Wednesday, January 09, 2013

Castrijon v. Garcia (9th Cir. - Jan. 9, 2013)

It's an immigration case.  Sure, Judge Reinhardt's on the panel.  He's even writing the opinion.  So you have a keen sense from the get-go how the case is going to come out.

But the question presented is whether kidnapping is categorically a crime of moral turpitude.  Kidnapping.  Come on.  Even Judge Reinhardt has to answer that question in the affirmative, right?


Well then, certainly someone's going to dissent, right?  Judge Clifton?  Randy Smith?

Wrong again.

Which makes one -- or at least me -- say:  "Really?  Again:  Kidnapping?!  Not a crime of moral turpitude?  Seriously?" 

So I read the opinion.  At the outset, pretty skeptically.

But, that said, I'm on board for a lot of what Judge Reinhardt says.  Both in this opinion and in others he's authored.  What counts as "moral turpitude" is totally vague.  What counts as "categorically" an offense that involves such a quality is even more amorphous.  We're talking about social mores here -- things that are in a constant state of change -- and inherently vague ones at that.  So picking out some offenses amongst others and calling them "inherently' turpitudinous is really hard.  That's how I initially approach the subject, and I'm sure Judge Reinhardt agrees.

But dude.  We're talking about kidnapping here.  Not sodomy.  Not something that changes over time.  We are talking about a crime that we've always -- always -- taken extremely seriously, and that I'm confident will always be a serious crime.  Everywhere.

Still, we've got to remember that calling something a named offense isn't always accurate.  Sometimes what you think a particular crime entails is actually far different from the statutory elements.  So we have to look deeper.  Which Judge Reinardt does.

But this just heightens my initial impression.  Judge Reinhardt repeatedly notes that the statutory elements of simple kidnapping in California don't require that one "intend" to do harm to a victim, or intend to do bad things to them once you get them to where you're taking them.  Fair enough.  I get that.

The statute nonetheless requires that the defendant take the victim by force or by instilling fear.  So we are talking about forceful kidnappings.  Well, geeze.  Seems to me those are wrong.  Seriously wrong.  When you force someone to do something against their will, I have a keen sense that's included in the category of offenses which the oldsters called malum in se and what we might generally call intrinsically wrong.  Forcing someone to do something against their will:  You can't get much more wrong than that, right?  That's why we generally have big sentences for the underlying crimes.

Look, Judge Reinhardt is smart.  He nonetheless starts to sway me a bit.  He says -- correctly -- that these offense need to be really serious before they count as moral turpitude.  Seriously serious.  Does kidnapping really count?  As I'm reading the opinion, I still tend to think so.  But he compares it to murder.  To things that are really, really serious.  Which makes me think:  Well, okay, maybe.  "Simple" kidnapping may be bad, but I agree that one might view it as qualitatively different than those other offenses.  Murder's worse than taking someone against their will.  Though both are bad.

(Mind you, this argument only gets Judge Reinhardt so far.  Murder's worse than kidnapping, which argues in favor of Judge Reinhardt's holding.  But incest is a categorically turpitudinous crime -- presumably even consensual adult incest between 68 year old siblings who never met before they did the dirty deed -- and if you ask me whether kidnapping is "worse" than that, my answer's pretty clear.  So the examples go both ways on that issue.)

So we've got to figure out the dividing line.  One that separates the "bad" from the "really" bad.  Judge Reinhardt has one, and it's the crux of his argument.  He says that categorically turpitudinous offenses either involve vulnerable victims -- e.g., children -- or an intent to injure or an actual injury.  That's indeed what Ninth Circuit precedent says.  So Judge Reinhardt's best argument is that simple kidnapping doesn't always involve vulnerable victims (because even competent adults can be kidnapped), doesn't require an intent to injure (true), and doesn't necessarily involve injury either.  So there you go.  Doesn't fit the definition.

But hold on a second.  What about that last part?  Necessary injury.

What Judge Reinhardt says -- persuasively -- is that it still counts as kidnapping even if you don't (for example) cut the victim during a knife with the process.  So if only physical harm counts as an injury, Judge Reinhardt seems right.

But I'm not at all sure that's in fact accurate.  We routinely count emotional harm as an injury, and often seriously.  Take rape, for example.  Some rapes seriously injure the victim physically, to be sure.  But the biggest impact may be psychological.  How it makes the victim feel.  The helplessness.  The requirement that one do something without one's consent.  The violation of autonomy.  We think of those things as very serious consequences -- and (appropriately) very seriously punish such offenses -- and constantly call them "injuries".

