. Irrational Classifications ................................................1243
                a. Classifications Between Offenses .......................................1243
                b. Irrational Classifications Between Offenders ...........................1248
              4. Demeaning Victims of Actual Violence and Creating the Risk of Backlash.................................................................1251
            C. Justifications for § 924(c) ..............................................1252
          IV. Cruel and Unusual Punishment .....................................................1256
            A. Mr. Angelos' Offenses and the Contemplated Penalty...........................1257
            B. Comparison to Penalties for Other Offenses ....................................1258
            C. Comparison to Other Jurisdictions .............................................1259
            D. Application of the Harmelin Factors in Light of Davis........................1259
          V. Calculating the Sentence .........................................................1260
          VI. Recommendations to Other Branches of Government..................................1261
            A. Recommendation for Executive Commutation ......................................1261 1230*1230
            B. Recommendation for Legislative Reform............................................1262
        CONCLUSION.............................................................................1263

      15
      Introduction
      16

      Defendant Weldon Angelos stands now before the court for sentencing. He is a twenty-four-year-old first offender who is a successful music executive with two young children. Because he was convicted of dealing marijuana and related offenses, both the government and the defense agree that Mr. Angelos should serve about six to eight years in prison. But there are three additional firearms offenses for which the court must also impose sentence. Two of those offenses occurred when Mr. Angelos earned a handgun to two $350 marijuana deals; the third when police found several additional handguns at his home when they executed a search warrant. For these three acts of possessing (not using or even displaying) these guns, the government insists that Mr. Angelos should essentially spend the rest of his life in prison. Specifically, the government urges the court to sentence Mr. Angelos to a prison term of no less than 61½ years— six years and a half (or more) for drug dealing followed by 55 years for three counts of possessing a firearm in connection with a drug offense. In support of its position, the government relies on a statute—18U.S.C. § 924(c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and twenty-five years for each subsequent time. Under § 924(c), the three counts produce 55 years of additional punishment for carrying a firearm.

      17

      The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55-year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal "three strikes" provision. At the same time, however, this 55-year additional sentence is decreed by § 924(c).

      18

      The court's role in evaluating § 924(c) is quite limited. The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the 55 year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriate criminal penalties. Under the controlling case law, the court must find either that a statute has no conceivable justification or is so grossly disproportionate to the crime that no reasonable argument can be made its behalf. If the court is to fairly apply these precedents in this case, it must reject Mr. Angelos' constitutional challenges. Accordingly, the court sentences Mr. Angelos to a prison term of 55 years and one day, the minimum that the law allows.

      19

      To correct what appears to be an unjust sentence, the court also calls on the President—in whom our Constitution reposes the power to correct unduly harsh sentences—tocommute Mr. Angelos' sentence to something that is more in accord with just and rational punishment. In particular, the court recommends that the Presidddent 1231*1231 commute Mr. Angelos' sentence to no more than 18 years in prison, the average sentence that the jurors in this case recommended. In addition, the court also calls on Congress to modify § 924(c) so that its harsh provisions for 25-year multiple sentences apply only to true recidivist drug offenders—those who have been sent to prison and failed to learn their lesson. Because of the complexity of these conclusions, the court will set out their basis at some length.

      21
      I. Factual Background
      22

      Weldon Angelos is twenty-four years old. He was born on July 16, 1979, in Salt Lake City, Utah. He was raised in the Salt Lake City area by his father, Mr. James B. Angelos, with only minimal contact with his mother. Mr. Angelos has two young children by Ms. Zandrah Uyan: six-year-old Anthony and five-year-old Jessie. Before his arrest Mr. Angelos had achieved some success in the music industry. He started Extravagant Records, a label that produces rap and hip hop music. He had woi'ked with prominent hip hop musicians, including Snoop Dogg, on the "beats" to various songs and was preparing to record his own album.

      23

      The critical events in this case are three "controlled buys" of marijuana by a government informant from Mr. Angelos. On May 10, 2002, Mr. Angelos met with the informant, Ronnie Lazalde, and arranged a sale of marijuana. On May 21, 2002, Mr. Angelos completed a sale of a eight ounces of marijuana to Lazalde for $350. Lazalde observed Mr. Angelos' Glock pistol by the center console of his car. This drug deal formed the basis for the first § 924(c) count.

      24

      During a second controlled buy with Lazalde, on June 4, 2002, Mr. Angelos lifted his pant leg to show him the Glock in an ankle holster. Lazalde again purchased approximately eight ounces of marijuana for $350. This deal formed the basis for the second § 924(c) count.

      25

      A third controlled buy occurred on June 18, 2002, with Mr. Angelos again selling Lazalde eight ounces of marijuana for $350. There was no direct evidence of a gun at this transaction, so no § 924(c) count was charged.

      26

      On November 15, 2003, police officers arrested Mr. Angelos at his apartment pursuant to a warrant. Mr. Angelos consented to a search. The search revealed a briefcase which contained $18,040, a handgun, and two opiate suckers. Officers also discovered two bags which contained approximately three pounds of marijuana. Officers also recovered two other guns in a locked safe, one of which was confirmed as stolen. Searches at other locations, including the apartment of Mr. Angelos' girlfriend, turned up several duffle bags with marijuana residue, two more guns, and additional cash.

      27

      The original indictment issued against Mr. Angelos contained three counts of distribution of marijuana,[1] one § 924(c) count for the firearm at the first controlled buy, and two other lesser charges. Plea negotiations began between the government and Mr. Angelos. On January 20, 2003, the government told Mr. Angelos, through counsel, that if he pled guilty to the drug distribution count and the § 924(c) count, the government would agree to drop all other charges, not supersede the indictment with additional counts, and recommend a prison sentence of 15 years. The government made clear to Mr. Angelos that if he rejected the offer, the government would obtain a new superseding indictment adding several § 924(c) counts that could lead to Mr. Angelos facing more than 100 years of mandatory prison time. 1232*1232 In short, Mr. Angelos faced the choice of accepting 15 years in prison or insisting on a trial by jury at the risk of a life sentence. Ultimately, Mr. Angelos rejected the offer and decided to go to trial. The government then obtained two superseding indictments, eventually charging twenty total counts, including five § 924(c) counts which alone carried a potential minimum mandatory sentence of 105 years. The five § 924(c) counts consisted of two counts for the Glock seen at the two controlled buys, one count for three handguns found at his home, and two more counts for the two guns found at the home of Mr. Angelos' girlfriend.

      28

      Perhaps recognizing the gravity of the situation, Mr. Angelos tried to reopen plea negotiations, offering to plea to one count of drug distribution, one § 924(c) count, and one money laundering count. The government refused his offer, and the case proceeded to trial. The jury found Mr. Angelos guilty on sixteen counts, including three § 924(c) counts: two counts for the Glock seen at the two controlled buys and a third count for the three handguns at Mr. Angelos' home. The jury found him not guilty on three counts—including the two additional § 924(c) counts for the two guns at his girlfriends' home. (The court dismissed one other minor count.)

      29

      Mr. Angelos' sentence is presumptively governed by the Federal Sentencing Guidelines. Under governing Guideline provisions, the bottom line is that all counts but the three § 924(c) counts combine to create a total offense level of 28.[2] Because Mr. Angelos has no significant prior criminal history, he is treated as first-time offender (a criminal history category I) under the Guidelines. The prescribed Guidelines' sentence for Mr. Angelos for everything but the § 924(c) counts is 78 to 97 months.

      30

      After the Guideline sentence is imposed, however, the court must then add the § 924(c) counts. Section 924(c) prescribes a five-year mandatory minimum for a first conviction, and 25 years for each subsequent conviction.[3] This means that Mr. Angelos is facing 55 years (660 months) of mandatory time for the § 924(c) convictions. In addition, § 924(c) mandates that these 55 years run consecutively to any other time imposed.[4] As a consequence, the minimum sentence that the court can impose on Mr. Angelos is 61½ years—6½ years (78 months) for the 13 counts under the Guidelines and 55 consecutive years for the three § 924 convictions. The federal system does not provide the possibility of parole, but instead provides only a modest "good behavior" credit of approximately 15 percent of the sentence. Assuming good behavior, Mr. Angelos' sentence will be reduced to "only" 55 years, meaning he could be released when he is 78 years old.

      31

      Mr. Angelos challenges this presumptive sentence on two grounds. His main argument is that § 924(c) is unconstitutional as applied to him, either because the additional 55-year sentence is irrational punishment that violates equal protection principles or is cruel and unusual punishment that violates the Cruel and Unusual Punishment Clause. His other argument is that the 78 to 97 month Guidelines sentence is unconstitutional under Blakely v. Washington[5] because a jury did not find the facts underlying the Guidelines calculation. The court will first address his constitutional challenges to § 924(c), then his challenge to the Guidelines sentence.

      33
      1233*1233 II. Legislative History and Judicial Interpretation of § 924(c)
      34

      Before turning to Mr. Angelos' specific challenges to § 924(c), it is helpful to understand the history of the statute. Title 18 U.S.C. § 924(c) was proposed and enacted in a single day as an amendment to the Gun Control Act of 1968 enacted following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy. Congress intended the Act to address the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime."[6] Because § 924(c) was offered as a floor amendment, there are no congressional hearings or committee reports regarding its original purpose,[7] and the court is left only with a few statements made during floor debate.[8] For example, Representative Poff, the sponsor of the amendment, stated that the law's purpose was to "persuade the man tempted to commit a Federal felony to leave his gun at home."[9]

      35

      As originally enacted, § 924(c) gave judges considerable discretion in sentencing and was not nearly as harsh as it has become. When passed in 1968, § 924(c) imposed an enhancement of "not less than one year nor more than ten years" for the person who "uses a firearm to commit any felony for which he may be prosecuted in a court of the United States" or "carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States." [10] If the person was convicted of a "second or subsequent" violation of § 924(c), the additional penalty was "not less than 2 nor more than 25 years," which could not run "concurrently with any term of imprisonment imposed for the commission of such felony." [11] In the 36 years since its passage, the penalties attached to § 924(c) have been made continually harsher either by judicial interpretation or congressional action.

      36

      One of the first questions involving the provision was whether a defendant could be sentenced under § 924(c) where the underlying felony statute already included an enhancement for use of a firearm. In 1972 in Simpson v. United States,[12] the Supreme Court, relying on floor statements from Representative Poff, held that "the purpose of § 924(c) is already served whenever the substantive federal offense provides enhanced punishment for the use of a dangerous weapon" and that "to construe the statute to allow the additional sentence authorized by § 924(c) to be pyramided upon a sentence already enhanced under § 2113(c) would violate the established rule that `ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.'"[13] In 1980 in Busic v. United States,[14] the Court reaffirmed its decision in Simpson and went one step further, holding that prosecutors could not file a § 924(c) count instead of the enhancement provided for in the underlying 1234*1234 federal statute. Supporting its conclusion, the Court noted that in 1971 the Department of Justice had advised prosecutors not to proceed under § 924(c) if the predicate felony statute provided for "`increased penalties where a firearm was used in the commission of the offense.'" [15]

      37

      In response to Simpson and Busic, in 1984 Congress amended § 924(c) "so that its sentencing enhancement would apply regardless of whether the underlying felony statute `provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.'" [16] The 1984 amendment also established a five-year mandatory minimum for use of a firearm during commission of a crime of violence.[17]

      38

      In 1986, as part of the Firearms Owner's Protection Act, Congress made § 924(c) specifically applicable to drug-trafficking crimes, and increased the mandatory minimum to ten years for certain types of firearms.[18] In later amendments, Congress increased the penalty for a "second or subsequent" § 924(c) conviction to a mandatory minimum of twenty years (then ultimately to twenty-five years).[19]

      39

      The increased penalties for "second or subsequent" § 924(c) convictions produced litigation over whether multiple convictions in the same proceeding were subject to enhanced penalties. In essence, the issue was whether Congress intended § 924(c) to be a true recidivist statute or one that increased penalties for first offenders. Most courts, including the Tenth Circuit, did not apply the twenty-year penalty when the "second" conviction was just the second § 924(c) count in an indictment.[20] But in Deal v. United States,[21] the Supreme Court, in a six-to-three decision, construed the statute more broadly. In Deal, the defendant was convicted of committing six different bank robberies on six different dates, each time using a gun. He was sentenced to five years for the first § 924(c) charge, and twenty years for each of the other five § 924(c) charges—a total of 105 years. In affirming his sentence, the Court held that a "second or subsequent" conviction could arise from a single prosecution.[22] To hold otherwise, the Court noted, would simply encourage prosecutors to file separate charges and try the defendant in separate prosecutions.[23]

      40

      Less than two weeks after Deal, the Court again interpreted the statute in Smith v. United States.[24] In Smith, the Court held that exchanging a gun for drugs constitutes "use" of a firearm "during and in relation to ... [a] drug trafficking crime."[25] The Court rejected the defendant's argument that "use" of a firearm required use as a weapon.[26] The majority 1235*1235 noted than when Congress enacted the relevant version of § 924(c) it was no doubt responding to concerns that drugs and guns were a "dangerous combination."[27] Justice Scalia argued in dissent that it was "significant" that the portion of § 924(c) relating to drug trafficking was affiliated with the pre-existing provision pertaining to use of a firearm in relation to a crime of violence.[28] He therefore thought that the word "use" in relation to a crime of violence means use as a weapon, and that this definition of use carried over to the addition of drug trafficking to the statute.[29]

      41

      The Court again interpreted § 924(c) in United States v. Gonzales[30] and held that a sentence under § 924(c) could not be served concurrently with an unrelated sentence from a state conviction.[31] Finally, in Muscarello v. United States[32] the Court held that, as used in § 924(c), "carries" is not limited to the felon who carries the firearm on his person, but includes a gun brought to a drug transaction in the glove compartment of his vehicle.

      42

      What all this history reveals is that if the original version of § 924(c) governed Mr. Angelos' sentencing, the court could impose three separate one-year enhancements, adding a total of three years to his sentence. However, after 36 years of judicial interpretation and congressional modifications, the court is now left with a version of § 924(c) that requires a sentence of 55 years on top of a tough Guidelines sentence for drug dealing.

      44
      III. Mr. Angelos' Equal Protection Challenge to the Statute
      45

      Mr. Angelos first contends that 18 U.S.C. § 924(c) makes arbitrary classifications and irrationally treats him far more harshly than criminals guilty of other much more serious crimes. He raises this claim as an equal protection challenge. The court will first set forth the law on such arguments and then turn to the merits of Mr. Angelos' claim.

      47
      A. Equal Protection Review of Criminal Statutes

      49
      1. General Equal Protection Principles
      50

      Mr. Angelos can raise an equal protection challenge to classifications created by a federal criminal statute like § 924(c). While the Equal Protection Clause applies only to the states,sup>[33] "[t]he Fifth Amendment's due process clause encompasses equal protection principles."[34] Under equal protection principles, the court's review is quite limited. The Equal Protection Clause "does not enact Mr. Herbert Spencer's Social Statistics"[35] or any other personal view of a judge. Instead, unless a law infringes upon a fundamental right or classifies along suspect lines such as race, the court's review is 1236*1236 limited to determining whether there is a rational basis for the law.

      51

      Mr. Angelos does not argue that his claim is subject to a heightened standard of review. The law is well-settled on the subject.[36] As explained by the Supreme Court:

      52
      Every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees.... But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual ... and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. In this context ... an argument based on equal protection essentially duplicates an argument based on due process.[37]
      53

      This holding places on Mr. Angelos a heavy burden of proof. First, "statutory classifications will not be set aside on equal protection grounds if any ground can be conceived to justify them as rationally related to a legitimate government interest." [38] Second, "those attacking the rationality of the legislative classification have the burden `to negate every conceivable basis' which might support it."[39] The government "has no obligation to produce evidence to sustain the rationality of a statutory classification,"[40] nor does Congress have to "`articulate its reasons for enacting a statute'"[41] "[U]nder a rational basis analysis, [Congress] need not articulate the precise reasons why it chose to impose different sentences for different crimes; nothing in the Constitution prevents [Congress] from making classifications along non-suspect lines if there is a rational basis for doing so."[42] A statute can be both over-inclusive and under-inclusive and still pass rational basis review.[43] In sum, rational basis review is "a paradigm of judicial restraint" which "presumes that ... even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."[44] It is on this basis that the court will proceed.[45]

      55
      1237*1237 2. The Court's Obligation to Search for a Rational Basis
      56

      The Tenth Circuit has also instructed that rational basis review is not limited to the arguments advanced by the parties. In the recent civil case of Powers v. Harris,[46] the Circuit explained that even if the parties cannot conceive of a rational basis for the statute, the court is "not bound by the parties' arguments" but is "`obligated to seek out other conceivable reasons for validating'" the statute.[47] If this understanding of rationality review extends to criminal cases, then a defendant must not only negate all of the proposed grounds for a statute put forth by the government but also any rational basis which the court might conceive.

      57

      Such a conclusion in a criminal case, however, is problematic in light of the defendant's due process rights at sentencing. In Gardner v. Florida,[48] for example, the Supreme Court, noting that a criminal defendant "has a legitimate interest in the character of the procedure which leads to the imposition of sentence,"[49] held that it was a violation of due process for a trial court to impose the death sentence based partially on confidential information in the pre-sentence report which the defendant did not have a chance to rebut at sentencing. Gardner was a death penalty case, and there is some question about whether the due process requirements would apply in a non-capital case.[50] But here we have effectively a sentence of life in prison—the next most serious punishment the law can impose.

      58

      The Tenth Circuit has also provided guidance on the procedures to be followed at sentencing hearings. For example, in United States v. Beaulieu,[51] the 1238*1238 Tenth Circuit held that while a judge may rely on reliable hearsay at the sentencing stage, the due process clause requires that the defendant "be given adequate notice of and an opportunity to rebut or explain information that is used against him" at sentencing.[52]

      59

      These due process considerations are the basis for Rule 32(i) of the Federal Rules of Criminal Procedure, which requires the court to give the defendant a chance to refute facts in the pre-sentence report.[53] But Rule 32(i) is not limited to factual allegations in the pre-sentence report. Specifically, Rule 32(i)(1)(C) states that the Court must afford counsel for the defendant an opportunity to "comment on the probation officer's determinations and on other matters relating to the appropriate sentence ...."[54] Similarly, Rule 32(i)(3)(B) requires the court to make findings on any "controverted matters." A matter cannot be "controverted" if it is hypothesized by the judge and the defendant never has an opportunity to comment on it.

      60

      Rule 32 has been given an expansive reading by the Supreme Court. In Burns v. United States,[55] the Supreme Court considered whether a trial court could depart upwards from a Guidelines sentence sua sponte without notice to the defendant or the government. The Court held that Rule 32 requires that the defendant be notified beforehand of the court's intention to depart upward so that he can challenge both the factual and the legal basis for doing so.[56] As Burns suggests, for the trial court to reach legal conclusions without first affording notice to the parties would "render[ ] meaningless the parties' express right under Rule 32(a)(1) to `comment upon ... matters relating to the appropriate sentence'" because the right to comment upon a departure has "`little reality or worth unless one is informed' that a decision is contemplated."[57]

      61

      If the court follows here the approach adopted by the Tenth Circuit in Potvers for civil cases, it could hold that § 924(c) is constitutional based solely on an argument hypothesized by the court without notice to the defense. Such an approach would clash with the purpose of Rule 32, which is to "promote[ ] focused, adversarial resolution of the legal and factual issues" relevant to fixing a sentence.[58] In Burns, the Court explained that allowing sua sponte departures would force the parties to hypothesize every potential departure and address them "in a random and wasteful way by trying to anticipate and negate every conceivable ground on which the district court might choose to depart on its own initiative."[59]

      62

      Out of an abundance of caution, therefore, the court concludes that it should not uphold § 924(c) on grounds which the defendant has not had an opportunity to address. In reaching this conclusion, this court in no way intends to deviate from the standard rule that it is not necessary for the government to show the actual reason that Congress enacted a statute, be it civil or criminal.[60] The criminal cases supporting this rule, however, do not stand for the 1239*1239 proposition that, in contrast to the ordinary rules of sentencing, the court can advance grounds to sustain a statute sua sponte without giving the defendant a chance to respond.[61]

      63

      Finally, the court has considered whether it might be feasible for it to conceive of grounds beyond those raised by the government or the defendant and then give the parties a further opportunity to brief and argue those additional grounds. Practical concerns, however, dictate against such an approach for a criminal sentencing, where the court must impose sentence "without unnecessary delay."[62] Presumably these same concerns were at play in the Tenth Circuit's decision in Powers. The Circuit did not call for additional briefing and argument there, probably because of the delay attendant to such a procedure.

      64

      In reaching this conclusion, the court does not mean to suggest that there is some clearly "winning" argument that the government has simply failed to raise. The government has been ably represented throughout these proceedings by experienced and capable counsel. The government has briefed and argued the main grounds that can be advanced to sustain § 924(c) as applied in this case. Rather than chase down every hypothetical ground that could sustain the statute, the court will consider the grounds that have been briefed and argued in this case.

      66
      B. The Irrationality of § 924(c)
      67

      Mr. Angelos contends that § 924(c) effectively sentences him to life in prison and that this statutory scheme is irrational as applied to him. In particular, Mr. Angelos contends that § 924(c) leads to unjust punishment and creates irrational distinctions between different offenders and different offenses. The court will first review Mr. Angelos' claims about the statute's infirmities, then consider the government's defenses.

      69
      1. Mr. Angelos Effectively Receives a Life Sentence Under § 924(c)
      70

      Before turning to the merits of Mr. Angelos' claims, it is important to understand the length of the sentence that the government is asking the court to impose. If Angelos serves his full 61-12;year sentence, he will be 85 years old upon release. Assuming the 15 percent credit for good behavior, Mr. Angelos sentence will be reduced to "only" 55 years, leading to the earliest possible release date for Mr. Angelos at 77 years of age. The average life expectancy for males in the United States is about 74 years of age.[63] Therefore, under the best case scenario, Angelos might live long enough to be released from prison (assuming that the harshness of prison life does not decrease his life expectancy). Put another way, if the court imposes the sentence sought by the government, Mr. Angelos will effectively receive a sentence of life.

