Angry consumer is guilty of using a chemical weapon, holds the Second Circuit

United States v. Kimber, No. 13-3661-cr (2d Cir. Jan. 30, 2015).

Some unhappy consumers post scathing comments to Yelp. Others complain to the Better Business Bureau. Still others go to a lawyer. Not Martin Kimber: he decided to use poison. Irked at the service he had received at an Albany hospital, Kimber, a pharmacist, planted mercury in sensitive locations at the hospital on four separate occasions. He even put mercury in a container of chicken tenders in the cafeteria. Thankfully, nobody was hurt. 

Kimber was eventually found out, and the feds charged him with using a “chemical weapon.” The question before the Second Circuit is whether Kimber can properly be convicted of using a chemical weapon. 

This question turns on a Supreme Court opinion from last year, Bond v. United States. There, Carol Anne Bond, a microbiologist, had tried unsuccessfully to poison her husband’s paramour by spreading toxic chemicals on her car door, mailbox, and door knob. The defendant argued that Congress lacked the power to criminalize her conduct. The Court interpreted the federal chemical-weapons statute not to criminalize “local” assaults like Bond’s. 

But does the chemical-weapons statute criminalize what Kimber did here? The Second Circuit holds that it does. This was not a local attack. Kimber targeted a hospital with the only trauma center for 150 miles in all directions. Nor was this a simple common-law assault, as in Bond. Kimber placed mercury in highly trafficked public locations where it could get into the air and poison a lot of people. And while mercury is commercially available, a chemical need not be hard to obtain to serve as a chemical weapon. Kimber’s acts were terroristic—he did not commit a simple act of private revenge. His conviction is affirmed.