Those same injuries inherently exist with kidnapping.  Helplessness.  Nonconsensual acts.  Violation of autonomy.  Every forceful kidnapping -- every single one that meets California's statutory requirements -- results in those harms to the victim.

This seems to me a big problem with the majority's analysis.  The dividing line between offenses is a vague one, to be sure.  But if you apply the line that precedent has drawn, and that Judge Reinhardt discusses at length, the "actual injury" portion seems pretty strongly to point in the direction of finding these offenses to be categorically qualify as crimes of moral turpitude.  It seems to me that Judge Reinhardt's analysis assumes sub silentio that we're only talking about purely physical, demonstrable harm.  But we're not.

One other thing as well.  Which, in a concrete way, somewhat highlights this point.

To support his position, Judge Reinhardt has to come up with actual ("non-hypothetical") kidnapping offenses in California that wouldn't count as moral turpitude.  He does.  His primary example is a protest case in 1972 in which black students at a college forcibly surrounded some school administrators and led them across the campus (against their will) to talk to the college president.  Judge Reinhardt notes that the California judiciary affirmed the defendants' conviction in that case, and accordingly argues that the statutory elements of the crime in California thereby include conduct that doesn't involve vulnerable victims or actual injury.

One could certainly take that view.  The school administrators in that case were indeed physically unharmed.  No one hit them or punched them or sliced them with a knife.

But Judge Reinhardt notes, in passing, that some students "pushed" the administrators, and also "made threats" to make them continue moving.  These acts are of no small importance, since remember that the statute categorically requires the use of force and/or threats of physical harm.

Which made me go back and look up the underlying case.  Which mentions that the "threats" to which Judge Reinhardt obliquely refers to entailed the students telling the administrators that "if the man comes in, we're going to do you" (i.e, if the police come in, we're going to kill you) and, during the forced march, telling the victims "move along whitey or we're going to stick you" (i.e., keep moving or we will stab you).  (That the victims took these threats seriously was no surprise, and in fact, during the forced trek, one black student in fact punched a white student in the jaw.)

Now, one could say -- as Judge Reinhardt does -- that since the students did not actually stab or kill the victims, there was no actual injury, and that the example establishes that simple kidnapping need not entail a "serious" crime.  But think about it another way.  From the perspective of the victim.  You're taken against your will by a crowd of students that's actively threatening to kill you.  You fear for your life.  Reasonably.

What about that as "injury"?  I wouldn't be surprised in the slightest if you had trauma.  PTSD.  Might not even be able to work as a teacher ever again.  And even if you "toughed it out," being subjected to such incredible stress and the underlying inherent violation of your autonomy is injury.  Always.  Every time.  A violation that I think does, in fact, count as a serious injury.

So I'm not sure I take away from Judge Reinhardt's examples what he wants me to take away.  (The same, by the way, goes for his other example, which involves a parent kidnapping his adult child who has gone to live with her boyfriend against his wishes.  Yeah, there's no intent to injure.  But from the perspective of the 18-year old victim, who had a right to live with -- and perhaps even marry -- her boyfriend if she wanted, and without her father's consent, there's definitely injury nonetheless.  Inherently.)

All of this is a very long way of saying that I wonder if the panel really gets this one right.  Judge Reinhardt recognizes at the end of his opinion that his result might be somewhat counterintuitive, and I give him props for that.  He's right.  He's also right that just because something might seem wrong at first glance doesn't mean that it is.  That's why we reason these things out.  That's why we think deeply.

But I've done so, I think.  And despite the fact that, at points, Judge Reinhardt's opinion had me persuaded (or nearly so), in the end, I think he might be wrong.  I agree the line's fuzzy.  Very much so.  But if the line is what it appears to be, then I think kidnapping might well fall on the other side of it.

Which is a different way of saying that sometimes one's initial impressions are wrong.  But sometime's they're actually right.

P.S. - Let me end with a simple point.  One that someone tracks the above analysis.  Everyone agrees that rape is a crime of moral turpitude.  What about sexual assault?  Someone grabbing someone's breasts or crotch over their clothes.  It can happen to adults, and both genders, so no vulnerable victim, and might also occur from a person who doesn't intend harm and not involve "physical" injury.  Does only rape counts as a turpitudinous offense, or does sexual assault count as well?  They seem darn similar to me, despite the fact that the latter may well involve less physical harm.  The offense is the assault on bodily integrity.  That's why it's malum in se.  Ditto, in my view, for kidnapping.