      72
      2. Unjust Punishment from § 924(c)
      73

      Mr. Angelos argues that his sentence is irrational because the enhancement provided for under § 924(c) increases his sentence by 55 years, whereas were the Guidelines alone to be applied, his sentence would be enhanced by only two years. Under the Guidelines, Mr. Angelos' 1240*1240 sentence would have been increased by, at most, 24 months.[64] Because the relevant conduct was charged as three separate § 924(c) violations, however, the result was a sentence increased by 660 months, or 55 years. Cases such as this force the government to choose between charging defendants under § 924(c) or relying on the Guidelines' enhancement. As the Eleventh Circuit has noted, "The relationship between § 924(c) and [the Guidelines enhancement] is an `either/or' relationship at sentencing. If a defendant is convicted [under § 924(c)], he must receive a five year consecutive sentence, but he cannot also have his base offense level enhanced pursuant to [the Guidelines enhancement] because such enhancement would violate the Double Jeopardy Clause of the United States Constitution. However, a defendant who is not convicted of a violation of § 924(c), may receive an enhancement of his base offense level for possession of a firearm in connection with a drug offense."[65] The government in this case chose to pursue § 924(c) counts rather than enhancements under the Guidelines.

      74

      The Guidelines, Mr. Angelos argues, reflect the judgment of experts appointed by Congress to determine "just punishment" for federal criminal offenses. Because his sentence, the result of 924(c), is at such discrepancy with the Guidelines determination of "just punishment," Mr. Angelos argues that his sentence is irrational.

      75

      In imposing sentences in criminal cases, the court is required by the governing statute—the Sentencing Reform Act[66]—to"impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [the Act]."[67] The purposes of sentencing set forth in the Sentencing Reform Act are:

      76
      (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
      77
      (B) to afford adequate deterrence to criminal conduct;
      78
      (C) to protect the public from further crimes of the defendant; and
      79
      (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.[68]
      80

      To give some real content to the Sentencing Reform Act's directives, Congress established an expert body—the United States Sentencing Commission—to promulgate sentencing Guidelines for criminal offenses. The Sentencing Commission, after extensive review of sentencing practices across the country established a comprehensive set of sentencing guidelines. The Commission has carefully calibrated the Guidelines through annual amendments, and Congress has had the opportunity to reject and amend Guidelines that were not to its satisfaction.

      81

      The Guidelines provide clear guidance on what is just punishment for federal offenses. To be sure, the constitutionality of the fact-finding apparatus attached to the Guidelines is currently under Supreme Court review,[69] and this court has held that in cases such as this one the Guidelines are advisory only.[70] But the substantive 1241*1241 content of the Guidelines is what is relevant here. Both sides agree that the Guidelines should be considered as providing guidance on the appropriate penalty. Moreover, Congress has directed that courts must follow the Guidelines in imposing sentence unless some unusual factor justifies a departure.[71] As a result, Congress has in essence instructed the courts that the Guidelines provide "just punishment" for criminal offenses. It could hardly be otherwise, as Congress would not have gone to the trouble of having an expert body promulgate sentencing guidelines if those guidelines failed to prescribe the appropriate sentences. In short, the views of the Sentencing Commission are entitled to "great weight because the Sentencing Commission is the expert body on federal sentencing."[72]

      82

      In this case, neither side has offered any strong reason for believing that the sentence the Guidelines alone provide for would not achieve just punishment. The Guidelines specify sentences for all crimes covered by the federal criminal code, including all the crimes committed by Mr. Angelos. Setting aside the three firearms offenses covered by the § 924(c) counts, all of Mr. Angelos' other criminal conduct results in an offense level of 28. Because Mr. Angelos is a first-time offender, the Guidelines then specify a sentence of between 78 to 97 months. It is possible to determine, however, what a Guidelines sentence would be covering all of Mr. Angelos conduct, including that covered by the § 924(c) counts. If this conduct were punished under the Guidelines rather than under § 924(c), the result would be an additional two-level enhancement,[73] increasing the offense level from a level 28 to a level 30. This, in turn, produces a recommended Guidelines sentence for Mr. Angelos of 97 to 121 months. Thus, the Guidelines inform the court that Mr. Angelos' possession of firearms should increase his sentence by no more than 24 months (from a maximum of 97 months to a maximum of 121 months). This is a point worth emphasizing: the expert agency established by Congress to evaluate federal sentences and that the court must follow when imposing sentences has specified 24 months as the appropriate enhanced penalty for Mr. Angelos' possession of firearms and no more than 121 months as "just punishment" for all of Mr. Angelos' offenses.

      83

      Bearing firmly in mind the conclusion of Congress' expert agency that 121 months is the longest appropriate prison term for all the criminal conduct in this case, it comes as a something of a shock to then consider the § 924(c) counts. Because Mr. Angelos' possession of firearms is punished not under the Guidelines but rather under § 924(c), the court is required to impose an additional penalty of 660 months (55 years) instead of the 24 month enhancement provided for by the Guidelines. It is not at all clear how the court can reconcile these two sentences. Knowing that the congressionally-approved Guidelines provide for an additional 24 month penalty for the firearms at issue, can the court conclude that an additional 660 months is a "just punishment"? One architect of the Guidelines has recognized the problem of the discrepancy:

      84
      1242*1242 The compatibility of the guidelines system and mandatory minimums is also in question. While the Commission has consistently sought to incorporate mandatory minimums into the guidelines system in an effective and reasonable manner, in certain fundamental respects, the general approaches of the two systems are inconsistent.... Whereas the guidelines provide for graduated increases in sentence severity for additional wrongdoing or for prior convictions, mandatory minimums often result in sharp variations in sentences based on what are often only minimal differences in criminal conduct or prior record. Finally, whereas the guidelines incorporate a "real offense" approach to sentencing, mandatory minimums are basically a "charge-specific" approach wherein the sentence is triggered only if the prosecutor chooses to charge the defendant with a certain offense or to allege certain facts.[74]
      85

      There is, of course, the possibility that the Sentencing Guidelines are too low in this case and that mandatory minimums specify the proper sentence. The more the court investigates, however, the more the court finds evidence that the § 924(c) counts here lead to unjust punishment. For starters, the court asked the twelve jurors in this case what they believed was the appropriate punishment for Mr. Angelos. Following the trial, the court sent—over the government's objection—each of the jurors the relevant information about Mr. Angelos' limited criminal history, described the abolition of parole in the federal system, and asked the jurors what they believed was the appropriate penalty for Mr. Angelos. Nine jurors responded and gave the following recommendations: (1) 5 years; (2) 5-7 years; (3) 10 years; (4) 10 years; (5) 15 years; (6) 15 years; (7) 15-20 years; (8) 32 years; and (9) 50 years. Averaging these answers, the jurors recommended a mean sentence of about 18 years and a median sentence of 15 years. Not one of the jurors recommended a sentence closely approaching the 61½ year sentence created by § 924(c).

      86

      At oral argument, the court asked the government what it thought about the jurors' recommendations and whether it was appropriate to impose a sentence so much higher than what the jurors thought appropriate. The government's response was quite curious: "Judge, we don't know if that jury is a random representative sample of the citizens of the United States...."[75] Of course, the whole point of the elaborate jury selection procedures used in this case was to assure that the jury was, indeed, such a fair cross section of the population so that the verdict would be accepted with confidence. It is hard to understand why the government would be willing to accept the decision of the jury as to the guilt of the defendant but not as to the length of sentence that might be imposed.

      87

      More important, the jurors' answers appear to reflect a representative of what people across the country believe. The crimes committed by Mr. Angelos are not uniquely federal crimes. They could have been prosecuted in state court in Utah or elsewhere across the country. The court 1243*1243 asked the Probation Office to determine what the penalty would have been in Utah state court had Mr. Angelos been prosecuted there. The Probation Office reported that Mr. Angelos would likely have been paroled after serving about two to three years in prison. The government gives a substantially similar estimate, reporting that on its understanding of Utah sentencing practices Mr. Angelos would have served about five to seven years in prison.[76] Even taking the higher figure from the government, the § 924(c) counts in this case result in punishment far beyond what Utah's citizens, through its state criminal justice system, provides as just punishment for such crimes.

      88

      The same conclusion obtains if the comparison is to the sentence that would be imposed in other states. Indeed, the government conceded that Mr. Angelos' federal sentence after application of the § 924(c) counts is more than he would have received in any of the fifty states.[77]

      89

      Of course, one way of determining what people across the country believe is to look to the actions of Congress. Congress serves as the nation's elected representatives, so actions taken by Congress presumably reflect the will of the people. The difficulty here is that Congress has taken two actions: (1) it created the Sentencing Commission and (2) adopted § 924(c). As between these two conflicting actions, the sentences prescribed by the Sentencing Commission more closely reflect the views of the country. And, indeed, empirical research has demonstrated that the Sentencing Guidelines generally produce sentences that are at least as harsh as those that the public would wish to see imposed.[78]

      90

      In sum, the court is faced with the fact that § 924(c) produces punishment in this case far beyond that called for by the congressionally-created expert agency on sentencing, by the jurors who heard the evidence, by the Utah state system, or by any of the other state systems. If the court is to take seriously the directive that it should impose "just punishment" with its sentences, then it should impose sentences that are viewed as appropriate by the citizens of this state and of this country. The court concludes that placing Mr. Angelos in prison for 61½ years is not "just punishment" for his crimes. This factor suggests the irrationality of § 924(c).

      92
      3. Irrational Classifications
      93

      The next factor the court should consider is Mr. Angelos' argument that § 924(c) creates irrational classifications, between different offenses and different offenders. The court will consider each of these arguments in turn.

      95
      a. Classifications Between Offenses
      96

      Mr. Angelos contends that his § 924(c) sentence is not only unjust but also irrational when compared to the punishment imposed for other more serious federal crimes. Perhaps realizing where this evaluation will inevitably lead, the government initially argues that any comparison is futile because, as the Supreme Court suggested in its 1980 decision Rummel v. Estelle, different "crimes ... implicate other societal interests, making any comparison inherently speculative."[79] At 1244*1244 some level, this argument is correct; fine distinctions between the relative severity of some kinds of crimes are hard to make. It is difficult to compare, as Rummel points out, the crime of embezzlement of millions of dollars with the crime of taking a small amount of money at gun point.[80]

      97

      But general comparisons of crimes are possible. Some crimes have, for example, a common denominator that permits comparison. As the Supreme Court clarified three years after Rummel in Solem v. Helm, "stealing a million dollars is viewed as more serious than stealing a hundred dollars." [81] More important, Solem pointed to various factors that can be assessed relatively objectively. In instructing the court to judge the gravity of the offense in the cruel and unusual punishment context, the Court noted that its holding "assumes that courts are competent to judge the gravity of an offense, at least on a relative scale. In a broad sense this assumption is justified, and courts traditionally have made these judgments—just as legislatures must make them in the first instance. Comparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender."[82] Therefore, in determining whether Congress has created irrational classifications with § 924(c), the court can be guided not by any subjective views on how harshly to punish a particular crime, but rather how the punishment for that crime compares to that imposed for other undoubtedly more serious offenses.

      98

      In evaluating the § 924(c) counts, the court starts from the premise that Mr. Angelos committed serious crimes. Trafficking in illegal drugs runs the risk of ruining lives through addiction and the violence that the drug trade spawns. As the government properly argued, when a defendant engages in a drug-trafficking operation and "carries and possesses firearms to aid in that venture, as was the case here, the actual threat of violence always exists, even it if does not actually occur."[83] But do any of these general rationales provide a rational basis for punishing the potential violence which § 924(c) is meant to deter more harshly than actual violence that harms a victim in its wake? In other words, is it rational to punish a person who might shoot someone with a gun he carried far more harshly than the person who actually does shoot or harm someone?

      99

      As applied in this case, the classifications created by § 924(c) are simply irrational. Section 924(c) imposes on Mr. Angelos a sentence 55 years or 660 months. Added to the minimum 78-month Guidelines sentence for a total sentence of 738 months, Mr. Angelos is facing a prison term which more than doubles the sentence of, for example, an aircraft hijacker (293 months),[84] a terrorist who detonates a bomb in a public place (235 months),[85] a 1245*1245 racist who attacks a minority with the to kill and inflicts permanent or life-threatening injuries (210 months),[86] a second-degree murderer,[87] or a rapist.[88] Table I 1 below sets out these and other examples of shorter sentences for crimes far more serious than Mr. Angelos'.

      101

                                              Table I

                           Comparison of Mr.Angelos' Senteces with Federal Sentences

                                   for Other Crimes Committed Three Times

                                                                 Calculation                      Sentence

      ---------------------------------------------------------------------------------------------------------------

      Mr. Angelos with Guidelines sentence plus § 924(c)         Base Offense Level               738 Months

      counts                                                      28 + 3 § 924(c)

                                                                  counts (55 vears)

      ---------------------------------------------------------------------------------------------------------------

      Kingpin of major drug trafficking ring in which             Base Offense Level              293 Months

      death resulted U.S.S.G. § 2D1.1(a)(2)                       38

      ---------------------------------------------------------------------------------------------------------------

      Aircraft hijacker U.S.S.G. § 2A5.1                          Base Offense Level              293 Months

                                                                  38

      ---------------------------------------------------------------------------------------------------------------

      Terrorist who detonates a bomb in a public place            Total Level 36 (by              235 Months

      intending to kill a bystander U.S.S.G. § 2K1.4(a)(1)        cross reference to

                                                                  § 2A2.1(a)(2) and

                                                                  terrorist enhancement

                                                                  in § 3A1.4(a))

      ---------------------------------------------------------------------------------------------------------------

      Racist who attacks a minority with the intent to kill       Base Level 28 + 4

      U.S.S.G. § 2A2.1(a)(1) & (b)(1)                             for life threatening

                                                                  + 3 for racial

                                                                  selection under

                                                                  § 3A1.1

      ---------------------------------------------------------------------------------------------------------------

      Spy who gathers top secret information U.S.S.G.             Base Offense Level              210 Months

      § 2M3.2(a)(1)                                               35

      ----------------------------------------------------------------------------------------------------------------

      Second-degree murderer U.S.S.G. § 2A1.2                     Base Offense Level              168 Months

                                                                  33

      ----------------------------------------------------------------------------------------------------------------
      Criminal who assaults with the intent to kill U.S.S.G.      Base Offense Level              151 Months

      § 2A2.1(a)(1) & (b)                                         28 + 4 for intent to

                                                                  kill = 32

      ----------------------------------------------------------------------------------------------------------------
      Kidnapper U.S.S.G. § 2A4.1(a)                               Base Offense Level              151 Months

                                                                  32

      ----------------------------------------------------------------------------------------------------------------

      Saboteur who destroys military materials U.S.S.G            Base Offense Level              151 Months

      § 2M2.1(a)                                                  32

      ----------------------------------------------------------------------------------------------------------------

      Marijuana dealer who shoots an innocent person              Base Offense Level              146 Months

      during drug transaction U.S.S.G. § 2D1.1(c)(13) &           16 + 1 § 924(c)

      (b)(2)                                                      count

      ----------------------------------------------------------------------------------------------------------------

      Rapist of a 10-year-old child U.S.S.G. § 2A3.1(a) &         Base Offense Level               135 Months

      (B)(4)(2)(A)                                                27 + 4 for young

                                                                  child = 31

      ----------------------------------------------------------------------------------------------------------------

      Child pornographer who photographs a 12-year-old            Base Offense Level               108 Months

      in sexual positions U.S.S.G. § 2G2.1(a) & (b)               27 + 2 for young

                                                                  child = 29

      ----------------------------------------------------------------------------------------------------------------

      Criminal who provides weapons to support a foreign          Base Offense Level                97 Months

      terrorist organization U.S.S.G. § 2M5.3(a) & (b)            26+2 for weapons

                                                                  = 28

      ----------------------------------------------------------------------------------------------------------------




      1051246106*1246

      110

      Criminal who detonates a bomb in an aircraft                By cross reference to            97 Months

      U.S.S.G. § 2K1.4(a)(1)                                      § 2A2.1(a)(1)

      ----------------------------------------------------------------------------------------------------------------

      Rapist U.S.S.G. § 2A3.1                                     Base Offense Level                87 Months

                                                                  27

      ----------------------------------------------------------------------------------------------------------------
      111

      The court provided these examples to the government well before the argument in this case, and invited the government to provide any corrections or additions. No changes were suggested. At oral argument, to its credit, the government conceded that at least some of the crimes in the table involved crimes more serious than those committed by Mr. Angelos. Thus, the government agreed (after extensive questioning from the court) that Mr. Angelos has committed less serious crimes than a second-degree murderer,[89] a marijuana dealer who shoots someone,[90] or a rapist.[91] The government maintained, however, that the court was not making the proper comparison. Because Mr. Angelos was convicted of three counts of violating § 924(c), the government argued, the proper comparison is between Mr. Angelos and a three-time hijacker, a three-time rapist, or a three-time second degree murderer. The government maintains that "the hijacker and kidnapper would serve much longer sentences if they were sentenced for committing those crimes three separate times."[92]

      112

      The government's argument misses the whole point of the comparison. All of Mr. Angelos' crimes taken together are less serious than, for example, even a single aircraft hijacking, a single second-degree murder, or a single rape. But even adopting the government's approach, the irrationality of the scheme only becomes more apparent. Amazingly, Mr. Angelos' sentence under § 924(c) is still far more severe than criminals who committed, for example, three aircraft hijackings, three second-degree murders, three kidnappings, or three rapes. Table II reflects a trebling of all the crimes in Table I. Mr. Angelos will receive a longer sentence than any three-time criminal, with the sole exception of a marijuana dealer who shoots three people. (Mr. Angelos still receives a longer sentence than a marijuana dealer who shoots two people.)

      114
      1247*1247
                                                Table II

                           Comparison of Mr. Angelos' Sentence with Federal Sentences

                                    for Other Crimes Committed Three Times

      ----------------------------------------------------------------------------------------------------------------

      Offense Guideline                                           Offense                         Maximum
                                                                  Calculation                     Sentence

      ----------------------------------------------------------------------------------------------------------------

      Mr. Angelos with Guidelines sentence plus § 924(c)          Base Offense Level              738 Months

      counts                                                      28 + 3 § 924(c)

                                                                  counts (55 vears)

      ----------------------------------------------------------------------------------------------------------------

      Kingpin of three major drug trafficking rings in            Base Offense Level             465 Months

      which three deaths resulted                                 38 + 3 units = 41

      ----------------------------------------------------------------------------------------------------------------

      Three-time aircraft hijacker                                Base Offense Level              405 Months

                                                                  38 + 3 units = 41

      ----------------------------------------------------------------------------------------------------------------

      Terrorist who detonates three bomb in public places         Total Offense Level             293 Months

      intending to kill a bystander                               35 + 3 units = 38

      ----------------------------------------------------------------------------------------------------------------

      Racist who attacks three minorities with the intent         Total Offense Level             151 Months

      to kill                                                     29 + 3 units = 32

      ----------------------------------------------------------------------------------------------------------------

      Spy who gathers top secret information three times          Base Offense Level              293 Months

                                                                  35 + 3 units = 38

      ----------------------------------------------------------------------------------------------------------------

      Second-degree murderer of three victims                     Base Offense Level              235 Months

                                                                  33 + 3 units = 36

      ----------------------------------------------------------------------------------------------------------------

      Criminal who assaults three people with the intent to       Total Offense Level             210 Months

      kill                                                        32 + 3 units = 35

      ----------------------------------------------------------------------------------------------------------------

      Kidnapper of three persons                                  Total Offense Level             210 Months

                                                                  32 + 3 units = 35

      ----------------------------------------------------------------------------------------------------------------

      Saboteur who destroys military materials three              Base Offense Level              210 Months

      times                                                       32 + 3 units = 35

      ----------------------------------------------------------------------------------------------------------------

      Marijuana dealer who shoots three innocent persons          Base Offense Level              813 Months

      during three drug transactions                              16 + 3 § 924(c)

                                                                  counts

      ----------------------------------------------------------------------------------------------------------------

      Rapist of three 10-year-old children                        Total Offense Level             188 Months

                                                                  31 + 3 units = 34

      ----------------------------------------------------------------------------------------------------------------

      Child pornographer who photographs three 12-yearold         Total Offense Level             151 Months

      children in sexual positions                                29 + 3 units = 32

      ----------------------------------------------------------------------------------------------------------------

      Criminal who provides weapons to support three              Total Offense Level             78 Months

      foreign terrorist organizations                             263 counts grouped

                                                                  under § 3D1.2(b)

      ----------------------------------------------------------------------------------------------------------------

      Criminal who detonates three bombs in three aircraft        Total Offense Level             135 Months

                                                                  28 + 3 units = 31

                                                                  (by cross reference to

                                                                  § 2A2.1(a)(1)) (3

                                                                  counts)

      ----------------------------------------------------------------------------------------------------------------

      Rapist who rapes three victims                              Total Offense Level             121 Months

                                                                  27 + 3 units = 30

      ----------------------------------------------------------------------------------------------------------------
      115

      The irrationality of these differences is manifest and can be objectively proven. In the Eighth Amendment context, the Supreme Court has instructed that "[c]omparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender."[93] In contrast to the serious violent felonies listed in tables I and II, the crimes committed by Mr. Angelos had the potential for violence, but no actual violence occurred. This is not to say that trafficking in illegal drugs is somehow a non-violent offense. Indeed, in Harmelin, Justice Kennedy quite properly called such an assertion "false to the point of absurdity."[94] 1248*1248 Harmelin involved the potential distribution of approximately 32,500 doses of cocaine, a highly addictive drug that was linked to many of the homicides in Detroit.[95] Justice Kennedy's concurrence equated the crime in Harmelin with "felony murder without specific intent to kill."[96]

      116

      In this case, however, Mr. Angelos will be completely punished for his marijuana trafficking by the 78-97 month Guidelines sentence he receives. The § 924(c) counts pile on an additional 55 years solely for three offenses of possessing firearms in connection with that trafficking. He receives a five-year and then another twenty-five-year sentence for counts 2 and 4, which involved carrying a gun in an ankle holster during a drug deal with one other person for several hundred dollars in marijuana. He receives another twenty-five-year sentence for Count 10, which involved three handguns found in Angelos' apartment during the execution of a search warrant. Section 924(c) punishes Angelos more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims (e.g., aircraft hijacking, second-degree murder, racist assaults, kidnapping, and rape). This factor, therefore, also suggests the irrationality of § 924(c).

