Monday, October 27, 2014

Abbott v. Federal Bureau of Prisons (9th Cir. - Oct. 27, 2014)

We know it's "kidnap".  But is it "kidnaping" or "kidnapping"?

Today's opinion from Judge Gould uses the former term.  Half a dozen times, no less.  Which struck me when I was reading it.

I'm not a good speller.  At all.  But it looked weird to me.  Is that the right way to spell it?  Or is this one of those things where there are two acceptable versions?  Maybe one English, one American.

Fortunately, in the modern era, answers to questions like that are at the tips of our fingers.  So I looked it up.

Judge Gould is definitely in the minority when he uses the spelling "kidnaping".  Here's the relative frequency of both terms:

So while "kidnaping" made a definite run for it during the '30s and '40s, the game's pretty much over at this point.  "Kidnapping" wins.  (And, yes, I looked at British versus American usage as well.  Doesn't help solve the mystery.  Same basic discrepancy.)

So why does Judge Gould use the former rather than the later?  Just stuck in the old usage?

I think about just letting Eugene answer this question.  He loves this stuff.  But then I figure that maybe he has better things to do.  Bigger words to fry, perhaps.  So I embark upon the mission myself.

I thought I had a pretty good answer.  Still might.  The opinion is about whether a Montana conviction for unlawful restraint disqualifies the petitioner from getting into a favorable federal drug program because it's equivalent to "kidnap[p?]ing" under 28 C.F.R. § 550.55(b)(4).  So I went back to the underlying federal regulation.  How does it spell the relevant term?

Yep.  "Kidnaping".  That's how the Bureau of Prisons spelled the thing when it passed the regulation.  Way back in . . . 2009.

Mind you, even the BOP couldn't keep it entirely straight.  The proposed regulation used "kidnaping" five times, including in the relevant text.  But the BOP's summary of the proposed regulation used "kidnapping".  I can't come up with a coherent reason why.  But there you have it.

So my theory was that Judge Gould's opinion simply uses the same spelling that's employed by the regulation at issue.  Makes sense.  Even if that spelling's extraordinarily old fashioned and not at all what we're used to nowadays.

Except then I get to the penultimate paragraph of Judge Gould's opinion.  In which he uses "kidnapping".

Damn it!  Chucking my entire theory out the window.

Wait.  Maybe I can salvage the thing.

Judge Gould's last use of the term says:  "Further, unlawful restraint is a lesser included offense of kidnapping under Montana law. See State v. Brummer, 287 Mont. 168, 177 (1998)."  That crafty Judge Gould.  I get it now.

He's using "kidnaping" whenever he's referring to 28 C.F.R. § 550.55(b)(4).  Or any action (like this one) arising thereunder.  But when he's referring to Montana law -- as in his next-to-last paragraph -- he uses "kidnapping" since that's the way Montana uses it.  Judge Gould doesn't put quotation marks around the relevant words or anything like that, but he's just using whatever spelling the underlying source employs.

That's a perfectly consistent explanation.  Maybe not the best way to write an opinion, but I get it.

Except then I look up the case he's cites for Montana's "kidnapping" offense:  State v. Brummer, 287 Mont. 168, 177 (1998).  Which consistently uses . . . "kidnaping".

At this point, I give up.

Judge Gould uses two spellings.  Typically using a decidedly minority spelling but then ending with the dominant spelling.  Why?

Because he feels like it.  No other reason I can fathom.