Inflicting context

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As is often the case, the opinion in a recently-decided legal case (Sixth Circuit Court of Appeals in U.S. v. Phillip Abawa) turned on the meaning of a word:

“Inflict” is a narrower term than “cause.” Here, while in federal custody, Phillip Zabawa assaulted a federal law enforcement officer. The officer responded by headbutting Zabawa, which left the officer with a cut over his eye. A federal grand jury later indicted Zabawa for assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b). Zabawa was convicted of both offenses. But § 111(b) specifies that the defendant must “inflict[]” the predicate injury to the officer, rather than just proximately cause it; and here, the officer himself admitted that his injury might have resulted from his application of force (i.e., the headbutt) to Zabawa, rather than from any force Zabawa applied to him. The district court found this distinction irrelevant, construing “inflict” to mean “cause.” We respectfully disagree, and reverse Zabawa’s conviction under § 111(b).

Reader S.L. pointed to this opinion's "selective use of dictionary definitions, as well as literary and other references", and wondered "if anyone at Language Log might have any observations".

S.L. asked for our observations, but what he's going to get, in fact, is my opinion, in the first sense of that word given by the American Heritage Dictionary: "A belief or conclusion held with confidence but not substantiated by positive knowledge or proof". It may be confusing to call my "belief or conclusion" an opinion, in a context where S.L. is asking about a judicial opinion, which the AHD defines as "A formal statement by a court or other adjudicative body of the legal reasons and principles for the conclusions of the court". But that's what language is like: words are slippery things, and polysemy is rampant.

In any case, my opinion agrees with the court's opinion in this case: if a federal officer cuts his forehead as a result of head-butting someone who is resisting the performance of the officer's official duties, it is neither accurate nor just to describe the resister as "inflict[ing] bodily injury" on the officer who head-butted him.

The court's opinion notes that dictionary definitions of inflict don't settle the question:

One dictionary defines “inflict” to mean “to cause (something unpleasant) to be endured” or, alternatively, “to give by or as if by striking.” Merriam-Webster’s Collegiate Dictionary 599 (10th ed. 1994). The former definition incorporates the word “cause” and thus arguably supports the government’s interpretation here; the latter definition is precisely the one that Zabawa advocates.

The court suggests a sort of statistical resolution, in favor of what inflict "normally" and "usually" means, "almost anywhere one looks":

[O]n balance the ordinary usage of “inflict” favors Zabawa’s interpretation.  “Inflict” is a more specialized term than “cause.”  Inflict normally refers to direct physical causation of physical harm:  “inflicted heavy losses on the enemy; a storm that inflicted widespread damage.”  American Heritage Dictionary 926 (3d ed. 1992).  (When one departs from this sense of inflict—“the speaker  inflicted a long and boring speech upon the audience”—the irony is usually intended.)  This meaning holds almost anywhere one looks:  the thermal and barometric conditions giving rise to a storm, for example, do not inflict widespread damage; the storm does.  Othello dies from a wound that he inflicts upon himself, even though Iago proximately caused him to do it.  Field Marshal Montgomery blundered by ordering his paratroopers to take “a bridge too far” at Arnem [sic], but he did not inflict the heavy losses that followed; the Germans did.

Iago is perhaps an example  too far, at least in the sense that it's easy to find texts in which he is the unironic subject of inflict, without any "direct physical causation of physical harm":

Iago is not abnormally huge, strong or brute but it is his immense cunning that he uses as monstrous poison to inflict damage to others.
The power of Iago is exercised when he prepares and then implements an evil plan designed to inflict man with the most extreme amounts of anguish possible.
Therefore, while this does not excuse the evils Iago comes to inflict upon others, it cannot be said that he is 'without any motive.
Despite knowing what is morally good, Iago consciously makes the decision to inflict harm on those around him.
By provoking Othello's jealousy toward Cassio, Iago effectively kills two birds with one stone, inflicting harm on both his superior and the man whom his superior has chosen to take a position that Iago believes to be rightfully his.

I haven't found any texts describing Montgomery as "inflicting" casualties on his own forces at Arnhem, but on the abstract point involved, we find e.g. this from the U.S. Army Counterinsurgency Handbook, 2007:

Leaders prepare to indirectly inflict suffering on their Soldiers and Marines by sending them into harm's way to accomplish the mission.

It may be true that even metaphorical uses of inflict tend to emphasize direct physical agency, clustering overall towards the "give by striking" end of the spectrum rather than towards the "cause (something unpleasant) to be endured" end. But in my opinion, this doesn't matter. Words often have many meanings, and as a result, usage statistics define semantic norms only when context is taken appropriately into account.

Thus in a random sample of 100 instances of the word opinion in the COCA corpus (out of the 29,026 total occurrences), just 8 referred to judicial opinions, while 92 fell, more or less, under the scope of the old saying that "opinions are like assholes: everybody has one". It would be a mistake to conclude that judicial opinions should be characterized normatively as examples of the AHD's first definition, "A belief or conclusion held with confidence but not substantiated by positive knowledge or proof".

Anyhow, that's my opinion.

For background, here's the text of 18 U.S.C. § 111:

(a) In General. – Whoever –

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced Penalty. – Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.