      118
      b. Irrational Classifications Between Offenders
      119

      Mr. Angelos also argues that § 924(c) is irrational in failing to distinguish between the recidivist and the first-time offender. Section 924(c) increases penalties for a "second or subsequent conviction under this subsection."[97] This language can be interpreted in two different ways. One construction would be that an offender who is convicted of a § 924(c) violation, serves his time, and then commits a subsequent violation is subject to an enhanced penalty. This was the construction that the Tenth Circuit (among other courts) originally gave to the statute.[98]

      120

      Another, far more expansive construction would be that an offender who is convicted of two or more counts is subject to an enhanced penalty for each count after the first count of conviction. In 1993 in Deal v. United States,[99] the Supreme Court adopted this second construction, reading the "second or subsequent" language in § 924(c) to apply equally to the recidivist who is convicted of violating § 924(c) on separate occasions after serving prison time and to the defendant who is convicted of multiple § 924(c) counts in the same proceeding stemming from a single indictment. The Court concluded (over the dissents of three Justices) that the unambiguous phrase "subsequent conviction" in the statute permitted no distinction between the time at which the convictions took place.[100] In addition, all time imposed for each § 924(c) count must run consecutively to any other sentence.[101] This is what is known as "count stacking."

      121

      When multiple § 924(c) counts are stacked on top of each other, they produce lengthy sentences that fail to distinguish between first offenders (like Mr. Angelos) and recidivist offenders. As John R. 1249*1249 Steer, Vice Chair of the United States Sentencing Commission, has explained:

      122
      [C]onsider the effects if prosecutors pursued every possible count of 18 U.S.C. § 924(c).... The statute provides for minimum consecutive sentence enhancements of 25 years to life for the second and subsequent conviction under the statute, even if all the counts are charged, convicted, and sentenced at the same time. Pursuing multiple § 924(c) charges at the same time has been called "count stacking" and has resulted in sentences of life imprisonment (or aggregate sentences for a term of years far exceeding life expectancy) for some offenders with little or no criminal history.[102]
      123

      Consider the way in which the § 924(c) counts stack up on Mr. Angelos. He is currently 24 years old. He is to receive at least 78 months for the underlying offenses. Stacked on top of this is another 5 years for the first § 924(c) conviction. Stacked on top of this is another 25 years for the second § 924(c) conviction. And finally, another 25 years is stacked on top for the third § 924(c) conviction. Even assuming credit for good time served, Mr. Angelos will be more than 55-years-old before he even begins to serve the final 25 years his sentence. This happens not because Mr. Angelos "failed to learn his lessons from the initial punishment" and committed a repeat offense. Section 924(c) jumps from a five-year mandatory sentence for a first violation to a 25-year mandatory sentence for a second violation, which may occur just days (or even hours) later. It is not a recidivist provision.

      124

      Other true recidivist statutes do not operate this way. Instead, they graduate punishment (albeit only roughly) between first offenders and subsequent offenders. California's tough three-strikes-and-you're-out law can serve as a convenient illustration. Prompted by violence from career criminals who had been in prison and released,[103] California passed a law requiring lengthy prison terms for third-time offenders, even where the third offense could be viewed as relatively minor. Last year in Swing v. California,[104] the Supreme Court upheld a twenty-five to life sentence under California's three-strikes law. While defendant Ewing's third offense was merely stealing $399 worth of golf equipment, the controlling opinion noted that the policy of the law was to "incapacitatfe] and deter[ ] repeat offenders who threaten the public safety. The law was designed `to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.'"[105] In the end, the Court concluded that Ewing's sentence was justified "by his own long, serious criminal record [including] numerous misdemeanor and felony offenses ... nine separate terms of incarceration ... and crimes [committed] while on probation or parole."[106]

      125

      Similarly, in the earlier case of Rummel,[107] the Court saw a critical distinction between first and repeat offenders. In 1250*1250 that case, the defendant was convicted of a third felony for obtaining $120 by false pretenses and was sentenced to mandatory life imprisonment under a recidivist statute. The Court found it important to examine the "exact operation" of the statute at issue and found three important factors suggesting a legitimate basis for such a harsh punishment:

      126

      First, [Rummel] had to be convicted of a felony and actually sentenced to prison. Second, at some time subsequent to his first conviction, Rummel had to be convicted of another felony and again sentenced to imprisonment. Finally, after having been sent to prison a second time, Rummel had to be convicted of a third felony.... Given this necessary sequence, a recidivist must twice demonstrate that conviction and actual imprisonment do not deter him from returning to crime once he is released. One in Rummel's position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail.[108]

      127

      While some might raise theoretical objections to such recidivist statutes,[109] their underlying logic is clear and unassailable. But no such logic can justify § 924(c), at least when applied to first offenders such as Mr. Angelos. In cases such as his, the statute blindly draws no distinction between recidivists and first-time offenders. For this reason as well, the statute appears to be irrational as applied in this case.

      128

      The irrationality only increases when section § 924(c) is compared to the federal "three strikes" provision. Criminals with two prior violent felony convictions who commit a third such offense are subject to "mandatory" life imprisonment under 18 U.S.C. § 3559(c)—the federal "three-strikes" law. But then under 18 U.S.C. § 3582(c)(1)—commonly known as the "compassionate release" provision—these criminals can be released at age 70 if they have served 30 years in prison. But because this compassionate release provision applies to sentences imposed under § 3559(c)—not § 924(c)—offenders like Mr. Angelos are not eligible. Thus, while the 24-year-old Mr. Angelos must serve time until he is well into his 70's, a 40-year-old recidivist criminal who commits second degree murder, hijacks an aircraft, or rapes a child is potentially eligible for release at age 70. In other words, mandatory life imprisonment under the federal three-strikes law for persons guilty of three violent felony convictions is less mandatory than mandatory time imposed on the first-time offender under § 924(c). Again, the rationality of this arrangement is dubious.

      129

      This possibility, too, is no mere hypothetical. This morning, the court had before it for sentencing Thomas Ray Gurule.[110] Mr. Gurule is 54-years-old with a lifelong history of criminal activity and drug abuse. He has spent more of his life incarcerated than he has in the community. He has sixteen adult criminal convictions on his record, including two robbery convictions involving dangerous weapons. His most recent conviction was for carjacking. In August 2003, after failing to pay for gas at a service station, Mr. Gurule was pursued by the station manager. To escape, Mr. Gurule broke into the home of a young woman, held her at knife point, stole her jewelry, and forced her to drive 1251*1251 him away from the scene of his crimes. During the drive, Mr. Gurule threatened both the woman and her family.

      130

      For this serious offense—the latest in a long string of crimes for which he has been convicted—the court must apparently sentence Mr. Gurule to "life" in prison under 18 U.S.C. § 3559(c). But because of the compassionate release provision, Mr. Gurule is eligible for release after serving 30-years of his sentence. Why Mr. Gurule, a career criminal, should be eligible for this compassionate release while Mr. Angelos is not obvious to the court.

      132
      4. Demeaning Victims of Actual Violence and Creating the Risk of Backlash
      133

      For the reasons outlined in the previous section, § 924(c) imposes unjust punishment and creates irrational classifications between different offenses and different offenders. To some, this may seem like a law professor's argument—one that may have some validity in the classroom but little salience in the real world. After all, the only issue in this case is the extent of punishment for a man justly convicted of serious drug trafficking offenses. So what, some may say, if he spends more years in prison than might be theoretically justified? It is common wisdom that "if you can't do the time, don't do the crime."

      134

      The problem with this simplistic position is that it overlooks other interests that are inevitably involved in the imposition of a criminal sentence. For example, crime victims expect that the penalties the court imposes will fairly reflect the harms that they have suffered. When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract "war on drugs."

      135

      This is no mere academic point, as a case from this court's docket will illustrate. Earlier today, shortly before Mr. Angelos' hearing, the court imposed sentence in United States v. Visinaiz, 344 F.Supp.2d 1310 (D.Utah 2004), a second-degree murder case.[111] There, a jury convicted Cruz Joaquin Visinaiz of second-degree murder in the death of 68-year-old Clara Jenkins. On one evening, while drinking together, the two got into an argument. Ms. Jenkins threw an empty bottle at Mr. Visinaiz, who then proceeded to beat her to death by striking her in the head at least three times with a log. Mr. Visinaiz then hid the body in a crawl space of his home, later dumping the body in a river weighted down with cement blocks. Following his conviction for second-degree murder, Mr. Visinaiz came before the court as a firsttime offender for sentencing. The Sentencing Guidelines require a sentence for this brutal second-degree murder of between 210 to 262 months.[112] The government called this an "aggravated seconddegree murder" and recommended a sentence of 262 months. The court followed that recommendation. Yet on the same day, the court is to impose a sentence of 738 months for a first-time drug dealer who carried a gun to several drug deals!? The victim's family in the Visinaiz case— not to mention victims of a vast array of other violent crimes—can be forgiven if they think that the federal criminal justice system minimizes their losses. No doubt § 924(c) is motivated by the best of intentions—to prevent criminal victimization. But the statute pursues that goal in a way that effectively sends a message to victims 1252*1252 of actual criminal violence that their suffering is not fully considered by the system.

      136

      Another reason for concern is that the unjust penalties imposed by § 924(c) can be expected to attract public notice. As shown earlier, applying § 924(c) to cases such as this one leads to sentences far in excess of what the public believes is appropriate. Perhaps in the short term, no ill effects will come from the difference between public expectations and actual sentences. But in the longer term, the federal criminal justice system will suffer. Most seriously, jurors may stop voting to convict drug dealers in federal criminal prosecutions if they are aware that unjust punishment may follow. It only takes a single juror who is worried about unjust sentencing to "hang" a jury and prevent a conviction. This is not an abstract concern. In the case of United States v. Molina[113] the jury failed to reach a verdict on a § 924(c) count which would have added 30 years to the defendant's sentence. Judge Weinstein, commenting on "the dubious state of our criminal sentencing law" [114] noted that "Ljjury nullification of sentences deemed too harsh is increasingly reflected in refusals to convict."[115] In the last several drug trials before this court, jurors have privately expressed considerable concern after their verdicts about what sentences might be imposed. If federal juries are to continue to convict the guilty, those juries must have confidence that just punishment will follow from their verdicts.

      138
      C. Justifications for § 924(c)
      139

      Given these many problems with § 924(c) as applied to this case—its imposition of unjust punishment, its irrational classifications between offenses and offenders, and its demeaning of victims of actual criminal violence—what can be said on behalf of the statute? The Sentencing Commission has catalogued the six rationales that are said to undergird mandatory sentencing schemes such as § 924(c):

      140
      (1) Assuring "just" (i.e. appropriately severe) punishment, (2) elimination of sentence disparities, (3) judicial economies resulting from increased pressure on defendants to plead guilty, (4) stronger inducements for knowledgeable offenders to cooperate in the investigation of others, (5) more effective deterrence, and (6) more effective incapacitation of the serious offender.[116]
      141

      These six justifications potentially apply to § 924(c), and the court will consider them as they are advanced by the government.

      142

      In its skillfully-argued defense of the § 924(c) sentence here, the government does not rely on the first rationale—the "just punishment" rationale—presumably because the sentence to be imposed on Mr. Angelos appears to be unjust by any reasonable objective measure.

      143

      Nor does the government advance the second rationale: that § 924(c) eliminates sentence disparities. Again, the reasons are easy to see. Section 924(c) displaces a carefully-developed sentencing guideline system that would assure that Mr. Angelos receives equal punishment with other similarly-placed offenders. Indeed, § 924(c) creates the potential for tremendous sentencing disparity if federal prosecutors across the country do not uniformly charge § 924(c) violations. Such concerns are founded in real world data. In 1991, the Sentencing Commission found that only about 45 percent of drug offenders who qualified for a § 924(c) enhancement were initially charged under the statute, and for 1253*1253 26 percent of these offenders the counts were later dismissed.[117] In 1995, the Commission again found that only a minority of qualified offenders—between 24 and 44 percent—were convicted and sentenced for applicable § 924(c)'s.[118] Again in 2000, the Commission found a pattern of inconsistent application. Only between 10 and 30 percent of drug offenders who personally used, carried, or possessed a weapon in furtherance of a crime received the statutory enhancement.[119]

      144

      The Justice Department has recently taken partial steps to reduce charging disparities stemming from § 924(c). A directive from the Attorney General—the socalled "Ashcroft Memorandum"—requires that prosecutors shall file the first readily provable § 924(c) count and a second count in certain circumstances:

      145
      (i) In all but exceptional cases or where the total sentence would not be affected, the first readily provable violation of 18 U.S.C. § 924(c) shall be charged and pursued.
      146
      (ii) In cases involving three or more readily provable violations of 18 U.S.C. § 924(c) in which the predicate offenses are crimes of violence, federal prosecutors shall, in all but exceptional cases, charge and pursue the first two such violations.[120]
      147

      As applied to the facts of this case, the Ashcroft Memorandum seems only to highlight the problem of disparity rather than resolve it. First, when three or more violations of § 924(c) are involved, the directive requires federal prosecutors to "pursue the first two violations." In this case, the prosecutors pursued five violations, ultimately obtaining convictions on three. It seems likely that the prosecutors' charging decisions in this case would not have been replicated in other parts of the country. Second, the directive requires federal prosecutors to pursue at least two § 924(c) counts when the predicate offenses are "crimes of violence." Here, the predicates were drug crimes, which the directive does not discuss. Thus, the directive offers no guidance as to whether the prosecutors handling this case should have pursued multiple § 924(c) counts and, if so, how many.

      148

      There is also a lack of guidance to federal agents investigating these crimes. In this case, for example, the government did not arrest Mr. Angelos immediately after the first "controlled buy," but instead arranged two more such buys, which then produced one of the additional § 924(c) counts. It is not clear to the court that other law enforcement agents would have allowed Mr. Angelos to continue to deal drugs after the first buy rather than taking him into custody immediately. Of course, one of the rationales for the "stacking" feature of § 924(c) is that each additional criminal act demonstrates need for further deterrence. In this case, though, the additional criminal acts were in some sense procured by the government.

      149

      Because of the lack of guidance on these prosecutory and investigative issues, Mr. Angelos is probably receiving a sentence far in excess of what many other identically-situated offenders will receive for identical crimes in other federal districts. The court has been advised by judges from other parts of the country that, in their 1254*1254 districts, an offender like Mr. Angelos would not have been charged with multiple § 924(c) counts. This is no trivial matter. The decision to pursue, for example, a third § 924(c) count in this case makes the difference between a 36-year-sentence and 61-year sentence. In short, § 924(c) as applied in this case seems to create the serious risk of massive sentencing disparity between identically-situated offenders within the federal system. And the problem of disparity only worsens if we acknowledge the fact that Mr. Angelos would not have been charged with federal crimes in many other states. For all these reasons, the government could not plausibly defend § 924(c) on an eliminating-disparity rationale.

      150

      The government has also not advanced the third rationale—judicial economies resulting from increased pressure on defendants to plead guilty. Here again, it is possible to understand the government's reluctance. While it is constitutionally permissible for the government to threaten to file enhanced charges against a defendant who fails to plead guilty,[121] there is always the nagging suspicion that the practice is unseemly. In this case, for example, the government initially offered Mr. Angelos a plea bargain in which he would receive a fifteen-year-sentence under one § 924(c) count. When he had the temerity to decline, the government filed superseding indictments adding four additional § 924(c) counts. So far as the court can determine, the superceding indictment rested not on any newly-discovered evidenced but rather solely on the defendant's unwillingness to plead guilty. Moreover, if its plea-inducing properties justify § 924(c), then it is important to understand who will be induced to plead. Section 924(c) will not visit its harsh punishment "on flagrantly guilty repeat offenders (who avoid the mandatory by their guilty pleas), but rather on first offenders in borderline situations (who may have plausible defenses and are more likely to insist upon trial)." [122] For all these reasons, it is understandable that the government would not want to publicly defend § 924(c) with the plea-inducing argument, even though given the realities of overworked prosecutors this may provide a true justification for the statute. Nor has the government argued that § 924(c) is needed to provide incentives for drug traffickers to inform on others in their organization.[123] Instead, the rationale advanced by government is deterrence and incapacitation: the draconian provisions of § 924(c) are necessary to deter drug dealers from committing crimes with those firearms and to prevent Mr. Angelos from doing so in the future.

      151

      The deterrence argument rests on a strong intuitive logic. Sending a message to drug dealers that they will serve additional time in prison if they are caught with firearms may lead some to avoid firearms entirely and others to leave their firearms at home. The Supreme Court has specifically noted "the deterrence rationale of § 924(c)," [124] explaining that a fundamental purpose behind § 924(c) was to combat the dangerous combination of drugs and firearms.[125] Congress is certainly 1255*1255 entitled to legislate based on the belief that § 924(c) will "persuade the man tempted to commit a Federal felony to leave his gun at home." [126]

      152

      Congress' belief is, moreover, supported by empirical evidence. Generally criminologists believe that an increase in prison populations will reduce crime through both a deterrent and incapacitative effect. The consensus view appears to be that each 10% increase in the prison population produces about a 1% to 3% decrease in serious crimes.[127] For example, one recent study concluded that California's three strikes law prevented 8 murders, 4000 aggravated assaults, 10,000 robberies, and 400,000 burglaries in its first two years of operation.[128] One study found that Congress' financial incentives to states to which (like the federal system) force violent offenders to serve 85% of their sentences decreased murders by 16%, aggravated assaults by 12%, robberies by 24%, rapes by 12%, and larcenies by 3%. While offenders "substituted" into less harmful property crimes, the overall reduction in crime was significant.[129] While no specific study has examined § 924(c), it is reasonable to assume—and Congress is entitled to assume—that it has prevented some serious drug and firearms offenses.

      153

      The problem with the deterrence argument, however, is that it proves too much. A statute that provides mandatory life sentences for jaywalking or petty theft would, no doubt, deter those offenses. But it would be hard to view such hypothetical statutes as resting on rational premises. Moreover, a mandatory life sentence for petty theft, for example, would raise the question of why such penalties were not in place for aircraft hijacking, second-degree murder, rape, and other serious crimes. Finally, deterrence comes at a price. Given that holding a person in federal prison costs about $23,000 per year,[130] the 61-year-sentence the court is being asked to impose in this case will cost the taxpayers (even assuming Mr. Angelos receives good time credit and serves "only" 55-years) about $1,265,000. Spending more than a million dollars to incarcerate Mr. Angelos will prevent future crimes by him and may well deter some others from being involved with drugs and guns. But that money could also be spent on other law enforcement or social programs that in all likelihood would produce greater reductions in crime and victimization.[131]

      154

      If the court were to evaluate these competing tradeoffs, it would conclude that stacking § 924(c) counts on top of each other for first-time drug offenders who have merely possessed firearms is not a cost-effective way of obtaining deterrence. It is not enough to simply be "tough" on crime. Given limited resources in our society, we also have to be "smart" in the way we allocate our resources. But these tradeoffs are the subject of reasonable debate. 1256*1256 It is not the proper business of the court to second-guess the congressional judgment that § 924(c) is a wise investment of resources. Instead, in conducting rational basis review of the statute, the court is only to determine whether "any ground can be conceived to justify [the statutory scheme] as rationally related to a legitimate government interest."[132] "Where there are 'plausible reasons' for Congress' action, [the court's] inquiry is at an end."[133] In Busic referring to Simpson, the Supreme Court recognized that § 924(c) could lead to "seemingly unreasonable comparative sentences" but that "[i]f corrective action is needed it is the Congress that must provide it. It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." [134] The Court further noted that "in our constitutional system the commitment to separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with `commonsense and the public weal'"[135]

      155

      Accordingly, the court reluctantly concludes that § 924(c) survives rational basis scrutiny. While it imposes unjust punishment and creates irrational classifications, there is a "plausible reason" for Congress' action. As a result, this court's obligation is to follow the law and to reject Mr. Angelos' equal protection challenge to the statute.

      157
      IV. Cruel and Unusual Punishment
      158

      In addition to raising an equal protection argument, Mr. Angelos also argues that his 55-year sentence under § 924(c) violates the Eighth Amendment's prohibition of cruel and unusual punishment. In this argument, he is joined in an amicus brief filed by a distinguished group of 29 former United States District Judges, United States Circuit Court Judges, and United States Attorneys,[136] who draw on their expertise in federal criminal law and federal sentencing issues to urge that the sentence is unconstitutional as disproportionate to the offenses at hand.

      159

      Mr. Angelos and his supporting amici are correct in urging that controlling Eighth Amendment case law places an outer limit on punishments that can be imposed for criminal offenses, forbidding penalties that are grossly disproportionate to any offense. This principle traces its roots to the Supreme Court's 1983 decision in Solem v. Helm,[137] in which the Supreme Court seemed to modify its earlier holding in Rummel v. Estelle[138] and "h[e]ld as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted."[139] 1257*1257 The principles of Solem were themselves seemingly modified by the Court's fractured 1991 decision in Harmelin v. Michigan,[140] in which the Court held that imposition of a life sentence without possibility of parole for possession of 650 grams of cocaine did not violate the Eighth Amendment. Then, last year, the Supreme Court confirmed that the gross disproportionality principle—"the precise contours of which are unclear"[141]—is applicable to sentences for terms of years; that there was a "lack of clarity" in its precedents;[142] that it had "not established a clear or consistent path for courts to follow;"[143] and that the proportionality principles from Justice Kennedy's Harmelin concurrence "guide our application of the Eighth Amendment."[144] The Tenth Circuit, too, has instructed that "Justice Kennedy's opinion controls because it both retains proportionality and narrows Solem."[145]

      160

      In light of these controlling holdings, the court must engage in a proportionality analysis guided by factors outlined in Justice Kennedy's Harmelin concurrence. In particular, the court must examine (1) the nature of the crime and its relation to the punishment imposed, (2) the punishment for other offenses in this jurisdiction, and (3) the punishment for similar offenses in other jurisdictions.

