I Have Furry Autonomy!

Battery: it's not just what I do when I'm batting around my mousy toy with my paws.  

At the outset, we need to make a few distinctions.  First, you need to be aware of the difference between a crime and a tort.  A crime is an act that is punishable by the state, for which you can be arrested and prosecuted, (and convicted if found guilty).  A tort gives rise to a civil action between private people, for which (if found liable) you could be ordered to pay money.  (It is also, I am told, a pastry, but unless it has chicken in it, I am uninterested).  

Second, a brief note on common law v. statute.  A statute is a codified law that is passed by the government, and would look something like "It shall be a crime that any human shall cause any part of a feline to become wet or soapy."  Common law, however, is precedent created by previous court cases that creates a rule that following courts must follow in the absence of a statute.  For example, "In the case of Rory v. Human Male we ruled that Human Female wrongfully bathed Rory, and therefore in the present case of Merlin v. Human Female we must rule that Merlin was also wrongfully bathed."  A statute trumps common law, so once the statute is enacted, the court in Rory v. Human Male will cite to the statute, not to the Merlin case.  Crimes are nowadays all set forth in statutes, whereas torts tend to be based in common law.

Alright, so let's talk battery.  Battery is both a crime and a tort, meaning that if you were to commit a battery, you could be prosecuted in one action by the state, and also sued by the victim in another action.  I'm going to focus on the tort of battery for our purposes, for two reasons.  First, the crime of battery, while generally the same, varies from state to state depending on each individual set of statutes, and second, the crime of battery is generally based on the tort definition.  In order to speak generally, and not write fifty-one different posts here, it makes more sense to stick to torts for now.  (Bonus points and a reference in my next post to whoever knows why I'd have to write fifty-one and not fifty posts!)

Essentially, a tortious battery is an intentional, harmful or offensive contact.  You already knew this.  If you came to my apartment and I swished up to you and smacked you across the face with my claws out, you'd have understood me to have battered you.  (The more interesting analysis in that situation would be what unspeakable thing you'd have done to instigate such an out of character attack on my part, but I'll leave your personal failings for another time.)

Let's take these elements one at a time.  (With gratitude here to Joseph Glannon's The Law of Torts: Second Edition, Aspen Law & Business, 2000, which I highly recommend to any law student or student of law, pages 4-8).    

Intent

In order for my scratching you, (seriously, what's your problem?), to be considered a battery, I have to have intended to do so.  So, if I were say, scaling the window screens, and fell, claws outstretched onto your back, I may have hurt you and caused you injury, but I did not batter you, because I did not mean to contact you in any way.  

What then, if I mean to scratch Human Male, but he ducks and I scratch Human Female by accident?  Have I committed a battery? Yes, by virtue of something called "transferred intent."  I didn't mean to scratch Human Female, but I did intend to scratch Human Male. I have not committed a battery against Human Male, however, since I never actually contacted him.  I have committed a battery against Human Female, even though I never meant to contact her.  My intent against Human Male is transferred to my contact with Human Female.

There's a fine distinction to be made regarding intent here.  Let's say I purposefully swat and scratch the vet.  I'm liable to her for the scratch.  But let's say, I purposefully swat and scratch the vet, only intending to cause the scratch, but in addition to receiving the scratch, she is also so startled that she falls backwards, steps on a dog's tail, who turns and bites her.  I'm also responsible for the dog bite, as a proximate consequence of my intent to scratch her.  I certainly didn't act intending to cause her to be bitten, but I did intent to scratch her and therefore am responsible to her for both injuries.  

Harmful or Offensive

There are two types of battery: those caused by a harmful contact, and those caused by an offensive contact.  Think of it as the difference between your little brother throwing a toy at your head, or poking you incessantly in the back seat of a long car ride.  (I come from a litter of about six black and white kittens.  I know from sibling drama).   

Harmful contact involves "any physical impairment" (according to the Restatement (Second) of Torts), whereas offensive contact is based on the "reasonable person standard", i.e. how would a reasonable person react to being touched? 

Consider, if you will for a moment, my fur.  It is as glossy as a dream, as soft as a baby cloud, as elegant as a Paris runway.  A reasonable person would consider it a great honor to be rubbed up against by me.  What then, of an allergic guest? If the majority of guests to my home are happy when I brush up against them, have I committed a battery against the allergic guest, if I do not know he does not want me to touch him?  I have not, because my reasonable social knowledge tells me that it is an acceptable act to rub up against people.  However, if the allergic guest tells me when he enters "I am allergic, I do not want you to touch me" and I then do it anyway, I have now committed a battery.  The issue is not whether or not it's reasonable for the guest to not want me to touch him (seriously unreasonable if you ask me), but whether or not it's reasonable for me to expect that it's ok to touch him.  

