“Absence of Malice” wasn’t just a great legal movie. It’s a viable defense to federal arson.
I love watching classic movies (and making my kids watch them.) I especially enjoy old legal movies. But for some reason, I’d never seen the Paul Newman – Sally Fields hit from 1981.
Then it came up in conversation with a prosecutor a couple years ago, who described the scene-stealing role of Wilford Brimley.
I was already a fan of Brimley, and loved his portrayal of DeVasher in The Firm (another great classic legal movie). And I laugh at the memes about ‘diabeetus’ and oatmeal.
But his turn as the Assistant Attorney General leading an inquiry into the prosecution of Newman’s character was unforgettable. I cannot do his invocation of the power of ‘subpeenies’ justice, so you should just watch it yourself.
I immediately thought of that movie (and that scene) when I read about the case of a soccer fan who threw flares in a stadium, resulting in superficial cosmetic damage to concrete and aluminum and a minor burn injury to a child that required ice to treat.
Despite the mild effects of his actions, the man was charged in federal court with violating 18 U.S.C. § 844(i). That statute carries a minimum sentence of five years; seven if injury results (even if it only called for ice to treat).
The statue punishes “maliciously” damaging or destroying a property that affects interstate commerce by means of fire. But if a person did not do it maliciously, that absence of malice means they aren’t guilty.
In this case, the defendant moved at trial for judgment of acquittal under Rule 29. The court denied it and the jury convicted him. The defendant then renewed his motion. This time the court granted it.
A motion for a judgment of acquittal is essentially a claim that the evidence was insufficient to sustain a conviction (the jury’s verdict notwithstanding).
Yesterday, this district court found that the government did not prove the defendant acted with malice, which would have required his “intentional or deliberate disregard” of a risk. That is more than mere recklessness. It is more even than conscious disregard of a risk. Rather, it must be intentional or deliberate.
In this case, the court noted that soccer fans can be rowdy and it found the man’s conduct to be, in a word, ”Stupid.”
The court pointed to the statute’s original purpose to counter bombings and cited a letter from an ATF executive as support. (ATF has, after all, the best bomb investigators in the world.)
The court noted in a footnote that this is not yet blackletter law, but for now, the man stands acquitted.
You can read the opinion here.
Tip o’ the hat to Eugene Volokh who reported this case in The Volokh Conspiracy here.