Tuesday, January 14, 2020

Altayar v. Barr (9th Cir. - Jan. 14, 2020)

I wonder if this would play out any differently today.

Bystander is at work talking with a female friend outside the shop at which he works.  Grabber walks by and nonconsensually touches the female friend on the buttocks.  Bystander is (not surprisingly) offended, calls Grabber a name, and then Grabber punches bystander in the face.

Bystander is armed (presumably to protect the store), and after being punched, pulls out a weapon.  Grabber then runs, and Bystander chases Grabber to a nearby gas station.  Grabber's brother and a friend see all of this, and go to confront Bystander; Bystander waves them away with his weapon.

A security guard eventually shows up and puts Grabber in handcuffs, mistakenly believing that Grabber has robbed the store (rather than sexually assaulting the woman).  Bystander puts his gun away and, frustrated, kicks Grabber in the head.  The gun, parenthetically, is never fired.

You can see why all this transpires the way it did.  Surely people could have acted differently.

What's the proper result for all of this?

Presumably Grabber could be prosecuted for sexual assault.  Grabber committed the offense, after all, though he's also already been chased with a gun and kicked in the head.

Presumably Bystander could be prosecuted for assault, and perhaps a weapons violation.  Bystander committed that offense, after all, and surely shouldn't have kicked Grabber after there was no threat.  But his friend had been sexually assaulted in front of him, and he had also been personally punched in the face.  You can perhaps see why he drew the weapon to prevent future assaults (and to detain the perpetrator of the sexual assault) and to prevent escalation by Grabber and/or his brother.

So if you're the District Attorney, who gets charged?  If you're the judge, assuming all of the above is true, what's the disposition?

All this, of course, is not a hypothetical.  It's today's opinion.  In the real world, as far as one can tell, Grabber doesn't get charged at all.  Bystander does.  With a Class 3 felony (in Arizona).  For which the sentencing range is between 2 to 9 years in prison, with a presumptive sentence of three and a half years.

The trial judge nonetheless sentences him to 48 hours in jail, and 5 years of probation.

The #metoo movement didn't start in earnest until two or three years after these 2014 events.  Had it gained traction earlier, I wonder whether the district attorney (or the public) would have viewed these events a little differently.  I think there might be a bit more sympathy now for someone who sees a friend become a victim of sexual assault and -- perhaps rashly, perhaps not -- pulls out a weapon in response.

That doesn't excuse kicking the guy when he's restrained, obviously.  But there might be a little more understanding for why things like that happen.

The trial judge's 48-hour sentence was likely founded upon similar concepts.  So maybe 2014 was not all that radically different than 2020 in that regard.

But still.  I wonder if the preliminaries might have played out differently.

Nonetheless, all's well that ends well, right?  No one seriously injured, at least.

Except for one thing.

You may have forgotten that we're talking about a federal case here.  One against William Barr.  You don't get that for a simple state law assault conviction.

One thing I (deliberately) didn't mention at the outset is that Bystander is a refugee from Iraq.  Who was lawfully admitted, and is a permanent (and lawful) resident here.  But since he's now convicted of a felony, the United States wants to send him back.  To Iraq.

Bystander files a plethora of requests -- for asylum, for protection under the Convention Against Torture, etc. -- because his life in Iraq would be, shall we say, less than enjoyable.  But the BIA says he categorically can't get any relief, and hence gets shipped off to Iraq, because he's committed an offense that involves moral turpitude.

And the panel today -- Judges Wallace, Bress, and Lasnik (sitting by designation) -- unanimously agrees.  Off to Iraq for you.  Maybe next time you'll think twice before running after a guy with a gun after he sexually assaults your friend in front of you and punches you in the face.