Contact

Scratching or rubbing against are obvious forms of contact, but, this being the law, we can complicate this issue further.  I do not actually have to use any part of my body to commit a battery.  For example, if I leave my jingly ball on the stairs, purposefully knowing that Human Female walks around without her glasses and I intend her to trip on it, I have committed a battery, even if I am far away, crouched under the furniture, eagerly watching with my yellow eyes.  Or, let's say I know our allergic guest is coming to visit and I purposefully leave a giant fur ball on the chair where I know he will sit, intending to cause an allergic reaction.  I have also committed a battery.  

I can also commit a battery without causing any direct contact with the other person.  Consider the case of Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, (TX 1967).  The Fisher case was decided by the Supreme Court of Texas in 1967, and arose when "Plaintiff, a mathematician employed by NASA, was attending a professional conference on telemetry equipment at defendant's hotel."  Id.  While standing in line at the buffet, an employee of the hotel snatched the plate out of Plaintiff's hands shouting that a "Negro could not be served in the club."  Id.  The Texas court held that the employee had committed a battery against the mathematician even though he never physically contacted his body because in snatching the plate he had caused "offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person."  Id.  The court further held that "Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting."  Id.  (As a side note, I am torn as to the court's finding it necessary to state that the plaintiff was a NASA mathematician and the exact subject of the conference, as if it were highlighting that the hotel employee's actions were egregious because the Plaintiff was a particularly prized member of society, as opposed to just any black person in the buffet line, however, I do like to fantasize that some discovery of the Plaintiff served to save the life of that employee, forty years down the line and he was forced to owe a debt of gratitude to this man he had treated so inhumanely.)  

Consent

Lack of consent is implied in the definition of battery, although it may not be specifically stated.  If for some weird reason you want me to scratch you, and you ask me to do it, I have not committed a battery if I do so, even if I make you bleed.  Similarly, if Human Male and I are roughhousing and I bite him, I haven't committed a battery because he consented to being attacked by me as part of our play.  This is why football players aren't constantly suing each other for tackling each other.  The consent, however, can only be construed to encompass the reasonable activities involved in the game, so, if a football player were to pull out a gun and shoot the player with the ball to bring him down, that would be a battery (and also a really strange game).

Consent (informed consent at that) is commonly discussed in the context of a battery arising out of a medical procedure.  That is why you have to sign a stack of papers every time you go to the doctor.  I certainly did not consent to being neutered, and therefore was battered by the vet.  My autonomy! It may be furry, but it was still violated!

A prime example of this kind of medical battery is Mohr v. Williams, a Minnesota Supreme Court case decided in 1905.  95 Minn. 261, 104 N.W. 12.  The Plaintiff in Mohr underwent a surgery on her right ear.  While she was anesthetized, the surgeon found a problem with her left ear, and, without her consent, also operated on it.  Id.  The court held that the surgeon had committed a battery against the patient because, even though she had consented to surgery, her consent was limited to her right ear, and not her left ear.  Id.  For purposes of battery analysis, it is irrelevant that the surgeon meant her no harm, and in fact, meant to help her by curing her left ear, because the issue is that she did not consent to the procedure.  Id.  There was no emergency situation that would have permitted the surgeon to act without consent, (i.e. if you are brought into the ER unconscious, the doctors do not need your consent to save your life).  

And that, dear readers, is the basic elements of battery.  Join me next time for battery's sibling, assault!

Respectfully submitted, 

Rory, Esq.

From My White, Furry Paws.

Oh, hello there. Did you miss me?

Last you heard from me, I was a 10 month old kitten with a legal education and a dream. I now stand before you, bigger (15 pounds of pure fur, muscle and legal know-how¹), wiser, and more determined than ever to break down legal misconceptions. So, without any unnecessary formality (I wear a tuxedo every day, as it is), shall we begin?

Ushering in a new series I call “Know your Bill of Rights” let's talk about the Second Amendment. I've been watching (sleeping) while Human Male plays an alarming amount of Grand Theft Auto V², and I honestly can't get the sound of gun shots out of my head. If only I had thumbs!

Let's start with a little game. Without cheating or reading ahead, please type or write out, from memory, what you think to be the text of the Second Amendment. Take your time; I've got some stray carpet caught between my toes to clean out³.

All set?

If what you wrote is anything like “The People shall have the right to bear arms” you lose! You lose like the Humans lose whenever I try to teach them a game. Fetch does not involve me bringing the toy back, guys. Seriously⁴.

But back to the matter at hand. Don't feel bad if that's what you put down, because that's a fair paraphrasing of our modern, colloquial understanding of the right.

