Sometimes it's the apparently simple words that stir up problems in law cases. This time it's the use of the noun and verb, "use," in a case that the U.S. Supreme Court has agreed to consider (see here).
The Court will try to decide whether or not a defendant "used" a gun while he was engaged in a drug trafficking crime. If he did, the Court would have to support a mandatory five-year sentence. This issue was raised in the case of Michael A. Watson v. United States of America, when the Louisiana man pleaded guilty and was given the mandatory sentence for trading his drugs for an unloaded gun. In the past, various Circuit and Appellate Courts have split on the issue of whether trading a gun for drugs consititutes "using" a gun. The Supreme Court will now have to decide what "using" means in this context.
It is agreed that the defendant, a convicted felon, told an undercover informant that he wanted to purchase a firearm to protect himself from robbers and asked the informant how much one might cost. The informant had a semi-automatic pistol with him, so he offered to trade it for Watson's drugs. The exchange took place and Watson was arrested and then convicted for distributing illegal drugs and for using a firearm "during and in relation to" a drug trafficking crime.
Sixty months of Watson's 262 month sentence included his conviction for "using" a gun. The Court of Appeals rejected Watson's claim that his trade of drugs to the undercover agent did not consitute "use" of a firearm during and in relation to the crime, citing the precedents set by several past cases. It decided that even though the idea of a trade was the agent's, and even though Watson possessed the gun for only moments, and even though the handgun was not loaded, Watson "used" the firearm illegally. In one previous case the Court reasoned that the use of a gun "as an item of barter falls within the plain language of Section 924 above as long as the 'use' occurs during and in relation to a drug trafficking offense." In another previous case the Court ruled: "the firearm is an operative factor in relation to the offense," noting that the "active employment understanding of 'use' certainly includes...'bartering' and that 'use' encompasses 'use as an item of barter.'"
This issue is not a new one. In the past, the Third, Fourth and Ninth Circuits have held that trading drugs for firearms consitutes "use." But the Eleventh, D.C., Sixth, and Seventh Circuits have concluded that a defendant does not "use" a firearm when he receives it in exchange for drugs. And Mark Liberman has posted (see here) about an almost identical case that has already reached the Supreme Court (Mark's post is must reading about the way Justice Scalia reasons). There must be more to this than the above summary suggests and it will be interesting to see what the Supreme Court makes of it all this time.
One possible consideration is that people conventionally think of "using" something in relation to that thing's known and customary purpose. Guns are used to shoot things, animals, or people but not, for example, as hammers to nail something down. Another possible consideration is that the use of a gun in this case had little or no bearing on the way guns are usually thought of in violent, illegal acts. People also conventionally think of the expression, "in relation to," as being directly related to the event under discussion. In this case, the gun was directly related to the trade rather than to the drug crime. It will also be interesting to see what the Court does with "possession" and "carried." Watson clearly "possessed" the gun briefly before he was arrested and, I suppose, may have "carried" it for a moment or two, but both verbs have little to do with the sale of the drugs. The Court will have to consider what both verbs have to do with "the furtherance of the crime."
I hope it's clear that I'm trying not to take sides here. Drug dealing is a bad thing. As a convicted felon, Watson was not permitted to possess a gun, even for a few moments. I'm more interested in what the Supreme Court will do with this language. It's fascinating how often law comes up with linguistic problems like these, ones that occupy linguists daily. Language is clearly an integral part of law.Posted by Roger Shuy at February 28, 2007 12:07 PM