      161

      Before turning to these Harmelin factors, it is important to emphasize that the criminal conduct at issue is solely that covered by the three § 924(c) counts. Mr. Angelos will be fully and appropriately punished for all other criminal conduct from the sentence on these other counts. Thus, the proportionality question in this case boils down to whether the 55-year sentence is November 16, 2004 disproportionate to the offense of carrying or possessing firearms three times in connection with dealing marijuana.

      163
      >A. Mr. Angelos' Offenses and the Contemplated Penalty
      164

      The first Harmelin factor requires the court to compare the seriousness of the three § 924(c) offenses to the harshness of the contemplated penalty to determine if the penalty would be grossly disproportionate to such offenses. In weighing the gravity of the offenses, the court should consider the offenses of conviction and the defendant's criminal history,[146] as well as "the harm caused or threatened to the victim or society, and the culpability of the offender."[147] Simply put, "[d]isproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender." [148]

      165

      The criminal history in this case is easy to describe. Mr. Angelos has no prior 1258*1258 adult criminal convictions and is treated as a first-time offender under the Sentencing Guidelines.

      166

      The sentence-triggering criminal conduct in this case is also modest. Here, on two occasions while selling small amounts of marijuana, Mr. Angelos possessed a handgun under his clothing, but he never brandished or used the handgun. The third relevant crime occurred when the police searched his home and found handguns in his residence. These handguns had multiple purposes—including recreational activities—but because Mr. Angelos also used the gun to protect himself while dealing drugs, the possession of these handguns is also covered by § 924(c).[149]

      167

      Mr. Angelos did not engage in force or violence, or threats of force or violence, in furtherance of or in connection with the offenses for which he has been convicted. No offense involved injury to any person or the threat of injury to any person. It is well-established that crimes marked by violence or threat of violence are more serious [150] and that the absence of direct violence affects the strength of society's interest in punishing a particular criminal.[151]

      168

      It is relevant on this point that the Sentencing Commission has reviewed crimes like Mr. Angelos' and concluded that an appropriate penalty for all of Mr. Angelos' crimes is no more than about ten years (121 months).[152] With respect to the firearms conduct specifically, the Commission has concluded that about 24 months (a two-level enhancement) is the appropriate penalty.[153] The views of the Commission are entitled to special weight, because it is a congressionally-established expert agency which can draw on significant data and other resources in determining appropriate sentences. Comparing a recommended sentence of two years to the 55-year enhancement the court must impose strongly suggests not merely disproportionality, but gross disproportionality.

      170
      B. Comparison to Penalties for Other Offenses
      171

      The next Harmelin factor requires comparing Mr. Angelos' sentence with the sentences imposed on other criminals in the federal system.[154] Generally, "[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive."[155] This factor points strongly in favor of finding that the sentence in this case is excessive. As shown in Tables I and II earlier in this opinion, Mr. Angelos will receive a far longer sentence than those imposed in the federal system for such major crimes as aircraft hijacking, second-degree murder, racial beating inflicting life-threatening injuries, kidnapping, and rape. Indeed, Mr. Angelos will receive a far longer sentence than those imposed for three aircraft hijackings, three second-degree murders, three racial beatings inflicting life-threatening injuries, three kidnappings, and three rapes. Because Mr. Angelos is "treated in the same manner as, or more severely than, criminals who have committed far more serious crimes," [156] it appears that the second factor is satisfied.

      173
      1259*1259 C. Comparison to Other Jurisdictions
      174

      The final Harmelin factor requires the court to examine "sentences imposed for the same crime in other jurisdictions." [157] Evaluating this factor is also straightforward. Mr. Angelos sentence is longer than he would receive in any of the fifty states. The government commendably concedes this point in its brief, pointing out that in Washington State Mr. Angelos would serve about nine years and in Utah would serve about five to seven years.[158] Accordingly, the court finds that the third factor is satisfied.

      176
      D. Application of the Harmelin Factors in Light of Davis
      177

      Having analyzed the three Harmelin factors, the court believes that they lead to the conclusion that Mr. Angelos' sentence violates the Eighth Amendment. But before the court declares the sentence unconstitutional, there is one last obstacle to overcome. The court is keenly aware of its obligation to follow precedent from superior courts—specifically the Tenth Circuit and, of course, the Supreme Court. The Supreme Court has considered one case that might be regarded as quite similar to this one. In Hutto v. Davis,[159] the Supreme Court held that two consecutive twenty-year sentences—totaling forty years—for possession of nine ounces of marijuana said to be worth $200 did not violate the Eighth Amendment. If Davis remains good law, it is hard see how the sentence in this case violates the Eighth Amendment. Here, Mr. Angelos was involved in at least two marijuana deals involving $700 and approximately sixteen ounces (one pound) of marijuana. Perhaps currency inflation could equate $700 today with $200 in the 1980's. But as a simple matter of arithmetic, if 40 years in prison for possessing nine ounces marijuana does not violate the Eighth Amendment, it is hard to see how 61 years for distributing sixteen ounces (or more) would do so.

      178

      The court is aware of an argument that the 1982 Davis decision has been implicitly overruled or narrowed by the 1983 Solem decision and other more recent pronouncements. For example, Justice Kennedy's concurring opinion in Harmelin, explained that "[o]ur most recent pronouncement on the subject in Solem appeared to apply a different analysis than in... Davis."[160] But the Court apparently continues to view Davis as part of the fabric of the law. Thus, Justice Kennedy's concurrence in Harmelin, after noting the seeming overruling of Davis, went on to discuss Davis along with other cases in distilling various "common principles" that control Eighth Amendment analysis.[161] Justice Kennedy also explained in Harmelin that his approach "takes full account of ... Davis, [a] case[ ] ignored by the dissent." [162] More recently, in reviewing California's "three strikes" legislation last year, the plurality opinion reviewed Davis as one of a string of cases that guide analysis of Eighth Amendment challenges.[163]

      179

      1260*1260 In light of these continued references to Davis, the court believes it is it obligated to follow its holding here. Indeed, in Davis the Supreme Court pointedly reminded district court judges that "unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts...." [164] Under Davis, Mr. Angelos' sentence is not cruel and unusual punishment. Therefore, his Eighth Amendment challenge must be rejected.

      181
      V. Calculating the Sentence
      182

      With Mr. Angelos' constitutional challenges to the 55-year sentence on § 924(c) counts resolved, the remaining issue before the court is the sentence to be imposed on the other counts. Mr. Angelos raises a constitutional challenge to the 78-97 month sentence called for by the Sentencing Guidelines for his thirteen other offenses. He notes that the Guidelines calculation rests on enhancements that were never submitted to the jury, in particular enhancements based on the quantity of drugs involved and the amount of money laundered. Under this court's decision in United States v. Croxford[165] interpreting Blakely v. Washington,[166] these enhancements extend the maximum penalty that can be imposed on Mr. Angelos beyond that supported by the jury's verdict. Croxford explains that the Sixth Amendment as interpreted in Blakely requires jury fact-finding on such issues as drug quantities and dollar values. The court therefore holds that the Guidelines are unconstitutional as applied to Mr. Angelos.

      183

      Without the Guidelines, the court is free to make its own determination of what is an appropriate sentence for these thirteen offenses. In making that determination, the court consults the Guidelines as instructive but not binding.[167] If the sentence on these thirteen counts was the only sentence that Mr. Angelos would serve, a sentence of about 78-97 months might well be appropriate. But the court cannot ignore the reality that Mr. Angelos will also be sentenced to 55 years on the § 924(c) counts, far in excess of what is just punishment for all of his crimes. In light of this 55-year sentence, and having considered all of the relevant factors listed in the Sentencing Reform Act,[168] the court will impose a sentence of one day in prison for all offenses other than the § 924(c) counts. Lest anyone think that this is a "soft" sentence, in combination with the § 924(c) counts, the result is that Mr. Angelos will not walk outside of prison until after he reaches the age of 70.

      184

      Not content with a mere 55-year sentence in this case, the government argues that the court may not depart downward from the Guidelines simply because of the penalties imposed by the § 924(c) counts. Its argument rests on United States v. Thornbrugh,[169] in which the Tenth Circuit found it was an abuse of discretion for a district court to depart from the Guidelines because of the harsh effects of § 924(c). But for the reasons articulated in Croxford, the Guidelines no longer bind the court in this case. Therefore, the court need not "depart" from the Guidelines to impose a one day sentence, and thus the 1261*1261 analysis of departures in Thornbrugh is not controlling in this case.

      186
      VI. Recommendations to Other Branches of Government
      187

      Having disposed of the legal arguments in this case, it seems appropriate to make some concluding, personal observations. I have been on the bench for nearly twoand-half years now. During that time, I have sentenced several hundred offenders under the Sentencing Guidelines and federal mandatory minimum statutes. By and large, the sentences I have been required to impose have been tough but fair. In a few cases, to be sure, I have felt that either the Guidelines or the mandatory minimums produced excessive punishment. But even in those cases, the sentences seemed to be within the realm of reason.

      188

      This case is different. It involves a first offender who will receive a life sentence for crimes far less serious than those committed by many other offenders—including violent offenders and even a murderer— who have been before me. For the reasons explained in my opinion, I am legally obligated to impose this sentence. But I feel ethically obligated to bring this injustice to the attention of those who are in a position to do something about it.

      190
      A. Recommendation for Executive Commutation
      191

      For all the reasons previously given, an additional 55-year sentence for Mr. Angelos under § 924(c) is unjust, disproportionate to his offense, demeaning to victims of actual criminal violence—but nonetheless constitutional. While I must impose the unjust sentence, our system of separated powers provides a means of redress. The Framers were well aware that "[t]he administration of justice ... is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt." [170] In my mind, this is one of those rare cases where the system has malfunctioned. "To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments." [171] Under our Constitution, the President has "the Power to grant Reprieves and Pardons for Offenses against the United States...." [172] One of the purposes of executive clemency is "to afford relief from undue harshness." [173] This power is absolute. "The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." [174]

      192

      Given that the President has the exclusive power to commute sentences, the question arises as to whether I have any role to play in commutation decisions, ie., is it appropriate for me to make a commutation recommendation to the President. Having carefully reviewed the issue, I believe that such a recommendation is entirely proper. The President presumably wants the fullest array of information regarding cases in which a commutation might be appropriate. Moreover, the Executive Branch has indicated that it actively solicits the views of sentencing judges on pardon and commutation requests. The Office of the Pardon Attorney in the Department of Justice is responsible for 1262*1262 handling requests for pardons and commutations. According to the U.S. Attorney's Manual Standards for Consideration of Clemency Petitions, the Pardon Attorney "routinely requests ... the views and recommendations of the sentencing judge" on any request for commutation.[175]

      193

      I therefore believe that it is appropriate for me to communicate to the President, through the Office of the Pardon Attorney, my views regarding Mr. Angelos' sentence. I recommend that the President commute Mr. Angelos' sentence to a prison term of no more than 18 years, the average sentence recommended by the jury that heard this case.[176] The court agrees with the jury that this is an appropriate sentence in this matter in light of all of the other facts discussed in this opinion. The Clerk's Office is directed to forward a copy of this opinion with its commutation recommendation to the Office of Pardon Attorney.

      195
      B. Recommendation for Legislative Reform
      196

      While a Presidential commutation of Mr. Angelos' sentence would resolve his particular case, § 924(c) remains in place and will continue to create injustices in future cases. For the reasons explained in this opinion, the problem stems from the count stacking features of mandatory minimum sentences. In our system of separate powers, general correction of this problem lies in the hands of Congress which is possessed of the "legislative powers" granted in the Constitution.[177]

      197

      Again, the question arises regarding whether it is appropriate for me to communicate with Congress regarding apparent problems that have arisen in applying the mandatory minimums in this case. Having carefully studied the issue, I conclude that such a communication is proper. As Judge Calabresi on the Second Circuit has noted, "[t]he tradition of courts engaging in dialogue with legislatures is too well-established in this and other courts to disregard."[178] Presumably Congress no less than the President desires feedback on how its statutes are operating. Congress also presumably wants to be informed in situations where its mandates are producing adverse effects, such as demeaning crime victims or risking a possible backlash from citizen juries.

      198

      Justice Anthony Kennedy recently commented on the roles of courts and legislatures in specific reference to mandatory minimums:

      199
      The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just ... A court decision does not excuse the political branches or the public from the responsibility for unjust laws.[179]
      200

      1263*1263 This court deals with sentencing matters on a daily basis and feels in a unique position to advise Congress on such matters. Congress itself has recognized the expertise of the judiciary in matters of sentencing by placing the Sentencing Commission in the judicial branch of government. As the Supreme Court noted in Mistretta v. United States,[180] "sentencing is a field in which the Judicial Branch long has exercised substantive or political judgment.... Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise." [181]

      201

      For all these reasons, it is appropriate for me to communicate with Congress concerning the need for legislative reform. I express no view on mandatory minimum sentencing schemes in general. But for the reasons discussed in this opinion, one particular feature of the federal scheme— the "count stacking" feature of § 924(c) for first-time offenders—has lead to an unjust result in this case and will lead to unjust results in other cases. Particularly in cases (like this one) that do not involve direct violence, Congress should consider repealing this feature and making § 924(c) a true recidivist statute of the threestrikes-and-you're-out variety. In other words, Congress should consider applying the second and subsequent § 924(c) enhancements only to defendants who have been previously convicted of a serious offense, rather than to first-time offenders like Mr. Angelos. This is an approach to § 924(c) that the Tenth Circuit[182] and Justices Stevens, O'Connor, and Blackmun [183] believed Congress intended. It is an approach to sentencing that makes good sense. The Clerk's Office is directed to forward a copy of this opinion to the Chair and Ranking Member of the House and Senate Judiciary Committees.

      203
      CONCLUSION
      204

      The 55-year sentence mandated by § 924(c) in this case appears to be unjust, cruel, and irrational. But our constitutional system of government requires the court to follow the law, not its own personal views about what the law ought to be. Perhaps the court has overlooked some legal point, and that the appellate courts will find Mr. Angelos' sentence invalid. But applying the law as the court understands it, the court sentences Mr. Angelos to serve a term of imprisonment of 55 years and one day. The court recommends that the President commute this unjust sentence and that the Congress modify the laws that produced it. The Clerk's Office is directed to forward a copy of this opinion with its commutation recommendation to the Office of Pardon Attorney and to the Chair and Ranking Member of the House and Senate Judiciary Committees.

      206

      [1] 18 U.S.C. § 841(b)(1).

      208

      [2] Tr. 9/14/04 at 27 (based on U.S.S.G. § 2D1.1(c)(7)§ 2S1.1(b)(2)(B)).

      210

      [3] 18 U.S.C. § 924(c)(1)(A)(i) & (C)(i).

      212

      [4] 18 U.S.C. § 924(c)(1)(D)(ii).

      214

      [5] ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      216

      [6] H.R.REP. NO. 90-1577 at 1698, 90th Cong., 2d Sess., 7 (1968), 1968 U.S.C.C.A.N. 4410, 4412.

      218

      [7] Cf. Jung v. Association of American Medical Colleges, 339 F.Supp.2d 26, 42-43 (D.D.C. 2004) (noting interpretive difficulties created when legislation is passed without legislative hearings).

      220

      [8] Busic v. United States, 446 U.S. 398, 405, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

      222

      [9] 114 CONG. REC 22, 231-48 (1968) (Statement of Rep. Poff).

      224

      [10] Simpson v. United States, 435 U.S. 6, 7-8, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (citing 18 U.S.C. § 924(c) (1968)).

      226

      [11] Id.

      228

      [12] 435 U.S. 6, 98 S.Ct. 909 (1977).

      230

      [13] Id. at 13, 14, 98 S.Ct. 909.

      232

      [14] 446 U.S. 398, 100 S.Ct. 1747 (1980).

      234

      [15] Id. at 406, 100 S.Ct. 1747 (quoting 19 U.S. Atty's Bull. No. 3, p. 63 (U.S. Dept. of Justice, 1981)).

      236

      [16] United States v. Gonzales, 520 U.S. 1, 10, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)(citing Comprehensive Crime Control Act of 1984, Pub.L. 98-47. § 1005(a), 98 Stat. 2128-39).

      238

      [17] Id.

      240

      [18] Pub.L. No. 99-308, § 104(a)(2)(A)-(F).

      242

      [19] Pub.L. No. 100-690, § 6212, 102 Stat. 4181, 4360 (1988).

      244

      [20] See, e.g., United States v. Chalan, 812 F.2d 1302, 1315 (10th Cir.1987), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988).

      246

      [21] 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).

      248

      [22] Id. at 133-34, 113 S.Ct. 1993.

      250

      [23] Id. at 134, 113 S.Ct. 1993.

      252

      [24] 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

      254

      [25] Id. at 225, 113 S.Ct. 2050.

      256

      [26] Id. at 228, 113 S.Ct. 2050.

      258

      [27] Id. at 239, 113 S.Ct. 2050.

      260

      [28] Id. at 244, 113 S.Ct. 2050 (Scalia J., dissenting).

      262

      [29] Id.

      264

      [30] 520 U.S. 1, 117 S.Ct. 1032 (1997).

      266

      [31] Id. at 9-10, 117 S.Ct. 1032.

      268

      [32] 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998).

      270

      [33] U.S. CONST, amend. XIV ("No State shall. . . deny to any person with its jurisdiction the equal protection of the laws."), U.S. v. Lee, 957 F.2d 778 (10th Cir.1992), cert. denied, 506 U.S. 978, 113 S.Ct. 475, 121 L.Ed.2d 381 (1992).

      272

      [34] United States v. Lee, 957 F.2d 778, 782 (10th Cir.1992) (citing Mathews v. de Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976)).

      274

      [35] Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J.)

      276

      [36] United States v. McKissick, 204 F.3d 1282, 1300 (10th Cir.2000) ("We review Mr. Zeigler's equal protection claim regarding the sentencing guidelines under the rational basis standard to determine whether the challenged sentence is based on an arbitrary distinction or upon a rational sentencing scheme.").

      278

      [37] Chapman v. United States, 500 U.S. 453, 464-65, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (citations omitted); see also Baer v. City of Wauwatosa, 716 F.2d 1117, 1125 (7th Cir. 1983) (discrimination against felons subject to rational basis review).

      280

      [38] Lee, 957 F.2d at 782 citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

      282

      [39] FCC v. Beach Communications, Inc. 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (citations omitted).

      284

      [40] Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).

      286

      [41] Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir.2004) (citations omitted).

      288

      [42] Phillips v. Iowa, 185 F.Supp.2d 992, 1008 (N.D.Iowa 2002).

      290

      [43] Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).

      292

      [44] Beach Communications, Inc., 508 U.S. at 314, 113 S.Ct. 2096.

      294

      [45] Mr. Angelos also seeks to raise an "as-applied" challenge to § 924(c)'s rationality. It is not clear whether as-applied challenges are permitted in the context of rationality review. After all, "[n]early any statute which classifies people may be irrational as applied in particular cases." Better v. Rumsfeld, 632 F.2d 788, 808-09, n. 20 (9th Cir.1980). Moreover, statutes subject to rational review can be based on "assumptions" and "generalizations" which "inevitably produce seemingly arbitrary consequences in some individual cases." Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977). These statutes "must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples." Id. at 55, 98 S.Ct. 95. Thus, in Rojas-Reyes v. INS, 235 F.3d 115 (2d Cir.2000), the court rejected an as-applied challenge because it "misunderstands the nature of rational basis review, in which acts of Congress . . . need not result in the most just or logical result in every case to pass constitutional muster." Id. at 123 (citation omitted).

      295

      On the other hand, the Supreme Court and Tenth Circuit have both addressed as-applied challenges under rational basis review without questioning whether the posture of the case was appropriate. See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (striking down local zoning ordinance under rational basis review because irrational "as applied in this case"); Meyer v. Nebraska, 262 U.S. 390, 403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that Nebraska law prohibiting the teaching of German in public schools "as applied is arbitrary"); United States v. Alahmad, 211 F.3d 538, 541 (10th Cir.2000) (upholding International Parental Kidnapping Crime Act against as-applied rational basis challenge); United States v. Doyan, 909 F.2d 412, 416 (10th Cir.1990) (upholding U.S.S.G. § 5E1.2(i) "as applied here"). In light of these possibly conflicting approaches and the seriousness of the penalties facing Mr. Angelos, the safest and fairest approach here is to give him the benefit of the doubt and consider his as-applied challenge.

      297

      [46] 379 F.3d 1208 (10th Cir.2004).

      299

      [47] Id. at 1217 (quoting Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir.2001) cert. denied, 534 U.S. 1021, 122 S.Ct. 548, 151 L.Ed.2d 424 (2001)).

      301

      [48] 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      303

      [49] Id. at 357, 97 S.Ct. 1197.

      305

      [50] Wayne R. LaFave, et al., CRIMINAL PROCEDURE 1240-41 (4th ed.2004).

      307

      [51] 893 F.2d 1177 (10th Cir.1990), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).

      309

      [52] Id. at 1181.

      311

      [53] See, e.g., United States v. Romero, 122 F.3d 1334, 1344 (10th Cir.1997), cert. denied, 523 U.S. 1025, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998).

      313

      [54] FED.R.CRIM.P. 32(C)(1) (emphasis added).

      315

      [55] 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).

      317

      [56] Id. at 135-136, 111 S.Ct. 2182.

      319

      [57] Id. at 136, 111 S.Ct. 2182 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

      321

      [58] Burns, 501 U.S. at 137, 111 S.Ct. 2182.

      323

      [59] Id.

      325

      [60] United States v. Lee, 957 F.2d 778, 782 (10th Cir.1992), cert. denied, 506 U.S. 978, 113 S.Ct. 475, 121 L.Ed.2d381 (1992).

      327

      [61] See, e.g., id. at 780 (government raising the grounds used to sustain the statute).

      329

      [62] FED. R.CRIM. P. 32(b)(1).

      331

      [63] Elizabeth Arias, United States Life Tables, 2001 in National Vital Statistics Reports, U.S. Dep't of Health and Human Sen'., Vol. 52, No. 14 (Feb. 18, 2004) available at http:// www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52 14.pdf.