12 Comments

  1. Jeff Carney said,

    June 8, 2013 @ 9:07 am

    Some readers may find this fact (quoted from the opinion) useful: The indictment alleged only one injury: the cut above Murphy’s eye.

  2. Rubrick said,

    June 8, 2013 @ 9:49 am

    Our judiciary is in a truly woeful state if they can't at least afford to replace their copy of the 1994 M-W Collegiate 10th edition with the 2003 11th. Sheesh.

  3. D.O. said,

    June 8, 2013 @ 10:38 am

    @Rubrick. I think, the usual judicial source is a dictionary from around the time the statute was passed, not a modern one.

  4. Anthony said,

    June 8, 2013 @ 11:41 am

    Alternately, I'd look to the legal theory of causation, whether inflicted or merely caused. Had Zabawa's action knocked loose a light fixture which then fell on the officer, there would be a case that Zabawa "caused" the officer's injury, because the light fixture didn't *choose* to fall down. However, the officer, being a volitional human being, had a variety of choices in how to respond to Zabawa's assault; therefore, the injury caused by the voluntary action of the officer would not be "caused" by Zabawa, though under some legal circumstances, Zabawa could still be liable for the injury. The court does address that issue by noting that it's unclear whether the injury is caused/influcted by Zabawa's actions, or the response by the officer.

  5. Anthony said,

    June 8, 2013 @ 12:02 pm

    Reading the opinion, it really is about theories of causation, where "cause" means "proximate[ly] cause" – the person who starts the fight has caused all the injuries, even those which he sustains as a result of the actions of his opponent, while "inflict" is interpreted by the appeals court to mean "physically cause" – where there are no intervening actions between the cause and the effect. The opinion states "in choosing the word “inflict” rather than “cause,” Congress meant to tighten the causal chain between action and injury before sending a man to prison for 20 years."

    Thus the linguistic argument over the meaning of "inflict" versus "cause" is about different sorts of causation, which in law has terms whose meaning may not match the colloquial understanding of the same terms. If you're not a lawyer, what does "proximate cause" mean to you?

    [(myl) The case raises interesting issues in the philosophy of causation, and the opinion discusses many of them. I was trying instead to engage the question of how to determine what words mean. Certainly it's relevant here, as the opinion states, that the law uses "inflicts" rather than "causes". A better analysis than mine would show how to bring usage data to bear on that choice. The only point I managed to make was that the brute frequency of the different senses of a given word is not enough — so that it's just as well that the ruling's "opinion" (in sense 1) about the normal usage of inflict was unsupported.]

  6. Rod Johnson said,

    June 8, 2013 @ 1:31 pm

    Is is Zabawa or Abawa?

  7. Dan Lufkin said,

    June 8, 2013 @ 1:48 pm

    We thank Mark Twain for: "Thrusting my nose firmly between his teeth, I threw him heavily to the ground on top of me."

  8. J.W. Brewer said,

    June 8, 2013 @ 2:27 pm

    Lawyers and judges spend a lot more time than most people thinking/arguing about causation and in particular thinking/arguing about how attenuated or uncertain a multi-step chain of causation has to be before the person at one end of it cannot be held legally responsible for the unhappy consequence at the other end (and/or the relevance of the fact that that unhappy consequence may have had multiple causes and perhaps have been somewhat overdetermined). So the intuition that "inflict" is narrower than "cause" is particularly strong if you've spent a lot of time exposed to the more capacious readings of the verb "cause" that are reasonably common in legal circles.

  9. Eorrfu said,

    June 9, 2013 @ 12:11 am

    I am reminded of my torts professor who proclaimed "we could spend the entire semester discussing causation and you would have no better understanding then than you do now, but it will be on the final".

  10. Sid Smith said,

    June 9, 2013 @ 1:49 am

    I'm not sure about your rejection of the court's view on Iago and Montgomery. In the examples you cite, Iago is not accused of inflicting Othello's death blow but of inflicting pain, damage, harm. Likewise the army leaders are only said to 'inflict indirect suffering'.

  11. GeorgeW said,

    June 9, 2013 @ 4:48 am

    I would suggest that 'inflict' entails intentionality and negative consequences where 'cause' may be unintentional and have positive results.

  12. Daniel Barkalow said,

    June 11, 2013 @ 2:23 pm

    I would lean more on Grice here than Webster. The law is framed to make a distinction between (a) and (b) with respect to penalty, and the distinction is given on both sides: "simple assault" for (a) and a description which essentially matches aggravated assault for (b). If the law were trying to classify things differently, it would presumably spell out the difference and wouldn't use the defined term "simple assault" as one of the alternatives. This puts "inflict" from 111(b) parallel to "intentionally cause" for aggravated assault,. Since that is an available meaning for "inflict", we have the option that the law means what we would expect it to mean, and the law doesn't say anything to counter this expectation. Since the legal code as a whole leads us to have a certain expectation about the relevance of intentionality, and the section doesn't call attention to a difference from this expectation, we should take the meaning of the section not to have such a difference.

    (For that matter, the extensive case law on assault should be expected to apply to section 111, even where there is nothing in the wording of section 111 to introduce a distinction that is otherwise standard in distinguishing simple and aggravated assault, which means that cases about section 111 should sometimes differ from a narrow reading of section 111 in isolation in each direction.)

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