by: Peter J. Gallagher (@pjsgallagher)
The two or three of you Those of you who regularly read this blog or are familiar with some of the posts and articles I have written know that I am a fan of Justice Scalia. Not necessarily his judicial philosophy, but his written opinions – both for the court and in dissent – which are almost always entertaining and compelling even if you disagree with his conclusions. This morning, the Supreme Court released its opinion in Whitfield v. United States, where Justice Scalia, writing for a unanimous court demonstrated again why he is one of the Supreme Court’s most engaging authors.
Whitfield was a tragic case that reads like it was ripped from a law school exam question. Whitfield was fleeing police after a botched robbery when he entered Mary Parnell’s home through an unlocked door. “Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . . ). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.”
Whitfield was found guilty of a number of federal offenses, including one that makes it a crime for a suspect who is “avoiding or attempting to avoid apprehension” to “force any person to accompany him without the consent of such person.” Whitfield appealed his conviction, arguing that this statute requires “substantial” movement and his movement with Parnell did not qualify. The Fourth Circuit disagreed and Whitfield appealed to the Supreme Court. In a unanimous opinion written by Justice Scalia, the Supreme Court affirmed the Fourth Circuit’s decision and upheld Whitfield’s conviction.
Justice Scalia began his opinion for the Court by recounting the history of the “forced-accompaniment” statute, noting that it was adopted in 1934 “after an outbreak of bank robberies committed by John Dillinger and others.” He then observed that the word “accompany” means the same thing today that it did in 1934, and that it does not “connote movement over a substantial distance” as Whitfield had argued. Justice Scalia held that it “was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance,” before offering the following examples of accompaniment: “from one area within a bank to the vault” (in support of which he cited a 1928 article about a bank robbery written in the DuPage County Register); “to the altar at a wedding” (in support of which he cited the 1930 Salmons-Peters wedding announcement in the New York Times); and “up the stairway’” (in support of which he cited a Washington Post article from 1927). Justice Scalia then noted that “English Literature” was “replete” with additional examples supporting the Court’s conclusion, citing “David Copperfield” and “Pride and Prejudice” in support of this conclusion.
With these historical examples for support, the Supreme Court held that “accompany” does not require movement over a substantial distance, but instead “constitute[s] movement that would normally be described as from one place to another, even if only from one spot within a room or outdoors to another one.” Using this definition, Whitfield’s actions with Parnell “surely sufficed” under the statute and his conviction was upheld.
While the holding in Whitfield was straightforward and hardly earth shattering, I would venture that it is the only judicial opinion to reference John Dillinger, the Oxford English Dictionary, Charles Dickens, and Jane Austen (not to mention the DuPage County Register) in the same paragraph. For that, it is at least noteworthy.