      333

      [64] § 2D1.1(b)(1) (gun enhancement for drug offenses).

      335

      [65] United States v. Mixon, 115 F.3d 900, 902 (11th Cir.1997) (citation omitted).

      337

      [66] 18 U.S.C. § 3551 et. seq.

      339

      [67] 18 U.S.C. § 3553(a).

      341

      [68] 18 U.S.C. § 3553(a)(2) (emphasis added).

      343

      [69] See United States v. Booker, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004) (granting certiorari to review this question).

      345

      [70] United States v. Croxford, 324 F.Supp.2d 1230 (D.Utah 2004); see also Part V, infra (discussing application of Croxford to this case).

      347

      [71] 18 U.S.C. § 3553(b)(1).

      349

      [72] United States v. Hill, 48 F.3d 228, 231 (7th Cir.1995); see also Mistretta v. United States, 488 U.S. 361, 379, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (noting Commission's status as "an expert body").

      351

      [73] U.S.S.G. § 2D1.1(b)(1).

      353

      [74] Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 WAKE FOREST L.REV. 185, 194 (1993); see also Neal v. United States, 516 U.S. 284, 292, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996). See generally U.S. SENTENCING COMM., MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM: A SPECIAL REPORT TO CONGRESS 5-15 (1991) (numbers inserted and justifications reordered) (hereinafter Sentencing Comm. Mandatory Minimum Report).

      355

      [75] Tr. 9/14/04 at 60.

      357

      [76] Government's Resp. Mem. Re: Constitutionality of Mandatory Minimum Sentences Pursuant to 18 U.S.C. § 924(c) at 23 n. 19 (Apr. 8, 2004).

      359

      [77] Id. at 23 n. 18.

      361

      [78] PETER H. Rossi RICHARD A. BERK, JUST PUNISHMENTS: FEDERAL GUIDELINES AND PUBLIC VIEWS COMPARED (1998).

      363

      [79] Rummel v. Estelle, 445 U.S. 263, 282 n. 27, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

      365

      [80] Id. at 282 n. 27, 100 S.Ct. 1133.

      367

      [81] Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

      369

      [82] Id.

      371

      [83] Government's Reply Mem. to Br. of Amici Curiae Re: Constitutionality of Mandatory-Minimum Sentences and to Resp. of Angelos Re: Court Order Inviting Angelos to File Plea Negotiation History at 13 (September 10, 2004).

      373

      [84] U.S.S.G. § 2A5.1 (2003) (base offense level 38). The 2003 Guidelines are used in all calculations in this opinion. All calculations assume a first offender, like Mr. Angelos, in Criminal History Category I.

      375

      [85] U.S.S.G. § 2K1.4(a)(1) (cross-referencing § 2A2.1(a)(2) and enhanced for terrorism by § 3A1.4(a)).

      377

      [86] U.S.S.G. § 3A1.1 (base offense level 32 + 4 for life-threatening injuries + 3 for racial selection under § 3A1.4(a)).

      379

      [87] U.S.S.G. § 2A1.2 (base offense level 33).

      381

      [88] U.S.S.G. § 2A3.1 (base offense level 27).

      383

      [89] Tr. 9/14/2004 at 66.

      385

      [90] Id. at 55.

      387

      [91] Id. at 67.

      389

      [92] Government's Resp. Mem. Re: Constitutionality of Mandatory Minimum Sentences Pursuant to 18 U.S.C. § 924(c) at 20 (Apr. 8, 2004).

      390

      On a less serious note, the court agrees with the government on a subsidiary lexicographical point—that "kidnapper" is properly spelled with two p's rather than one. The court acknowledges the contrary argument of Judge Boyce, who argues for the single p spelling. ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 229 (1982). The court, however, finds persuasive the arguments of the nation's leading legal stylist—Bryan Garner—who notes (among other arguments) that a double p is used about five to ten times as often as a single p. BRYAN A. GARNER. A DICTIONARY OF MODERN LEGAL USAGE 494 (2d ed.1995). Moreover, in this case, both Congress (see 18 U.S.C. § 1201) and the Sentencing Commission (see U.S.S.G. § 2A4.1) have used the double p spelling. Finally, while the Tenth Circuit has used both versions, it seems to prefer the double p. See, e.g., United States v. Wooten, 377 F.3d 1134 (10th Cir.2004) (using kidnapping).

      392

      [93] Harmelin v. Michigan, 501 U.S. 957, 1004, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy J., concurring).

      394

      [94] Id. at 1002, 111 S.Ct. 2680 (Kennedy J., concurring).

      396

      [95] Id. at 1002-03, 111 S.Ct. 2680 (Kennedy, J., concurring).

      398

      [96] Id. at 1004, 111 S.Ct. 2680 (Kennedy, J., concurring).

      400

      [97] 18 U.S.C. § 924(c)(1).

      402

      [98] United States v. Abreu, 962 F.2d 1447, 1450 (10th Cir.1992) (en banc)(cert. granted, judg. vacated, 508 U.S. 935, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993)).

      404

      [99] 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).

      406

      [100] Id. at 132-33, 113 S.Ct. 1993.

      408

      [101] 18 U.S.C. § 924(c)(1)(D)(ii).

      410

      [102] Statement of John R. Steer, Member and Vice Chair of the United States Sentencing Comm'n Before the ABA Justice Kennedy Comm'n 19 (Nov. 13, 2003).

      412

      [103] See generally MIKE REYNOLDS & BILL JONES. THREE STRIKES AND YOU'RE OUT ... A PROMISE TO KIMBER: THE CHRONICLE OF AMERICA'S TOUGHEST ANTI-CRIME LAW (1996).

      414

      [104] 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003).

      416

      [105] Id. at 15, 123 S.Ct. 1179 (O'Connor, J.) (quoting Cal.Penal Code Ann. § 667(b)).

      418

      [106] Id. at 30, 123 S.Ct. 1179.

      420

      [107] 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

      422

      [108] 445 U.S. at 278, 100 S.Ct. 1133 (emphasis added).

      424

      [109] See, e.g., Markus Dirk Dubber, Recidivist Statutes as Arational Punishment, 43 BUFF. L.REV. 689 (1996).

      426

      [110] United States v. Gurule, No. 2:04-C209-PGC.

      428

      [111] United States v. Visinaiz, 344 F.Supp.2d 1310.

      430

      [112] U.S.S.G. § 2A1.2 (offense level of 33) + § 3A 1.1(b) (two-level increase for vulnerable victim) + § 3C1.1 (two-level increase for obstruction of justice).

      432

      [113] 963 F.Supp. 213 (E.D.N.Y.1997).

      434

      [114] Id. at 213.

      436

      [115] Id. at 214.

      438

      [116] SENTENCING COMM. MANDATORY MINIMUM REPORT, supra, at 5-15.

      440

      [117] See SENTENCING COMM. MANDATORY MINIMUM REPORT at 57-58.

      442

      [118] See Paul J. Hofer, Federal Sentencing for Violent and Drug Trafficking Crimes Involving Firearms: Recent Changes and Prospects for Improvement, 37 AM.CRIM. L.REV. 41 (2000).

      444

      [119] Statement of John R. Steer to the ABA Justice Kennedy Commission, supra, at 17.

      446

      [120] Mem. to All Federal Prosecutors from A.G. John Ashcroft Re: Dep't Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing at 4 (Sept. 22, 2003) (emphases added).

      448

      [121] Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

      450

      [122] Stephen J. Schullhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L.REV. 199, 203 (1993).

      452

      [123] Cf. Jay Apperson, The Lock-'em Up Debate: What Prosecutors Know: Mandatory Minimums Work, WASH. POST, Feb. 27, 1994 at CI.

      454

      [124] Simpson, 435 U.S. at 14, 98 S.Ct. 909.

      456

      [125] Smith v. United States, 508 U.S. 223, 240, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

      458

      [126] 114 CONG. REC. 22, 231-48 (1968) (Statement of Rep. Poff).

      460

      [127] See, e.g., Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q.J. ECON. 319 (1996); James Q. Wilson, Prisons in a Free Society, 117 PUB. INTEREST 37, 38 (1998).

      462

      [128] See, e.g., Joanna M. Shepherd, Fear of the First Strike: The Full Deterrent Effect of California's Two-and Three-Strikes Legislation, 31 J. LEGAL STUD. 159 (2002).

      464

      [129] Joanna M. Shepherd, Police, Prosecutors, Criminals, and Determinate Sentencing: The Truth About Truth-in-Sentencing Laws, 45 J.L. & ECON. 509 (2002).

      466

      [130] MEMORANDUM TO ALL CHIEF PROBATION OFFIcers FROM THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS REGARDING COSTS OF INCARCERATION AND SUPERVISION (March 31, 2004).

      468

      [131] See John J. Donohue III & Peter Siegelman, Allocating Resources Among Prisons and Social Programs in the Battle Against Crime, 111. LEGAL STUD. 1 (1998).

      470

      [132] Lee, 957 F.2d at 782 citing New Orleans3 v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

      472

      [133] Beach Communications, 508 U.S. at 313-14, 113 S.Ct. 2096.

      474

      [134] Busic, 446 U.S. at 405, 100 S.Ct. 1747 citing Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

      476

      [135] Id. at 410, 100 S.Ct. 1747.

      478

      [136] Buck Buchanan, Zachary W. Carter, Robert J. Cindrich, Robert J. Cleary, Veronica F. Coleman-Davis, Robert J. Del Tufo, W. Thomas Dillard, John J. Gibbons, Saul A. Green, J. Alan Johnson, James E. Johnson, Gaynelle Griffin Jones, Nathaniel R. Jones, Nicholas Katzenbach, Timothy K. Lewis, Andrew J. Maloney, John S. Martin Jr., William A. Norris, Denise E. O'Donnell, Stephen M. Orlofsky, A. John Pappalardo, James G. Richmond, Benito Romano, Stanley J. Roszkowski, Herbert J. Stern, Harold R. Tyler Jr., Ronald Woods, Sharon J. Zealey, Donald E. Ziegler.

      480

      [137] 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

      482

      [138] 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

      484

      [139] Id. at 289, 100 S.Ct. 1133.

      486

      [140] 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

      488

      [141] Lockyer v. Andrade, 538 U.S. 63, 64, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

      490

      [142] Id. at 74 n. 1, 123 S.Ct. 1166 (2003).

      492

      [143] Id. at 72-73, 123 S.Ct. 1166.

      494

      [144] Ewingv. California, 538 U.S. 11, 23-24, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (O'Connor, J.).

      496

      [145] See Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir.1999), cert, denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

      498

      [146] See Ewing, 538 U.S. at 29, 123 S.Ct. 1179 (O'Connor, J.).

      500

      [147] Solem, 463 U.S. at 292-294, 103 S.Ct. 3001.

      502

      [148] Id. at 288, 103 S.Ct. 3001.

      504

      [149] See PSR ¶ 73.

      506

      [150] See Solem, 463 U.S. at 292-293, 103 S.Ct. 3001.

      508

      [151] See Rummel, 445 U.S. at 275, 100 S.Ct. 1133.

      510

      [152] See Part III.B.2, supra.

      512

      [153] See id.

      514

      [154] Harmelin, 501 U.S. at 1004-05, 111 S.Ct. 2680 (Kennedy, J., concurring).

      516

      [155] Solem, 463 U.S. at 291, 103 S.Ct. 3001.

      518

      [156] Id. at 299, 103 S.Ct. 3001.

      520

      [157] Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring).

      522

      [158] Government's Resp. Mem. Re: Constitutionality of Mandatory Minimum Sentences Pursuant to 18 U.S.C. § 924(c) at 23.

      524

      [159] 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982).

      526

      [160] 501 U.S. at 997, 111 S.Ct. 2680 (Kennedy, J., concurring).

      528

      [161] Id. at 998, 111 S.Ct. 2680 (Kennedy, J., concurring); see also id. at 1004, 1005, 111 S.Ct. 2680 (Kennedy, J., concurring).

      530

      [162] Id. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring).

      532

      [163] Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (O'Connor, J.).

      534

      [164] Davis, 454 U.S. at 375, 102 S.Ct. 703.

      536

      [165] 324 F.Supp.2d 1230 (D.Utah 2004); see also United States v. Booker, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004)(granting certiorari to review this issue).

      538

      [166] ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      540

      [167] See Croxford, 324 F.Supp.2d at 1248.

      542

      [168] 18 U.S.C. § 3553(a) (listing factors to be considering in imposing sentence).

      544

      [169] 7 F.3d 1471 (10th Cir.1993).

      546

      [170] Ex parte Grossman, 267 U.S. 87, 120, 45 S.Ct. 332, 69 L.Ed. 527 (1925).

      548

      [171] Id. at 121, 45 S.Ct. 332.

      550

      [172] U.S. CONST., art. I, § 2.

      552

      [173] Id.

      554

      [174] Ex parte Grossman, 267 U.S. at 120, 45 S.Ct. 332.

      556

      [175] U.S. Attorney's Manual § 1-2.111, available at www.usdoj.gov/pardon/petitions.htm.

      558

      [176] See Part III. B.2, supra.

      560

      [177] U.S. CONST, art. I § 1.

      562

      [178] United States v. Then, 56 F.3d 464, 466 (2nd Cir. 1995) (Calabresi J., concurring) (citing Computer Associates Intern., Inc., v. Altai, Inc., 982 F.2d 693, 712 (2nd Cir.1992)) (exhorting Congress to resolve an issue); Brock on Behalf of Williams v. Peabody Coal Co., 822 F.2d 1134, 1152-53 (D.C.Cir.1987) (Ginsburg, J., concurring) (stating that "Congressional attention to this matter may well be in order").

      564

      [179] Associate Justice Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting, at 4 (Aug. 9, 2003) available at http://www.supremecourtus.gov/publicin fo/speeches/sp—08-09-03.html (last visited November 16, 2004).

      566

      [180] 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

      568

      [181] Id. at 396, 109 S.Ct. 647.

      570

      [182] United States v. Chalan, 812 F.2d 1302, 1315 (10th Cir.1987).

      572

      [183] Deal v. United States, 508 U.S. at 137, 113 S.Ct. 1993 (Stevens, J., dissenting).

  • 2 I. Assault and Battery: Reconciling Harm with Culpability

    What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.

    The first section of our course deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?

    We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

    • 2.1 I.A. Righting (or Punishing) the Wrong

      • 2.1.1 Vosburg v. Putney--"The Schoolboy Kicker"

        Should defendants be liable for unforeseeable injuries?

        1

        VOSBURG, by guardian ad litem, Respondent, vs. PUTNEY, by guardian ad litem, Appellant.

        Supreme Court of Wisconsin
        80 Wis. 523; 50 N.W. 403

        October 26, Argued.
        November 17, 1891, Decided.

        2

        APPEAL from the Circuit Court for Waukesha County.

        3

        The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than fourteen years of age, and the defendant a little less than twelve years of age.

        4

        The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84.

        5

        The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and require no repetition.

        6

        On the last trial the jury found a special verdict, as follows: " (1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury ? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) What sum do you. Assess the damages of the plaintiff? A. $2,500."

        7

        The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff for $2,500 damages and costs of suit was duly entered. The defendant appeals from the judgment.

        8

        T. W. Haight, attorney, and J. V. Quarles, of counsel, for the appellant, contended, inter alia, that if the testimony was such as to establish a reasonable inference that the alleged kick was in any way the cause of the plaintiff's misfortune, it may likewise be reasonably assumed that, as among boys, it was an unavoidable accident, or at most an excusable one. Harvey v. Dunlap, Hill & Denio Supp. 195; Bullock v. Babcock, 3 Wend. 391; Webster's Dict. ACCIDENT; Barry v. U. 8. Mut. Acc. Ass'n, 23 Fed. Rep. 712; U. S. Mut. Ace. Ass'n v. Barry, 131 U. S. 100; Brown v. Kendall, 6 Cnsh. 292. Negligence is the real ground of possible recovery in a case like this. Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354. And the rule governing liability as well as damages should be the same as in cases of negligence. Crandall v. Goodrich Transp. Co. 16 Fed. Rep. 75; McGrew v. Stone, 53 Pa. St. 441-2; Putnam v. B. (& 8. A. R. Co. 55 N. Y. 118; Servatius v. PicJiel, 34 Wis. 299; Stewart v. Ripon, 38 id. 590; Ingram v. Rankin, 47 id. 409; Harvey v. Dunlap, Hill & Denio Supp. 195, cited in 51 N. Y. 488; Paxton v. Boyer, 67 111. 132; Morris v. Piatt, 32 Conn. 75; Phillips v. Dickerson, 85 111. 11; Marvin v. ?., M. & St. P. R. Co. 79 Wis. 140. The question of contributory negligence, therefore, on the part of the plaintiff or of his parents, should have been submitted as requested. Setting aside the question of contributory negligence, however, " in order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the wrongful act and that it ought to have been foreseen in the light of attending circumstances " Atkinson v Goodrich Transp. Co 60 Wis 141; Mil. & St P. R. Co v. Kellog, 94 U S 469; 2 Thomp. Neg. 1083. That the bone inflammation suffered by plaintiff was not a natural or probable, or ordinary result of defendant’s act is conceded, and therefore a nonsuit should have been granted. Vedder v. Hildreth Wis 427; Cooley Torts 62, 69; Addison Torts (Wood's ed.), 1, 5, and note; Bigelow, Torts, 312; Miles v. A., M. & O. R. Co. Receivers, 4 Hughes, 172; Scheffer v. Railroad Co. 105 U. S. 249; Moak's Underhill Torts, 16; Stewart v. Ripon, 38 Wis. 590; Sharp v. Powell, L. R. 7 C. P. 258. There being no evil intent or its equivalent shown, there should be no recovery. 2 Greenl. Ev. sees. 82-85; 2 Addison, Torts, sec. 790; Cooley, Torts, 162; Coward v. Baddeley, 4 Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251; Krall v. Lull, 49 id. 405; Alderson v. Waistell, 1 Car. & K. 358; Brown v. Kendall, 6 Cush. 292; Morris v. Piatt, 32 Conn. 75-86. The motive and purpose being innocent and harmless, the law implies a license for the defendant's act. Hooker v. ?. M. & St. P. R. Co. 76 Wis. 546; Adam v. Freeman, 12 Johns. 408; Cooley, Torts, 303, 163; Thayer v. Jarvis, 44 Wis. 390.

        9

        For the respondent there was a brief by Ryan & Merton, and oral argument by T. E Ryan. They argued, among other things, that where an infant commits a wrong to another, whether wilfully or negligently, or by the direct application of force, or the indirect results of force, the law, while regarding his youth or inexperience and making due allowance for absence of evil intent or capacity for evil intent, proceeds upon the reason that damages directly resulting to another from the wrong he has committed ought to be recompensed. Cooley, Torts, 98, 99; Hutching v. Engel, 17 Wis. 230; School Dist. v. Bragdon, 23 N. H. 507; Zouch v. Parsons, 3 Burr. 1802; Jennings v. Rundall, 8 Term R.335; Conway v. Reed, 66 Mo. 346; Oliver v. McClellan 21 Ala. 675; Barham v. Tuberville, 1 Swan (Tenn.), 437; Bullock v. Babcock, 3 Wend. 391; Peterson v. Haffner, 59 Ind. 130 Conklini) Thompson, 29 Barb. 218; Neal v. Gillett. 23 Conn 437 The party who commits a trespass or other wrongful act is liable for all the direct injury resulting from such act although such resulting injury could not have been contemp'lated as the probable result 3 Suth. Dam. 714; McNamara v. Clintonville, 62 Wis 207; Oliver v. La Valle, 36 id 592; Stewart v. Ripon 38 id. 584; Brown v C., M & St. P. R. Co. 54 id. 362; Ehrgott v Mayor, 96 N.Y. 280. It being shown that the defendant knowingly and consciously kicked the plaintiff and injured him, the nonsuit was properly denied.

        11

        LYON, J. Several errors are assigned, only three of which will be considered.

        12

        1. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that " the intention to do harm is of the essence of an assault." Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the inten-tion to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.

        13

        Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

        14

        2. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff (who was plaintiff's attending physician), elicited on cross- examination tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler also one of the plaintiff's witnesses, first saw it March 8th. Dr Philler was called as a witness after the examination of the plaintiff and Dr Bacon. On his direct examination he testified as follows: " I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More and heard where he said he received this kick on that day " (Miss More had already testified that she was the teacher of the school and saw defendant standing in the aisle by his seat and' kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr Philler: “After hearing that testimony, and what you know fo the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy’s leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.”

        15

        It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness and he was required to give his opinion upon an imperfect and insufficient hypothesis,—one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarilv was, on that fact alone, the opinion of Dr Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct.

        16

        Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Philler should have been sustained. The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment.

        17

        3. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. C, M. & St. P. P. Co. 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu and not ex delicto, and hence that a different rule of damages—the rule here contended for—was applicable. We did not question that the rule in actions for tort "was correctly stated. That case rules this on the question of damages.

        18

        The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal.

        19

        By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

      • 2.1.2 Alcorn v. Mitchell--"The Angry Spitter"

        Should damages for battery encompass indignities as well as physical injuries? Should juries be able to assign extra damages for particularly malicious or bad-natured conduct?

        1
        63 Ill. 553
        Supreme Court of Illinois.
        WILLIAM E. ALCORN
        v.
        ANDREW J. MITCHELL.

        June Term, 1872.

        2

        APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

        3

        Messrs. SHAW, HAYWARD & SMITH, for the appellant.

        4

        Messrs. WILSON & HUTCHINSON, and Mr. JONATHAN PALMER, for the appellee.

        5

        Opinion

        6

        Mr. JUSTICE SHELDON delivered the opinion of the Court:

        7

        The ground mainly relied on for the reversal of the judgment in this case is, that the damages are excessive, being $1000.

        8

        The case presented is this: There was a trial of an action of trespass between the parties, wherein the appellee was defendant, in the circuit court of Jasper county. At the close of the trial the court adjourned, and, immediately upon the adjournment, in the court room, in the presence of a large number of persons, the appellant deliberately spat in the face of the appellee.

        9

        So long as damages are allowable in any civil case, by way of punishment or for the sake of example, the present, of all cases, would seem to be a most fit one for the award of such damages.

