Depends on the circumstances. If the suspect is unarmed and not posing an immediate danger to anyone, as in this case, yes.
And because the courts have ruled that the "discharge" of a firearm does not constitute a separate crime or even the element of a crime, merely a sentencing guideline.
The language of the statute is clear, your verbal gymanstics not withstanding, and both a Federal Judge and appeals court agree with me, not you.
Glad to see that you still vouch for the integrity of the smuggler. His word was the only "evidence" that he was "unarmed". He led the Border Patrol on a high speed chase. He came straight at Compean when the agent repeatedly ordered him to stop. If he had simply done what Compean ordered him to do none of this would have ever happened.
Aldrete-Davila has proven once and for all that he has zero credibility. He wasted no time in returning to his drug smuggling activities right after he arranging that immunity agreement with Sutton. He is now serving time in Federal prison after pleading guilty to assisting others transport drug shipments for the cartels.
Apparently he even had the audacity to use the passes that that allowed him unaccompanied access across the border for medical treatments to smuggle additional drugs into the U.S..
That' s bold.
Even the prosecution was forced to admit to the Circuit court that Aldrete-Davila committed perjury in court ( "told some lies on the stand", said Stelmach). The problem is that the prosecutors were also obligated to make that candid admission directly to the jurors during the trial. Just one of those "minor " details that could have affected the jurors' decisions in the deliberating room. One more reason the the verdicts should have been overturned.
The language of the statute is clear, your verbal gymanstics not withstanding, and both a Federal Judge and appeals court agree with me, not you.
But which statute is that...?? The version actually used by Sutton in the trial does not actually appear in the law books. The one written by Congress wasn't the one he used.
So it looks like Sutton was the one engaging is "verbal gymnastics".
Prosecutors are supposed to use the 924(c) statute as it written by Congress. That 's what the rulings in McGilberry, Barton, and Harris were all about.
And, btw, the legislators in Congress agree with me on this issue.