Here's what it actually says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The object of that sentence being... Militia? The government shall not infringe a militia?

Interestingly, there isn't a whole lot of Supreme Court case law on the Second Amendment. In 2008, however, the Supreme Court handed down its decision in District of Columbia v. Heller, which you may remember being a Big Deal⁵. 554 U.S. 570 (2008). And it was, because Heller is really the only Supreme Court case that analyzes what the Second Amendment actually says. The case arose out of a D.C. Law that prohibited the registration of handguns as well as prohibited owning an unregistered handgun. If you did have a handgun in your home, it had to be either disassembled or equipped with a trigger lock at all times, so that it was rendered inoperable. See id.

Do you have flashbacks to high school teachers forcing you to diagram sentence structure⁶? If so, you may want to skip the rest of this post. Because Justice Antonin Scalia, for about the first 50 pages of his opinion, proceeds to analyze the grammatical structure of the Second Amendment⁷. No, that's not an exaggeration. Your Rory does not exaggerate⁸. Justice Scalia even references an Amicus brief filed by a bunch of linguists.

So, what does Justice Nino conclude? Essentially, he starts by breaking down the Amendment into its “prefatory” and “operative” clauses. As he points out, this particular sentence structure is pretty rare in the Constitution.

If you're at all interested in grammar, Constitutional law, or Justice Scalia, you should read the opinion. I really can't do it justice by summary, but to provide you with a few key snippets for color.

"Before addressing the verbs “keep” and “bear,” we inter­pret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (Similar)." Id Slip Opinion at 12.

And:

"Logic demands that there be a link between the stated purpose and the command. The Second Amendment
would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of
interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpreta­tion and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).^9" Id. Slip Opinion at 4.

As Justice Scalia frames the issue, the question is whether or not the Second Amendment guarantees a right to the people (i.e. individuals), or to a Militia (i.e. an organization). Justice Scalia recognizes that the drafters wanted to ensure that the states could check the power of the federal government by raising and maintaining their own militias. He is not convinced, however, that this is the sole right codified in the Second Amendment.

"It is therefore entirely sensible that the Second Amend­ment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the mili­tia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codi­fied in a written Constitution. JUSTICE BREYER’s asser­tion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that selfdefense had little to do with the right’s codification; it was the central component of the right itself."  Id. Slip Opinion at 26.

If you think you have found a hole in this logic, have no fear, Justice Scalia can close that right up for you. If hunting and self-defense are equally important rights contained within the Second Amendment, why aren't they also stated? Because, he says, those rights were so ingrained in colonial culture that no one thought they had to say them¹⁰.

What then, to make of the fact that one (or even a militia) of people with hand guns couldn't possibly stand their own against the might and power of the U.S. Military? Well that's just simply not the point.

"Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.^11" Id. Slip Opinion at 55-56.

So where does Heller leave us? The D.C. Law was deemed unconstitutional. Justice Scalia recognized that state laws creating restrictions on time, place, and type of weapons were perfectly fine, but that the Second Amendment prohibited the kind of out-and-out prohibition on handguns that was the subject of the case. Arguably, though, the first real Supreme Court analysis of the Second Amendment created more questions than answers. Like most issues of Constitutional jurisprudence, however, the law will likely follow political and social shifts, rather than the reverse.

Respectfully submitted,

Rory, Esq¹².

1Have no fear, the vet says I am not overweight.

2Let you think he spent a whole day violently massacring crowds, let me assure you that what alarms me most is the amount of time his character spent closing pop-up windows, doing yoga, and sitting on couches.

3No, I was not scratching the carpet. I am a Good Cat.

4Oh, and can you get all of the toys I've batted under the oven? Thanks.

5I wanted to call it a “Big F'ing Deal” because I am an adult now and I use adult language, but I am far to eloquent and cultured to resort to crass sailor-speak.

6Human Female, a college double-language major, frets about this in her sleep. I walk on her face to shut her up.

7Not even kidding, his historical analysis doesn't really make it past the 1930s. I think this is because he ran out of time.

8Except for when it comes to how hungry I am. Because if I don't make the Humans think I'm starving, who knows how long it would take them to feed me.

9No doubt the man is a genius. The question is whether or not he is too smart for his own good, or for our good.

10Doesn't this kind of logic fly in the face of a 64 page grammatical, textual analysis? Are you a Supreme Court Justice? I thought not.

11Did you think Constitutional analysis was supposed to have some bearing on how laws impact our daily lives? You haven't been here long, have you?

12If you're wondering about the footnotes, I'm going through my David Foster Wallace phase, being the young, educated, adult that I am.