        10

        The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.

        11

        Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.

        12

        It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.

        13

        An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice. The defendant appears to be a man of wealth; we can not say that he has been made to pay too dearly for the indulgence.

        14

        We have carefully looked into the instructions given and refused, and do not perceive any substantial error in respect to them.

        15

        The judgment must be affirmed.

        16

        Judgment affirmed.

    • 2.2 I.B. Intentional, Negligent, or Something in Between?

      • 2.2.1 Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"

        Should intentional contact with an object attached to the plaintiff constitute battery? For the tort of assault, should we consider if defendant intended to cause apprehension in the plaintiff?

        1
        654 A.2d 690 (1995)
        2
        Victoria A. PICARD
        v.
        BARRY PONTIAC-BUICK, INC. et al.
        3
        93-221-A.
        4

        Supreme Court of Rhode Island.

        5
        February 9, 1995.
        6

        691*691 Peter M. Cosel, Donato D'Andrea, Newport, for plaintiff.

        7

        Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

        9
        OPINION
        10

        LEDERBERG, Justice.

        11

        This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

        13
        FACTS AND PROCEDURAL HISTORY
        14

        This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

        15

        The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

        16

        Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

        17

        692*692 The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

        18

        The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

        19

        Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

        20

        The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

        21

        The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

        22

        On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

        23
        "This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. 693*693 Therefore, this change is probably causally related with the assault."
        24

        On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

        25
        "It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)
        26

        The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

        27

        On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

        28
        "To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."
        29

        On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled `Evidence of Charges for Medical and Hospital Services'" that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

        30

        The amended affidavit stated in part:

        31
        "Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *
        32
        (3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.
        33
        (4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."
        34

        Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

        35

        The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

        37
        STANDARD OF REVIEW
        38

        The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, 694*694 Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

        40
        ASSAULT AND BATTERY
        41

        The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

        42

        Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I. 1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

        43

        The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

        44

        We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

        45

        In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

        46
        "Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." (Emphasis added.)
        47

        The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

        49
        PROOF OF CAUSATION
        50

        The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was 695*695 not competent.[3] We agree.

        51

        At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

        52

        In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I. 1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

        54
        DAMAGES

        56
        A. Compensatory Damages
        57

        The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

        58

        The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's 696*696 mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

        59

        In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

        60

        This court will not disturb an award for pain and suffering unless the award "`shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

        62
        B. Punitive Damages
        63

        The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

        64

        In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

        66

        [1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

        68

        [2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

        70

        [3] The affidavit was admitted under G.L. 1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

        71

        "(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

        73

        [4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

        75

        [5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

        76

        "Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

        77

        "A Well, I was shaken, but maybe not in the terms — but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

        78

        and again,

        79

        "Q Are you claiming that he [Silvia] physically picked you up and swung you around?

        80

        "A Well, my feet wasn't hitting the floor. * * *.

        81

        "Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

        82

        "A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

      • 2.2.2 Garratt v. Dailey--"The Chair-Pulling Five Year Old"

        Should defendants be liable if they knowingly expose the plaintiff to a near certainty of harmful contact? If so, should liability still be assigned even if the defendant did not act for the purpose of hurting the plaintiff?

        2

        Page 197

        5
        46 Wn.2d 197

        8
        279 P.2d 1091

        11
        Ruth GARRATT, Appellant,
        v.
        Brian DAILEY, a Minor, by George S. Dalley, his Guardian ad
        Litem, Respondent.

        14
        No. 32841.

        17
        Supreme Court of Washington, Department 2.

        20
        Feb. 14, 1955.
        Rehearing Denied May 3, 1955.
        22

        Page 198

        24

                [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

        26

                Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

        28

                HILL, Justice.

        30

                The liability of an infant for an alleged battery is presented to this court for the first time. Brian

        32

        Page 199

        34

        'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

        36

        'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

        38

                It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate

        40

        Page 200

        42

                The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

        44

                In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

        46

                The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

        48

                It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

        50

        'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

        52

        '(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

        54

        '(b) the contact is not consented to by the other or the

        56

        Page 201

        58

        '(c) the contact is not otherwise privileged.'

        60

                We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

        62

        'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

        64

                We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

        66

                The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

        68

                In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

        70

        'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize

        72

        Page 202

        74

                A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

        76

                While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

        78

                It will be noted that the law of battery as we have

        80

        Page 203

        82

                From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

        84

                Nor do we find any error in the record that warrants a new trial.

        86

                What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

        88

                It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial

        90

        Page 204

        92

                The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

        94

                It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

        96

                The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

        98

        Page 205

        100

                The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

        102

                The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

        104

                Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

        106

                Remanded for clarification.

        108

                SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.

      • 2.2.3 Wallace v. Rosen--"The Fire Drill and the Blocked Stairwell"

        Should there be certain purposes for which unconsented, intentional contact will be permitted by law? And should mere knowledge and appreciation of a risk be regarded as equivalent to an intention to inflict harm?

        1
        765 N.E.2d 192 (2002)
        2
        Mable WALLACE, Appellant-Plaintiff,
        v.
        Harriet ROSEN and Indianapolis Public Schools, Appellees-Defendants.
        3
        No. 49A02-0106-CV-419.
        4

        Court of Appeals of Indiana.

        5
        March 22, 2002.
        6

        194*194 Elaine Parran Boyd, Lee, Burns & Cossell, LLP, Indianapolis, IN, Attorney for Appellant.

        7

        Kevin C. Schiferl, Julia Blackwell Gelinas, Allison S. Avery, Locke Reynolds LLP, Indianapolis, IN, Attorneys for Appellees.

        9
        193*193 OPINION
        10

        KIRSCH, Judge.

        11

        Mable Wallace appeals the jury verdict in favor of Indianapolis Public Schools (IPS) and Harriet Rosen, a teacher for IPS. On appeal, Wallace raises the following issues:

        12

        I. Whether the trial court erred in refusing to give her tendered jury instruction regarding battery.

        13

        195*195 II. Whether the trial court erred in instructing the jury regarding the defense of incurred risk.

        14

        We affirm.

        16
        FACTS AND PROCEDURAL HISTORY
        17

        In 1994, Rosen was a teacher at Northwest High School in Indianapolis. On April 22, 1994, the high school had a fire drill while classes were in session. The drill was not previously announced to the teachers and occurred just one week after a fire was extinguished in a bathroom near Rosen's classroom.

        18

        On the day the alarm sounded, Wallace was at the high school delivering homework to her daughter Lalaya. Because Wallace was recovering from foot surgery and Lalaya's class was on the second floor, Lalaya's boyfriend Eric Fuqua accompanied Wallace up the stairs. Wallace and Fuqua were near the top of the staircase when they saw Lalaya and began to speak with her. Jamie Arnold, a student who knew Lalaya and her mother, joined the conversation. The alarm then sounded and students began filing down the stairs while Wallace took a step or two up the stairs to the second floor landing.

        19

        In response to the alarm, Rosen escorted her class to the designated stairway and noticed three or four people talking together at the top of the stairway and blocking the students' exit. Rosen did not recognize any of the individuals but approached "telling everybody to move it." Transcript at 35. Wallace, with her back to Rosen, was unable to hear Rosen over the noise of the alarm and Rosen had to touch her on the back to get her attention. Id. at 259. Rosen then told Wallace, "you've got to get moving because this is a fire drill." Id. 259.

        20

        At trial, Wallace testified that Rosen pushed her down the stairs. Id. at 128. Rosen denied pushing Wallace and testified that Wallace had not fallen, but rather had made her way down the stairs unassisted and without losing her balance. Id. at 265-66.

        21

        At the close of the trial, Wallace tendered an instruction concerning civil battery. Over Wallace's objection, the court refused to read the instruction to the jury.[1] IPS and Rosen tendered an instruction concerning the defense of incurred risk on the basis that Wallace had continued up the stairs after hearing the alarm, had stopped at the landing to talk, and had blocked the students' exit. Over Wallace's objection, the court gave the incurred risk instruction. The jury found in favor of IPS and Rosen, and Wallace now appeals.

        23
        DISCUSSION AND DECISION
        24

        Wallace claims that the trial court erred both in refusing to give the tendered jury instruction concerning battery and in giving the instruction concerning incurred risk as a defense to a claim of negligence. Instruction of the jury is left to the sound discretion of the trial court. Control Techniques, Inc. v. Johnson, 737 N.E.2d 393, 400 (Ind.Ct.App.2000). Our review of a trial court's decisions is highly deferential, and we will not disturb the court's judgment absent an abuse of that discretion. Id.

        25

        A party is normally entitled to have a tendered instruction read to the jury. Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1104 (Ind.Ct.App.1997), 196*196 trans. denied (1998); Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.Ct.App. 1993), trans. denied (1994). In determining whether the trial court erroneously refused a tendered instruction, we consider: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the instruction is covered by other instructions. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind.Ct.App.1999); Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 688 (Ind.Ct.App.1998), trans. denied. An instruction is properly rejected if it would tend to mislead or confuse the jury. Barnard v. Himes, 719 N.E.2d 862, 868 (Ind. Ct.App.1999), trans. denied. Further, "`[e]ven if the instruction is a correct statement of the law, is supported by the evidence, and is not covered by the other instructions, we will not reverse unless the failure to give the instruction substantially and adversely affects the rights of the complaining party so as to quite likely have affected the result.'" Id. (quoting Miller v. Ryan, 706 N.E.2d 244, 248 (Ind. Ct.App.1999), trans. denied).

        27
        I. Battery Instruction
        28

        Wallace first argues that it was error for the trial court to refuse to give the jury the following tendered instruction pertaining to battery:

        29
        A battery is the knowing or intentional touching of one person by another in a rude, insolent, or angry manner.
        30
        Any touching, however slight, may constitute an assault and battery.
        31
        Also, a battery may be recklessly committed where one acts in reckless disregard of the consequences, and the fact the person does not intend that the act shall result in an injury is immaterial.
        32

        Appellant's Brief at 7.

        33

        Wallace argues that the omission of the instruction was error because the instruction was an accurate statement of the law, was supported by the evidence, and was not covered by any other instruction read to the jury. Id. at 6. Appellees respond that the instruction was properly omitted because there was no evidence presented that supported a battery instruction. Id. at 3.

        34

        We agree with Appellees. The Indiana Pattern Jury Instruction for the intentional tort of civil battery is as follows: "A battery is the knowing or intentional touching of a person against [his] [her] will in a rude, insolent, or angry manner." 2 Indiana Pattern Jury Instructions (Civil) 31.03 (2d ed. Revised 2001).[2] Battery is an intentional tort. Boruff v. Jesseph, 576 N.E.2d 1297, 1300 (Ind.Ct.App.1991). In discussing intent, Professors Prosser and Keeton made the following comments:

        35
        In a loose and general sense, the meaning of `intent' is easy to grasp. As Holmes observed, even a dog knows the difference between being tripped over and being kicked. This is also the key distinction between two major divisions of legal liability—negligence and intentional torts....
        36
        [I]t is correct to tell the jury that, relying on circumstantial evidence, they may infer that the actor's state of mind was the same as a reasonable person's state of mind would have been. Thus, ... the defendant on a bicycle who rides down a 197*197 person in full view on a sidewalk where there is ample room to pass may learn that the factfinder (judge or jury) is unwilling to credit the statement, "I didn't mean to do it."
        37
        On the other hand, the mere knowledge and appreciation of a risk—something short of substantial certainty—is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has to be drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.
        38
        The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff's own good.
        39

        W. PAGE KEETON et al., PROSSER AND KEETON ON THE LAW OF TORTS, § 8, at 33, 36-37 (5th ed. 1984) (footnotes omitted).

        40

        Wallace, Lalaya, and Fuqua testified that Rosen touched Wallace on the back causing her to fall down the stairs and injure herself. For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent, or angry manner, i.e., that she intended to invade Wallace's interests in a way that the law forbids.

        41

        Professors Prosser and Keeton also made the following observations about the intentional tort of battery and the character of the defendant's action:

        42
        [I]n a crowded world, a certain amount of personal contact is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a casual jostling to make a passage....
        43
        The time and place, and the circumstances under which the act is done, will necessarily affect its unpermitted character, and so will the relations between the parties. A stranger is not to be expected to tolerate liberties which would be allowed by an intimate friend. But unless the defendant has special reason to believe that more or less will be permitted by the individual plaintiff, the test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity.
        44

        KEETON et al., § 9, at 42 (emphasis added).

        45

        During the trial, Wallace gave the following testimony concerning the manner in which Rosen touched her:

        46
        Q [Rosen] took both hands and placed them on your shoulder blades?
        47
        A Not across my shoulder. She had her finger tips [sic] and my shoulder, and turned me around like, and moving it [sic].
        48
        Q Which way did she turn you?
        49
        A She turned me—I was going up when she turned me. She turned me towards the stairwells.
        50
        198*198 Q So, you're standing here, hands come on, you're turned. Are you turned this way towards the wall? Or this way towards the open stairs?
        51
        A Towards the open stairs.
        52
        Q And, in fact, your testimony is that she took her hands, both of them, placed them on your shoulders or approximately here.
        53
        A Um-hum. (affirmative response).
        54
        Q Turned you 180 degrees around?
        55
        A She didn't force turn me. But she put her hands there, and turned me and told me to move it.
        56
        Q And she did so 180 degrees?
        57
        A Not to 180 degrees, no.
        58
        Q Half that?
        59
        A Yeah, half that.
        60
        Q Okay, about 90. So now you're like this. Now where is Ms. Rosen?
        61
        A She's still standing up there.
        62
        ...
        63
        Q What happened next, Ms. Wallace?
        64
        A That's when I slipped. I turned around—when she turned me around, that's when I slipped. Because one of my—my left foot that I had the surgical [sic] on, that's when I slipped.
        65

        Transcript at 126-28.

        66

        Viewed most favorably to the trial court's decision refusing the tendered instruction, the foregoing evidence indicates that Rosen placed her fingertips on Wallace's shoulder and turned her 90° toward the exit in the midst of a fire drill. The conditions on the stairway of Northwest High School during the fire drill were an example of Professors Prosser and Keeton's "crowded world." Individuals standing in the middle of a stairway during the fire drill could expect that a certain amount of personal contact would be inevitable. Rosen had a responsibility to her students to keep them moving in an orderly fashion down the stairs and out the door. Under these circumstances, Rosen's touching of Wallace's shoulder or back with her fingertips to get her attention over the noise of the alarm cannot be said to be a rude, insolent, or angry touching. Wallace has failed to show that the trial court abused its discretion in refusing the battery instruction.

        67

        Furthermore, even if an instruction on battery was appropriate, Wallace's inclusion of language that "a battery may be recklessly committed" created an instruction that was likely to mislead or confuse the jury under the facts of this case. In the comment section of the pattern instruction for battery, the Civil Instruction Committee ("Committee"), citing three cases, agrees that "a battery may be recklessly committed where one acts in reckless disregard of the consequences ..." 2 Indiana Pattern Jury Instructions (Civil) 31.03, comments. However, these three cases represent a type of recklessness that reveals the actor's intent to commit the battery. See Kline v. Kline, 158 Ind. 602, 64 N.E. 9 (1902) (the defendant's intent to assault a woman and her children could be found in the defendant's actions of threatening to shoot them and of pouring kerosene and attempting to light a match in furtherance of the defendant's threat to burn down the house); Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889) (the supreme court, ignoring the defendant's statement that he didn't mean to hit the plaintiff, found that the defendant committed assault and battery when he rode his bicycle over the plaintiff who was standing on one side of a fourteen-foot-wide sidewalk in broad daylight)[3]; Reynolds v. 199*199 Pierson, 29 Ind.App. 273, 64 N.E. 484 (1902) ("horse play" in which the defendant jerked and pulled with sufficient force to throw the plaintiff off another's arm and injure him revealed a reckless disregard of the consequences and thus supplied grounds for inferring defendant's constructive intent and the willful act of battery).

        68

        The facts in this case can be distinguished from those cited by the Committee. Rosen's actions were clearly not intentional like the facts in Kline, nor can it be said that Rosen's touching arose from a recklessness or wanton disregard of human life and safety found in Mercer. Quite the contrary, the actions that Rosen took were intended to keep the student traffic flowing out of the building and away from any potential danger. Rosen's actions are reasonably interpreted as trying to prevent danger to human life and safety that was created by Wallace's presence at the top of the stairs. Furthermore, from the record before us it is clear that Rosen was not engaging in "horse play" like that found in Reynolds. Wallace and Rosen did not know each other before the fire drill. Any touching arose only in response to the fire drill and the attempt to facilitate a safe exit for staff and students from the building. The inclusion of the reckless instruction with the intentional tort of battery under the facts of this case would have allowed the jury to use a lesser standard to convict Rosen and IPS of battery. We find that the inclusion of the "reckless" language in the battery instruction would have been misleading and made the instructions as a whole confusing to the jury.[4]

        69

        Finally, it cannot be said that Wallace's rights were substantially and adversely affected by the court's failure to give the battery instruction. There is a well-established "`duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children under their authority.'" Mark v. Moser, 746 N.E.2d 410, 414 (Ind.Ct.App.2001) (quoting Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind.1987)). As a teacher, this duty of care fell on Rosen. A fire had been actually set in the bathroom on Rosen's floor less than a week before the fire alarm sounded. On April 22, 1994, with no prior knowledge whether the alarm signaled a drill or a fire, Rosen exercised ordinary and reasonable care when she tried to get the students to exit as quickly as possible. Finding Wallace and three others creating a bottleneck at the top of the staircase required Rosen to take quick action. It was necessary for Rosen to both raise her voice and touch Wallace's back to get her attention. When Wallace objected to being touched and did not move, it was also reasonable for Rosen to turn Wallace toward the stairs and tell 200*200 her to get moving. Failing to give the battery instruction was not error because, even if given, the facts of this case would not have supported a claim for intentional battery.[5]

        71
        II. Defense of Incurred Risk Instruction
        72

        Wallace next argues that the trial court erred in giving a jury instruction concerning the defense of incurred risk. Indiana's Comparative Fault Act does not apply to governmental entities like IPS and its employees, therefore, tort claims against such defendants are subject to the common law principles of negligence. IC XX-XX-X-X; Hopper v. Carey, 716 N.E.2d 566, 570 (Ind.Ct.App.1999), trans. denied (2000); Hapner v. State, 699 N.E.2d 1200, 1205 (Ind.Ct.App.1998). As a general rule under the Tort Claims Act, as at common law, both contributory negligence and incurred risk operate to bar a plaintiff's recovery against government actors. Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); Hopper, 716 N.E.2d at 570; Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind.Ct.App.1995).

        73

        At the close of the evidence, the trial court instructed the jury on the defenses of contributory negligence and incurred risk.[6] The relationship between these two theories has been discussed in our courts for years. Some courts have deemed incurred risk to be merely "a `species' of contributory negligence while others have demanded that the defenses be kept separate and distinct." Kroger Co. v. Haun, 177 Ind.App. 403, 418, 379 N.E.2d 1004, 1013 (1978). Contributory negligence contemplates an objective standard for the determination of "whether a reasonable man would have so acted under similar circumstances" and is concerned with whether the acceptance of the risk was reasonable and justified in light of the possible benefit versus the risk. Id. at 409, 379 N.E.2d at 1008. Contributory negligence also involves conduct that is "careless" and presupposes a duty and breach thereof, but serves as an affirmative defense to prevent recovery by the plaintiff. Id.

        74

        By contrast, incurred risk demands a subjective analysis with inquiry into the particular actor's knowledge, is concerned with the voluntariness of a risk, and is blind as to reasonableness of risk acceptance. Id. Incurred risk also involves a mental state of "venturousness" and has been described as negating a duty and therefore precluding negligence. Id. Generally, the existence of incurred risk and contributory negligence are questions of fact for the jury. Mauller v. City of Columbus, 552 N.E.2d 500, 502 (Ind.Ct. App.1990); Kroger, 177 Ind.App. at 407, 379 N.E.2d at 1007. The definition of incurred risk includes the proposition that knowledge of a risk may be imputed where such a risk would have been "readily discernable by a reasonable and prudent man under like or similar circumstances." Kroger, 201*201 177 Ind.App. at 410, 379 N.E.2d at 1008.

        75

        Our court has discussed the differences between the two theories, but has concluded that the "importance of reconciling the two definitions becomes apparent only in those situations where incurred risk serves as a defense while contributory negligence does not." Id. at 418, 379 N.E.2d at 1013 "In a negligence action, both defenses are available to a defendant, and the failure to distinguish between the two is without substantive significance." Id. Because instructions were given concerning both contributory negligence and incurred risk and Wallace did not object to the giving of the contributory negligence instruction, the inclusion of the incurred risk instruction did not affect Wallace's substantive rights.

        76

        As previously noted, "Reversal based upon instructional error is warranted only when the trial court's instructions, taken as a whole, misstate the law or mislead the jury." Michigan Mut. Ins. Co. v. Sports, Inc., 698 N.E.2d 834, 839 (Ind.Ct.App. 1998), trans. denied (citing Koziol v. Vojvoda, 662 N.E.2d 985, 991 (Ind.Ct.App. 1996)). The defenses of contributory negligence and incurred risk are both findings of fact for the jury. A finding by the jury that Wallace was even the slightest bit negligent would have resulted in a verdict for Rosen and IPS. Here, Wallace had a duty to exit the building as soon as possible upon hearing the fire alarm. The evidence revealed that she did not in fact leave but instead proceeded up the stairs to continue her conversation. We need not determine whether it was error to instruct the jury on incurred risk. The verdict would not have differed had the jury been properly instructed. Error, if any, in giving the incurred risk instruction did not prejudice the substantial rights of Wallace and therefore, reversal is not required. Smock Materials, 719 N.E.2d at 403.

        78
        III. Attorneys Fees
        79

        Finally, pursuant to Ind. Appellate Rule 66(E), IPS and Rosen seek to recover attorneys fees for this appeal, alleging that Wallace's appeal is frivolous. Our court will only assess appellate damages against an appellant who in bad faith maintains a wholly frivolous appeal. Blue Valley Turf Farms, Inc. v. Realestate Mktg. and Dev., Inc., 424 N.E.2d 1088, 1091 (Ind.Ct.App.1981).

        80

        The Appellees correctly state that bad faith on appeal may be classified as "substantive" or "procedural." Substantive bad faith "`implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.'" Catellier v. Depco, Inc., 696 N.E.2d 75, 79 (Ind.Ct. App.1998) (quoting Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind.Ct.App.1990)). Procedural bad faith "`is present when a party flagrantly disregards the form and content requirements of the Rules of Appellate Procedure, omits and misstates relevant facts appearing in the record, and files briefs appearing to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court.'" Id. Wallace's appeal possesses sufficient merit and is in sufficient compliance with the Appellate Rules to withstand such an award.

        81

        Affirmed.

        82

        SULLIVAN, J., concurs with separate opinion.

        83

        ROBB, J., concurs in part and concurs in result in part with separate opinion.

        84

        SULLIVAN, Judge, concurring.

        85

        I concur in the majority's determination that the trial court did not err in refusing 202*202 Wallace's battery instruction. I do so, however, upon different grounds.

        86

        Although, as quoted by the majority, Wallace testified that she slipped when touched by Rosen, during the same cross-examination she also testified as follows:

        87
        "Q Now were you pushed?
        88
        A And at that time ... [sic]
        89
        Q Let me ask you. Did you slip, or were you pushed?
        90
        A I was pushed. You can't help but slip when somebody pushes you. It's nothing to grab." Transcript at 127-128.
        91

        Additionally, the two other eye-witnesses, Wallace's daughter and the daughter's boy-friend, although perhaps not wholly objective, did testify that Rosen "grabbed" Wallace's arm or shoulder and "turned her around" (Tr. at 41-42, 91), and that when Wallace told Rosen she was a parent not a student, Rosen responded, "I don't care who you are," (Tr. at 91), telling Wallace "to move it," (Tr. at 42).

        92

        Although the evidence as to an arguable battery may be minimal at best, I am unwilling to state that as a matter of law, Rosen's touching was not rude, insolent, or angry. Given the fact that Rosen's touching was intentional, and despite the circumstances, it would not be wholly unreasonable for a jury to conclude that the scenario did not equate with the personal contact contemplated in Professors Prosser and Keeton's "crowded world."

        93

        In my view, and as thoroughly discussed by the majority, the trial court properly rejected the proffered instruction because the last portion, which instructed as to a "recklessly committed" battery, would have been misleading to the jury. The alleged battery here was either an intentional touching in a rude, insolent, or angry manner, or it was no battery at all. In this regard, I respectfully disagree that based upon case authority from a century and more ago,[7] a reckless act which results in a touching may constitute an intentional touching. A touching which occurs through recklessness on the part of the actor is simply inconsistent with a touching which is intentional on the part of the actor.

        94

        Under Part II, the majority holds that the error, if any, in giving Rosen's incurred risk instruction, was harmless. In doing so, the lead opinion states that "[a] finding by the jury that Wallace was even the slightest bit negligent would have resulted in a verdict for Rosen and IPS." Op. at 200 (emphasis supplied). Judge Robb in her separate opinion states that "[b]ecause Wallace's cause of action was against a school, comparative negligence does not apply...." Op. at 204 (emphasis supplied). Both opinions in this regard are premised upon the conclusion that the suit falls under the Tort Claims Act. To the extent that the suit was brought against the school as a governmental entity 203*203 and against Rosen as an employee of that entity, it is clear that the Tort Claims Act was applicable.

        95

        Wallace's complaint alleges that Rosen was in her capacity as a teacher at the time in question and was the agent of the school. It does not, however, specifically assert that Rosen's alleged assault and battery was committed within the scope of Rosen's employment. In separate counts, the complaint also alleged that IPS was negligent in the employment and continued employment of Rosen, and that the continued employment served to ratify the acts of Rosen. Thus viewing the complaint in the context of Ind.Code § 34-13-3-5 (Burns Code Ed. Supp.2001), proceeding both against Rosen individually and against IPS was not precluded. See Bushong v. Williamson, 760 N.E.2d 1090 (Ind. Ct.App.2001).[8]

        96

        Under the facts as they unfolded at trial, it seems that Rosen was clearly acting within the scope of her employment. See Bushong, supra, (acts of the teacher not clearly shown to be authorized or unauthorized and that therefore, the issue of scope of employment was for the trier of fact). Nevertheless, that scenario merely brings I.C. § 34-13-3-5(c)[9] into play. This provision of the statute requires the employer to pay a judgment against the employee when the acts of the latter were within the scope of employment. That burden falls upon the governmental entity whether or not the employee can or cannot be held personally liable.

        97

        Be that as it may, there was not a verdict against either or both of the defendants. For this reason, the various permutations of the Tort Claims Act in situations of this nature are not of determinative consequence.

        98

        Subject to the above observations, I otherwise concur.

        99

        ROBB, Judge, concurring in result in part with opinion.

        100

        I respectfully concur in the result reached by the majority as to the issue of the incurred risk instruction.

        101

        Wallace contends on appeal that the trial court erred in giving an instruction to the jury on the defense of incurred risk. I agree.

        102

        The trial court gave the following instruction over Wallace's objection:

        103
        A person incurs the risk of injury if she knew of a danger, understood the risk involved, and voluntarily exposed herself to such danger.
        104
        In deciding whether the plaintiff incurred the risk, you may consider the experience and understanding of the plaintiff; whether the plaintiff had reasonable opportunity to abandon the course of action; and whether a reasonable person would have abandoned the course of action.
        105
        If you decide that plaintiff incurred the risk of some or all the injuries claimed, then the plaintiff's conduct is negligent.
        106

        Appendix to Appellant's Brief at 39.

        107

        The affirmative defense of incurred risk requires evidence of a plaintiff's actual knowledge and appreciation of the specific risk involved and voluntary acceptance of that risk. Kostidis v. General Cinema 204*204 Corp. of Indiana, 754 N.E.2d 563, 571 (Ind.Ct.App.2001). One of the prongs for determining whether an instruction was erroneously given is whether there is evidence in the record to support giving the instruction. See id. at 570. In this case, I do not believe there was evidence to support giving the instruction.

        108

        Wallace testified that there was not a rail on the right side of the stairwell as she went up, only a rail in the middle of the stairs to her left. Tr. 103-04. She moved to the rail to ascend the stairs and when she got near the top, she saw her daughter and moved back to the right and the wall to talk with her. Then a bell (presumably the fire alarm) rang and students started coming down the stairs. Wallace said to her daughter, "Let me move out of the way before I get knocked down," and she moved up a couple of steps to the landing, where she stood against the wall. Tr. 104. I believe this evidence demonstrates that Wallace knew and appreciated the danger of falling or being otherwise injured if she stayed on the steps, away from the railing, with an ailing foot, and with students coming down the stairs. I do not believe this demonstrates any actual knowledge or appreciation on Wallace's part that there was a danger of her being injured by moving to a place where she thought she would be on steady ground and out of the way of the students. I also do not believe this demonstrates any knowledge or appreciation that someone would instruct her to move and physically turn her around and move her toward the steps. For this reason, I do not believe that there was any evidence in the record to support giving an instruction on incurred risk.

        109

        However, as the majority has noted, errors in instruction are harmless and do not require reversal where the verdict would have been no different had the jury been properly instructed. Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 402 (Ind.Ct.App.1999). Because Wallace's cause of action was against a school, comparative negligence does not apply, and any contributory negligence on Wallace's part would bar her recovery. If, in fact, the jury's verdict was based upon its assessment that Wallace had incurred the risk, the jury also would have undoubtedly found that Wallace's conduct constituted contributory negligence and the verdict would have been the same even if the incurred risk instruction had not been given. Under these circumstances, I agree that the result would not have differed if the erroneous instruction had not been given, and therefore, I concur in the result reached by the majority that reversal is not warranted.

        110

        In all other respects, I concur with the majority opinion.

        112

        [1] Although the master commissioner was not willing to give an instruction on knowing or intentional battery, she was willing to give an instruction on battery arising from reckless disregard for Wallace's welfare. Transcript at 240. Wallace refused the court's offering, reiterating that she wanted the instruction read to the jury as tendered. Id.

        114

        [2] The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E). Winegeart v. State, 665 N.E.2d 893, 905 (Ind.1996).

        116

        [3] The Mercer court cited to the following evidence where a willful wrong could be inferred from recklessness: furious driving, taking unruly animals into crowds, carelessly laying out poison for rats, want of caution towards drunken persons, and carelessly casting logs and the like upon highways. Mercer v. Corbin, 117 Ind. at 451, 20 N.E. at 132. The court also noted cases where intent was found from reckless actions in a case of manslaughter when a man shot a pistol and killed a boy he did not see, and in cases of assault and battery where a boy, in sport, threw mortar and accidentally hit and injured another child, and a boy aiming his arrow at a basket mistakenly hit the plaintiff. The court concluded that these cases were nothing more than a reflection of the general rule, "that from recklessness and wanton disregard of human life and safety, malice and criminal intent may be inferred." Id. at 453, 20 N.E. at 133.

        118

        [4] The inclusion of an intentional battery instruction also would have misled the jury because the court offered the instruction that contributory negligence was a defense to the claimed action. Wallace did not object to the inclusion of this instruction even though contributory negligence is not a defense to an intentional tort.

        120

        [5] Wallace also raises the issue of whether the trial court erred in failing to give the following tendered instruction pertaining to respondeat superior: "An employer is liable for assault and battery committed by an employee upon a third person when the act is done by authority of the employer, either express or implied, or when the act is done by the employee within the scope of employment." Appellant's Brief at 14. Because Wallace has not shown reversible error on the question of omission of the tendered battery instruction and, as such, there can be no vicarious liability for IPS on that charge, we need not address the question of whether it was error to fail to give the respondeat superior instruction.

        122

        [6] The instruction read to the jury on incurred risk tracked instruction number 5.43 of the Indiana Pattern Jury Instructions.

        124

        [7] In Kline v. Kline, 158 Ind. 602, 64 N.E. 9 (1902), there was no touching, and the court was considering the matter of an "assault" as an attempted battery rather than a battery. In Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889), the court did indeed find that from a recklessly committed act which results in a touching, the requisite intent for battery may be inferred. In context, the court merely held that from a reckless act resulting in a touching, the requisite intent to cause the harm or injury may be inferred. (To the same effect is Reynolds v. Pierson, 29 Ind.App. 273, 64 N.E. 484 (1902)). Mercer did not go so far as to say that a recklessly committed act may constitute an intentional touching. One might argue that if civil liability may be found for a reckless touching as well as for an intentional or knowing touching, it is a distinction without a difference. Be that as it may, to the extent that the Mercer and Reynolds decisions may be read to equate reckless conduct with intentional conduct, I believe them to be mistaken.

        126

        [8] Insofar as Wallace's complaint alleges an assault and battery, it could be construed as an allegation of criminal conduct within the purview of IC. § 34-13-3-5(b) (under the current version of this statute this provision has been recodified as subsection (c)).

        128

        [9] Under the current version of the statute, this provision has been recodified as subsection (d).

    • 2.3 I.C. The Restatement Approach to Assault and Battery

      • 2.3.1 Restatement Approach to Assault

        2
        Restatement (Second) of Torts

        5
        § 21. Assault


        8

             (1) An actor is subject to liability to another for assault if

                  (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

                  (b) the other is thereby put in such imminent apprehension.

             (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

      • 2.3.2 Restatement Approach to Battery

        2
        Restatement (Third) of Torts

        5
        Liability For Intentional Physical Harm

        7

             An actor who intentionally causes physical harm is subject to liability for that harm.



        11
        Restatement (Second) of Torts

        13

             (1) An actor is subject to liability to another for battery if

                  (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

                  (b) an offensive contact with the person of the other directly or indirectly results.

             (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

  • 3 II. Assault and Battery: Intent and Autonomy

    In the absence of statutes that clearly delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to draw boundaries on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.

    The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?

    • 3.1 II.A. Latent Sensitivities and Reservations

      • 3.1.1 Wishnatsky v. Huey--"The Overly Sensitive Intruder"

        • 3.1.1.1 II. Wishnatsky v. Huey twiddlydum

          Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?

          1
          Wishnatsky v. Huey
          2
          1998 ND App 8
          3
          North Dakota Court of Appeals
          4
          September 15, 1998
          5

          Civil No. 980067CA. Martin Wishnatsky, Plaintiff and Appellant v. David W. Huey, Defendant and Appellee. Appeal from the District Court for Cass County, East Central Judicial District, the Honorable Georgia Dawson, Judge. Per Curiam. Martin Wishnatsky, P.O. Box 413, Fargo, ND 58107, pro se; Andrew Moraghan, Assistant Attorney General, Attorney General’s Office, 900 East Boulevard Avenue, Bismarck, ND 58505-0041, for defendant and appellee.

          6

          PER CURIAM.[¶1] Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

          7

          [¶2] On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary’s office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

          8

          [¶3] Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for summary judgment of dismissal. The trial court granted Huey’s motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky’s motion.

          9

          [¶4] Wishnatsky appealed, contending the evidence he submitted in response to Huey’s motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey’s motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

          10

          [¶5] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505. “In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence.” Mougey Farms v. Kaspari, 1998 ND 118, ¶ 12, 579 N.W.2d 583. “Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence.” Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, ¶ 5, 574 N.W.2d 823. On a defendant’s motion for summary judgment, the question for the court is “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

          11

          [¶6] “In its original conception [battery] meant the inflicton of physical injury.” VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

          12
            At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C. J. declared, 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.
          14
            The least touching of another’s person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner. 3 William Blackstone, Commentaries *120. On the other hand, “in a crowded world, a certain amount of personal contact is inevitable, and must be accepted.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed. 1984).
          15

          [¶7] The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19(1965):

          16
            18. Battery: Offensive Contact

            (1) An actor is subject to liability to another for battery if

            (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

            (b) an offensive contact with the person of the other directly or indirectly results.

            (2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

            19. What Constitutes Offensive Contact
            A bodily contact is offensive if it offends a reasonable sense of personal dignity.

          18
            In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
          19

          [¶8] Huey moved for summary judgment of dismissal, because, among other things, “as a matter of law, a battery did not occur on January 10, 1996.” Huey supported the motion with his affidavit stating in part:

          20
            8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary’s office during the private meeting. . . . I subsequently learned that the individual’s name is Martin Wishnatsky.
          22

          [¶9] Wishnatsky responded to Huey’s motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

          23
            1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

            2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General’s office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

            3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: “You get out of here.” This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.
          24

          [¶10] We certainly agree with the Supreme Cout’s determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, “Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation.” Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878. As a matter of law, however, Huey’s “rude and abrupt” conduct did not rise to thelevel of battery.

          25

          [¶11] The evidence presented to the trial court demonstrates Wishnatsky is “unduly sensitive as to his personal dignity.” Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky’s forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey’s conduct in response to Wishnatsky’s intrusion into his private conversation with Crary, while “rude and abrupt,” would not “be offensive to a reasonable sense of personal dignity.” In short, an “ordinary person . . . not unduly sensitive as to his personal dignity” intruding upon a private conversation in Wishnatsky’s manner would not have been offended by Huey’s response to the intrusion. We conclude that Huey’s conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial court did not err in granting Huey’s motion for summary judgment dismissing Wishnatsky’s action.

          26

          [¶12] Because we have concluded there was no battery as a matter of law, we need not address the immunity issues Wishnatsky has raised. We need not consider questions, the answers to which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56, ¶ 10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D. 1975).

          27

          [¶13] Affirmed.

        • 3.1.1.2 Wishnatsky's (Plaintiff's) Amended Complaint

          1
          STATE OF NORTH DAKOTA COUNTY OF CASS


          Martin Wishnatsky,
          Plaintiff,
          vs.
          David W. Huey,
          Defendant.


          IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT


          Civil No.

          2
          AMENDED COMPLAINT

          5

          Plaintiff for his complaint, states and alleges as follows:

          6
          Parties

          8

          1. He is a resident of Cass County, North Dakota.
          2. Defendant David W. Huey is an assistant attorney general for the state of North Dakota and a resident of Bismarck. Defendant is being sued in both his individual and official capacities.Jurisdiction
          3. This action arises under the common law of torts.



          11
          Events

          13

          4. Plaintiff has his office on the third floor of 16 Broadway in Fargo and provides paralegal services to attorney Peter Crary whose office is on the same floor. It is very common and a matter of routine for the plaintiff to be in and out of Mr. Crary's office during the day.
          5. On Wednesday morning, January 10th, 1996, at approximately 10:00 a.m. during normal business hours the plaintiff entered Mr. Crary's office to give him certain papers that had been requested. Mr. Crary was speaking with defendant David Huey at the time. As the plaintiff began to enter the office, Mr. Huey snarled: "You get out of here." Simultaneously the defendant threw his body weight against the door to prevent the plaintiff from entering Mr. Crary's office. The pressure of the door being forced against his body by Mr. Huey overcame plaintiff’s forward movement and he was physically forced backwards and out into the hall.
          6. The plaintiff had not said a word to Mr. Huey to provoke this attack. He had done nothing more than to open the door and to begin to walk into Mr. Crary's office, something he routinely did many times every work day.
          7. The plaintiff was shocked and frightened by Mr. Huey's physical attack upon him. In all the time he had been providing paralegal services to Mr. Crary, he had never been physically assaulted or spoken to in a harsh and brutal manner. Plaintiff’s blood pressure began to rise. His heartbeat accelerated and he experienced waves of fear in the pit of his stomach. Plaintiff’s hands also began to shake and his body trembled.
          8. Composing himself, the plaintiff reentered Mr. Crary's office to deliver the papers to him and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into a tirade, stating that he would no longer discuss anything with Mr. Crary, that his time was too valuable, etc. He then stormed out into the hall. The plaintiff then gave Mr. Crary the papers he had originally entered his office to provide and left.
          9. After this experience it took the plaintiff a considerable amount of time to settle down and get into his work routine. He was emotionally upset and frightened by the abusive behavior of the state's representative.



          16
          Cause of Action for Battery

          18

          10. By the actions described in paragraphs 5-8, the defendant intentionally and in anger engaged in violent, offensive, insulting, uninvited and unwanted physical contact with the plaintiff.
          11. This unpermitted contact, as described above, was reasonably offensive to the plaintiffs sense of personal dignity, was unwarranted by the social usages prevalent in an office environment and in the legal community, and was contrary to all good manners.
          12. This offensive contact constituted a battery upon the person of the plaintiff.
          13. Defendant's actions constitute malfeasance in that the battery was a wholly wrongful and unlawful act.



          21
          Damages

          23

          14. Plaintiff is entitled to nominal damages for the battery itself and compensatory damages for the emotional upset, fear and distress caused by the defendants' actions.
          15. Plaintiff requests a trial by jury and such other and further relief as the court may deem suitable.



          27
          Dated this 2nd day of August, 1996.

          Martin Wishnatsky
        • 3.1.1.3 Letters Between Litigants

          1

          Mr. Andrew Moraghan
          Assistant Attorney General
          900 East Boulevard
          Bismarck ND 58505



          4

          RE: Wishnatsky v. Huey
          Civil No. 96-2297



          7

          Dear Mr. Moraghan:

          Enclosed is a draft motion to compel in the above matter. In the interest of allowing the defendant to reconsider his discovery responses, the motion is being sent to you for consideration.

          I will allow you a week or two to consider the motion before filing it. If you need more time or decide voluntarily to supplement the responses served on January 29, 1997, please let me know.

          Sincerely,
          Martin Wishnatsky





          13

          OFFICE OF ATTORNEY GENERAL

          STATE OF NORTH DAKOTA
          May 23, 1997
          15

          Mr. Martin Wishnatsky
          P.O. Box 413 Fargo, ND 58107

          16

          RE: Wishnatsky v. Huey Civil
          No. 96-2297

          17

          Dear Mr. Wishnatsky:

          Thank you for your letter dated May 13, 1997.

          We believe that there were valid grounds for the objections that we interposed to your interrogatories. Therefore, we will not be amending our answers.

          We do not believe that your proposed motion to compel discovery would be substantially justified. Furthermore, we believe that the interrogatories to which we objected were designed to harass the defendant. Therefore, if you elect to file your motion, it is likely that we will seek reasonable expenses, including attorney's fees, incurred in opposing the motion.

          Please feel free to contact me if you have any questions. Thank you.

          Sincerely,

          Andrew Moraghan

          18

          Assistant Attorney
          General Office of Attorney General
          900 East Boulevard Avenue
          Bismarck, ND 58505-0041
          Telephone (701) 328-3640
          Facsimile (701) 328-4300

          19

          jjt
          cc: Dave Huey

        • 3.1.1.4 Wishnatsky's (Plaintiff's) Affidavits

          1

          COUNTY OF CASS

          EAST CENTRAL JUDICIAL DISTRICT


          AFFIDAVIT OF MARTIN WISHNATSKY


          Civil No. 96-2297

          Martin Wishnatsky,
          Plaintiff,

          vs.

          David W. Huey,
          Defendant.






















          33
          COUNTY OF CASS

          EAST CENTRAL JUDICIAL DISTRICT

          AFFIDAVIT OF MARTIN WISHNATSKY


          Civil No. 96-2297

          Martin Wishnatsky,
          Plaintiff,

          vs.

          David W. Huey,
          Defendant.








      • 3.1.2 O'Brien v. Cunard--"The Silent Vaccine Objector"

        Should we expect actors to respect the inner wishes of others, even when those desires contradict—or at least fail to be reflected in—external behavior?

        1

        28 N.E. 266

        Supreme Judicial Court of Massachusetts, Suffolk.

        O'BRIEN

        v.

        CUNARD S.S. CO., Limited.

        Sept. 1, 1891.

        2

        Exceptions from superior court, Suffolk county.

        3

        Action of tort by Mary E. O'Brien against Cunard Steam-Ship Company, Limited. Judgment for defendant. Plaintiff brings exceptions. Exceptions overruled.

        4

        E.N. Hill and Frederic Cunningham, for plaintiff.

        5

        Geo. Putnam and Thos. Russell, for defendant.

        6

        KNOWLTON, J.

        7

        This case presents two questions: First, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on ship-board, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the surrounding circumstances. If the plaintiff's behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 578, 10 N.E.Rep. 474; McCarthy v. Railroad Corp., 148 Mass. 550, 552, 20 N.E.Rep. 182. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of emigrants, to see that they are protected from small-pox by vaccination, and that only those persons who hold a certificate from the medical officer of the steam-ship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship's medical officer to vaccinate such as needed vaccination, were posted about the ship in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff's testimony, which, in this particular, is undisputed, it appears that about 200 women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark;” that she did not hear him say anything to any of them; that upon being passed by they each received a card, and went on deck; that when her turn came she showed him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before, and it left no mark; “that he then said nothing; that he should vaccinate her again;” that she held up her arm to be vaccinated; that no one touched her; that she did not tell him she did not want to be vaccinated; and that she took the ticket which he gave her, certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that purpose. Viewing his conduct in the light of the surrounding circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct. The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.

        8

        Whether there was any evidence of negligence of the surgeon we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is that he is a servant engaged in the defendant's business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the fifth section of the act of congress of August 2, 1882, (22 U.S.St. at Large, 188,) it is provided that “every steam-ship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly competent and qualified surgeon or medical practitioner, who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given in any case of sickness or disease to any of the passengers or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.” Under this statute it is the duty of the ship-owners to provide a competent surgeon, whom the passengers may employ, if they choose, in the business of healing their wounds, and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases; and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steam-ship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person it would be unreasonable to hold them responsible for all the particulars of his treatment when he is engaged in the business of other persons, in regard to which they are powerless to interfere. The reasons on which it is held in the courts of the United States and of Massachusetts that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53-67; Yates v. Brown, 8 Pick. 23. The pilot is engaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such case the owners are not liable. Carruthers v. Sydebotham, 4 Maule & S. 88; The Protector, 1 W.Rob. 45; The Maria, Id. 95. The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the court of appeals of New York in Laubheim v. De Koninglyke N.S. Co., 107 N.Y. 228, 13 N.E.Rep. 781. See, also, Secord v. Railway Co., 18 Fed.Rep. 221; McDonald v. Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct. The evidence excepted to was rightly admitted. Exceptions overruled.

    • 3.2 II.B. The Spectrum Between Subjective and Objective

      • 3.2.1 Leichtman v. WLW Jacor Communications, Inc. -- "The Smoke in the Face Case"

        Should a smoker's license to freely blow his smoke be limited by the sensitivity of non-smokers?

        2

        Page 232

        5
        92 Ohio App.3d 232

        8
        634 N.E.2d 697, 46 A.L.R.5th 939

        11
        LEICHTMAN, Appellant,
        v.
        WLW JACOR COMMUNICATIONS, INC. et al., Appellees.

        14
        No. C-920922.

        17
        Court of Appeals of Ohio, First District, Hamilton County.

        20
        Decided Jan. 26, 1994.
        22

                [634 N.E.2d 698]

        24

        Page 233

        26

                Strauss & Troy and William K. Flynn, Cincinnati, for appellees WLW Jacor Communications, Inc. and William Cunningham.

        28

                Waite, Schneider, Bayless & Chesley, Stanley M. Chesley and Paul M. DeMarco, Cincinnati, for appellee Andy Furman.

        30

        Page 234

        32

                PER CURIAM.

        34

                The plaintiff-appellant, Ahron Leichtman, appeals from the trial court's order dismissing his complaint against the defendants-appellees, WLW Jacor Communications ("WLW"), William Cunningham and Andy Furman, for battery, invasion of privacy, and a violation of Cincinnati Bd. of Health Reg. No. 00083. In his single assignment of error, Leichtman contends that his complaint was sufficient to state a claim upon which relief could be granted and, therefore, the trial court was in error when it granted the defendants' Civ.R. 12(B)(6) motion. We agree in part.

        36

                In his complaint, Leichtman claims to be "a nationally known" antismoking advocate. Leichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host, lit a cigar and repeatedly blew smoke in Leichtman's face "for the purpose of causing physical discomfort, humiliation and distress."

        38

                Under the rules of notice pleading, Civ.R. 8(A)(1) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." When construing a complaint for failure to state a claim, under Civ.R. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. For the court to grant a motion to dismiss, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Id. A court cannot dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal. Id. at 182, 69 O.O.2d at 180, 318 N.E.2d at 560.

        40

                Leichtman contends that Furman's intentional act constituted a battery. The Restatement of the Law 2d, Torts (1965), states:

        42

                "An actor is subject to liability to another for battery if

        44

                "(a) he acts intending to cause a harmful or offensive contact with the person of the other * * *, and

        46

                "(b) a harmful contact with the person of the other directly or indirectly results[; or] 1

        48

        Page 235

        50

                "[c] an offensive contact with the person of the other directly or indirectly results." 2 (Footnote added.)

        52

                [634 N.E.2d 699] In determining if a person is liable for a battery, the Supreme Court has adopted the rule that "[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact." Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. It has defined "offensive" to mean "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness." State v. Phipps (1979), 58 Ohio St.2d 271, 274, 12 O.O.3d 273, 275, 389 N.E.2d 1128, 1131. Furthermore, tobacco smoke, as "particulate matter," has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745-17.

        54

                As alleged in Leichtman's complaint, when Furman intentionally blew cigar smoke in Leichtman's face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. Lacey v. Laird (1956), 166 Ohio St. 12, 1 O.O.2d 158, 139 N.E.2d 25, paragraph two of the syllabus. The rationale is explained by Roscoe Pound in his essay "Liability": "[I]n civilized society men must be able to assume that others will do them no intentional injury--that others will commit no intentioned aggressions upon them." Pound, An Introduction to the Philosophy of Law (1922) 169.

        56

                Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another. Richardson v. Hennly (1993), 209 Ga.App. 868, 871, 434 S.E.2d 772, 774-775. We do not, however, adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Ezra, Smoker Battery: An Antidote to Second-Hand Smoke (1990), 63 S.Cal.L.Rev. 1061, 1090. Also, whether the "substantial certainty" prong of

        58

        Page 236

        60

                Neither Cunningham nor WLW is entitled to judgment on the battery claim under Civ.R. 12(B)(6). Concerning Cunningham, at common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Bell v. Miller (1831), 5 Ohio 250; 6 Ohio Jurisprudence 3d (1978) 121-122, Assault, Section 20. Leichtman's complaint states, "At Defendant Cunningham's urging, Defendant Furman repeatedly blew cigar smoke in Plaintiff's face."

        62

                With regard to WLW, an employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825, 828-829. However, whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact. Id. at 330, 587 N.E.2d at 825. Accordingly, Leichtman's claim for battery with the allegations against the three defendants in the second count of the complaint is sufficient to withstand a motion to dismiss under Civ.R. 12(B)(6).

        64

                By contrast, the first and third counts of Leichtman's complaint do not state claims upon which relief can be granted. The trial court correctly granted the Civ.R. 12(B)(6) motion as to both counts. In his first count, Leichtman alleged a tortious invasion of his privacy. See, generally, Restatement, supra, at 376, Section 652B, as adopted by Sustin v. Fee (1982), 69 Ohio St.2d 143, 145, 23 O.O.3d 182, 183-184, 431 N.E.2d 992, 993. A claim for invasion of privacy may involve any one of four distinct torts. Prosser, Privacy (1960), 48 Cal.L.Rev. 383. The tort that is relevant here requires some substantial intrusion into a plaintiff's solitude, seclusion, habitation, or affairs that would be highly [634 N.E.2d 700] offensive to a reasonable person. See, e.g., Restatement, supra, at 378-379, Section 652B, Comments a to d; Killilea v. Sears Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 198-199, 499 N.E.2d 1291, 1294. Leichtman acknowledges that he willingly entered the WLW radio studio to make a public radio appearance with Cunningham, who is known for his blowtorch rhetoric. Therefore, Leichtman's

        66

        Page 237

        68

                In his third count, Leichtman attempts to create a private right of action for violation of Cincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places. Even if we are to assume, for argument, that a municipal regulation is tantamount to public policy established by a statute enacted by the General Assembly, the regulation has created rights for nonsmokers that did not exist at common law. Bd. of Health Reg., supra, at Sections 00083-7 and 00083-13. Therefore, because sanctions also are provided to enforce the regulation, there is no implied private remedy for its violation. R.C. 3707.99, 3707.48(C); Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 248-250, 75 O.O.2d 291, 293-294, 348 N.E.2d 144, 147 (superseded by statute on other grounds).

        70

                Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases that are important to individuals and corporations and that involve important social issues. The result is justice denied to litigants and their counsel who must wait for their day in court. However, absent circumstances that warrant sanctions for frivolous appeals under App.R. 23, we refuse to limit one's right to sue. Section 16, Article I, Ohio Constitution states, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

        72

                This case emphasizes the need for some form of alternative dispute resolution operating totally outside the court system as a means to provide an attentive ear to the parties and a resolution of disputes in a nominal case. Some need a forum in which they can express corrosive contempt for another without dragging their antagonist through the expense inherent in a lawsuit. Until such an alternative forum is created, Leichtman's battery claim, previously knocked out by the trial judge in the first round, now survives round two to advance again through the courts into round three.

        74

                We affirm the trial court's judgment as to the first and third counts of the complaint, but we reverse that portion of the trial court's order that dismissed the battery claim in the second count of the complaint. This cause is remanded for further proceedings consistent with law on that claim only.

        76

                Judgment accordingly.

        78

                DOAN, P.J., and HILDEBRANDT and GORMAN, JJ., concur.

        80

        ---------------

        82 83

        1 Harmful contact: Restatement of the Law 2d, Torts (1965) 25, Section 13, cited with approval in Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167.

        85

        2 Offensive contact: Restatement, supra, at 30, Section 18. See, generally, Love at 99-100, 524 N.E.2d at 167, in which the court: (1) referred to battery as "intentional, offensive touching"; (2) defined offensive contact as that which is "offensive to a reasonable sense of personal dignity"; and (3) commented that if "an arrest is made by a mere touching * * * the touching is offensive and, unless privileged, is a 'battery.' " Id., 37 Ohio St.3d at 99, 524 N.E.2d at 167, fn. 3. See, also, Schultz v. Elm Beverage Shoppe (1988), 40 Ohio St.3d 326, 328, 533 N.E.2d 349, 352, fn. 2 (citing Restatement, supra, at 22, Chapter 2, Introductory Note), in which the court identified an interest in personality as "freedom from offensive bodily contacts"; Keister v. Gaker (Nov. 8, 1978), Warren App. Nos. 219 and 223, unreported (battery is offensive touching).

      • 3.2.2 Werth v. Taylor -- "The Blood-Transfusion-Refusing Jehovah's Witness"

        Should health care professionals be allowed to administer life-saving, emergency treatment when there is a possibility that the patient would have refused?

        2

        Page 426

        5
        475 N.W.2d 426

        8
        Cindy K. WERTH and Donald E. Werth, Plaintiffs-Appellants,
        v.
        Michael V. TAYLOR, M.D., Defendant-Appellee,
        and
        County of Alpena, d/b/a Alpena General Hospital, Alcona
        Citizens for Health, Inc., d/b/a Alcona Health
        Center, Cheryl L. Parsons, M.D., C.L.
        McDougall, M.D., and Mark J.
        Outman, C.R.N.A.,
        Defendants.

        11
        Docket No. 123785.
        190 Mich.App. 141, 475 N.W.2d 426

        14
        Court of Appeals of Michigan.

        17
        Submitted Jan. 16, 1991, at Lansing.
        Decided July 8, 1991, at 9:05 a.m.
        Released for Publication Oct. 28, 1991.
        19

        Page 427

        21

                [190 MICHAPP 141] Sommers, Schwartz, Silver & Schwartz, P.C. by Stanley S. Schwartz and Richard L. Groffsky, Southfield, for plaintiffs-appellants.

        23

                Stroup, Johnson & Tresidder, P.C. by Charles W. Johnson, Petoskey, for Michael V. Taylor, M.D.

        25

                Before NEFF, P.J., and SHEPHERD and McDONALD, JJ.

        27

                NEFF, Presiding Judge.

        29

                Plaintiffs, Cindy K. Werth and donald[190 MICHAPP 142] E. Werth, appeal as of right from an order of the circuit court granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant, Michael V. Taylor, M.D. We affirm.

        32
        I
        34

                Plaintiffs filed a civil battery claim against defendant Taylor based on his authorization of a blood transfusion for Cindy Werth despite plaintiffs' refusals. Plaintiffs also filed a medical malpractice claim against Taylor and other defendants. The medical malpractice claim is not the subject of this appeal.

        36

                The facts are not in dispute. Cindy and her husband Donald are Jehovah's Witnesses. It is unquestioned that they are both devoted adherents to the tenets of their chosen faith. According to Cindy Werth's deposition testimony, one of the most deeply held of these tenets is the belief that it is a sin to receive blood transfusions.

        38

                In August 1985, Cindy, the mother of two children, became pregnant with twins. About two months before the expected date of delivery, Cindy went to Alpena General Hospital to preregister. She filled out several forms, including a "Refusal to Permit Blood Transfusion" form. Cindy went into labor on May 8, 1986, and entered Alpena General Hospital on that date. While she was being admitted, Donald signed another "Refusal to Permit Blood Transfusion" form.

        40

                Cindy gave birth to her twins on the evening of May 8, 1986. Following delivery, Cindy was found to be bleeding from her uterus. Around 11:30 p.m., Dr. Cheryl Parsons was called. She performed a pelvic examination and discovered a great deal of clotting and a fair amount of bleeding. Dr. Parsons [190 MICHAPP 143] then discussed performing a dilation of the cervix and curettage of the uterine lining (D & C). As a result, Dr. Parsons began discussing with plaintiffs their refusals of blood transfusions.

        42

                Following this discussion, Cindy was taken to surgery. In the early hours of May 9, 1986, she was placed under general anesthesia, and Dr. Parsons proceeded to perform a D & C. The bleeding, however, continued. Defendant Taylor, an anesthesiologist, was then called to the hospital to examine Cindy. Cindy's blood pressure had risen significantly. At approximately 1:30 a.m., defendant Taylor observed mottling and cooling of the skin peripherally, premature ventricular activity, oozing of crystalloid material from her eyes, and a fairly rapid and significant fall in blood pressure. These observations prompted defendant Taylor to determine that a blood transfusion was medically necessary to preserve Cindy's life. He ordered the transfusion of packed red blood cells, but before the transfusion was given, Dr. Parsons informed him that Cindy was a Jehovah's Witness. Dr. Parsons testified that defendant responded by saying something like "that may be, but she needs the blood." A blood transfusion was then given.

        44

                Plaintiffs thereafter filed their medical malpractice action, alleging negligence by various defendants, including Taylor, and alleging battery against defendant Taylor.

        46

                Defendant Taylor filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because Cindy's refusal was not conscious, competent, contemporaneous, and fully informed, defendant did not commit a battery in deciding to infuse blood. The trial court granted this motion and entered an order dismissing plaintiffs' claim against defendant Taylor.

        48

        [190 MICHAPP 144]

        50

        II

        52

                Plaintiffs contend that the trial court erred in granting summary disposition where their refusal of a blood transfusion

        54

        Page 428

        56

                Defendant Taylor, on the other hand, contends that the trial court did not err in granting summary disposition, because plaintiffs did not unequivocally refuse the blood transfusion. He claims that, in the face of a life-threatening emergency, without a fully conscious and contemporaneous refusal, his decision to transfuse blood was appropriate and the court did not err in finding an implicit consent to the procedure authorized by him. Defendant Taylor also contends that the state's interest in preserving life authorized him to override plaintiffs' right to refuse blood transfusions on religious grounds. He claims that, while a patient may knowingly decline treatment, the patient has no right to demand inadequate treatment, and the courts will not require that such be committed.

        59
        III
        61

                Summary disposition based on MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue regarding any [190 MICHAPP 145] material fact and the moving party is entitled to judgment as a matter of law.

        63

                A motion for summary disposition under this subrule tests whether there is factual support for a claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

        66
        A
        68

                A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, --- U.S. ----, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See anno: Patient's right to refuse treatment allegedly necessary to sustain life, 93 A.L.R.3d 67. Indeed, the whole concept of informed consent to treatment leads to an inference of its converse--informed refusal of treatment. Put another way, a competent adult may choose to give or withhold consent to medical treatment.

        70

                [190 MICHAPP 146] However, the law implies the consent of an unconscious patient to medical procedures needed to preserve the patient's life. Delahunt v. Finton, 244 Mich. 226, 229, 221 N.W. 168 (1928). See alsoYoung v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989). If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Id.; Banks v. Wittenberg, 82 Mich.App. 274, 279, 266 N.W.2d 788 (1978). Consent may be expressed or implied. Young, supra; Banks, supra, p. 280, 266 N.W.2d 788. It has been held that consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. Young, supra; Banks, supra.

        72

        Page 429

        74

        B

        76

                Here, the trial court determined that Cindy's refusals were made when she was contemplating merely routine elective surgery and not when life-threatening circumstances, were present and concluded that it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal. The record reflects the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient's well-being.

        78

                The decision of the trial court is supported by one reached by the Supreme Court of Pennsylvania in In re Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987). In Dorone, the patient was a twenty-two-year-old Jehovah's Witness who required a blood transfusion during a cranial operation to [190 MICHAPP 147] relieve an acute subdural hematoma. Without the operation or transfusion, death was imminent. The patient was unconscious, and his parents refused consent to the blood transfusion. The court overruled the parents' refusal, stating:

        80

                Turning to the ultimate decisions the judge rendered, we feel that they were absolutely required under the facts he had before him. Those facts established that medical intervention, which necessarily included blood transfusions, could preserve Mr. Dorone's life. When evidence of this nature is measured against third party speculation as to what an unconscious patient would want there can be no doubt that medical intervention is required. Indeed, in a situation like the present, where there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity. [Id., p. 9, 534 A.2d 452.]

        82

                Here, both plaintiffs signed "Refusal to Permit Blood Transfusion" forms. Following Cindy's delivery of twins, Dr. Parsons discussed these refusals with both plaintiffs. Cindy recalled their conversation as follows:

        84

                She--okay. We told her--she said, "I understand that you're one of Jehovah's Witnesses and that you won't take blood," and Don and I both said, "That's correct." And she said, "You mean to tell me if your wife's dying on the table that you're not going to give her blood?" And we said--Don said, "That's--well, I don't want her to have blood, but I don't want her to die. We want the alternative treatment."

        86

        * * * * * *

        88

                She said there would be no problem. It was a routine D & C, there was no problem with the blood.

        90

        * * * * * *

        92

                [190 MICHAPP 148] The idea of a blood transfusion, she made it sound that it wouldn't even be a problem. Blood wouldn't come into the picture. That's how I understood it.

        94

                Donald also testified regarding the conversation as follows:

        96

                At the time of the consent form, she gave it to my wife and had her look it over and read it, and she said--she acknowledged us as being one of Jehovah's Witnesses, and then she said, "Would you accept blood?" And we replied, "No." And then she made the remark, "Even if she was to die, you'd let her die?"

        98

                And at that point, I questioned, I said, "Well, how serious of a, you know, condition was she?" And the reason why we asked that is because, like I say, in different situations like there are Witnesses who have gone to hospitals, you know, if there was some type of real emergency, a lot of times they're shipped out or flown out. Different ones have gone to Ann Arbor and other places.

        100

                So at that time, I was just kind of questioning, well, how serious was it, you know. First of all, you say it's a routine D & C; then you mention that if she was to die, and so that's why I questioned it, and then she reassured us that there was no problem, nothing to it.

        102

                The following colloquy then occurred between defense counsel and Donald:

        104

        Page 430

        106

                Q. So you never answered the question.

        108

                A. Oh, as far as the idea of dying?

        110

                Q. Yes.

        112

                A. I said no. The answer was no.

        114

                Q. Even if she was to die, you said "No blood."

        116

                A. Right.

        118

                Q. What did your wife say to that?

        120

                [190 MICHAPP 149] A. Well, she was right there and that was her feeling also.

        122

                Q. But you didn't have the feeling that that was part of the problem or a possibility? It was kind of an academic discussion, that she might die?

        124

                A. Well, she said it in a joking manner. It wasn't done as a serious matter. Being with a joking manner, that's why I asked her how serious it was and then she just--"Oh, there's no problem."

        126

                Q. Okay. So you weren't really biting the bullet because it didn't seem to be part of the problem that she was going to die or there was a risk of her dying?

        128

                A. At that point, no.

        130

                Dr. Parsons testified to the conversation as follows:

        132

                I recall discussing with her and her husband the fact that they were Jehovah's Witnesses and that she indicated that this was true. And I said, "Is it true that you do not want any blood transfusions?" She said, "No." He looked at me and said, "Do you think it's that bad?" And I said, "Not right now." And I didn't get any further answer from him in terms of whether he felt that if it became that bad he might change his mind. And I left it at that.

        134

                She also described Donald's response as "wishy-washy."

        136

                Following this discussion, Cindy underwent surgery. She was placed under general anesthesia, and Dr. Parsons performed a D & C. Cindy did not regain consciousness again until after the operation and transfusion of blood were performed. Defendant Taylor testified that he was aware, before deciding to infuse blood, that Cindy was a Jehovah's Witness. No attempt was made to bring Cindy to consciousness in order to obtain her approval, and defendant Taylor testified that this [190 MICHAPP 150] option was "foolhardy." No attempt was made to discuss his decision with Donald because defendant saw nothing to be gained from it. He did not believe Donald could give or deny permission for a blood transfusion.

        139
        C
        141

                We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. The fact that defendant did not obtain the consent of Cindy's husband does not preclude the granting of summary disposition. It is undisputed that Cindy was unconscious when the critical decision regarding the blood transfusion to avoid her death was being made. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. Thus, a record could not be developed regarding Cindy's refusal which would leave open an issue upon which reasonable minds could differ.

        143

                Our holding in this case is narrow. Without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery and summary disposition was proper.

        146
        D
        148

                Because of our resolution of this case, we need not address the issue whether the trial court erred in holding that the state had a valid interest in preventing Cindy's death.

        150

                Affirmed.

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