Court docket restricts definition of “violent crime” in federal penalty for gun possession
By James Romoser
on June 10, 2021
at 1:13 p.m.
A broken Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that recklessness crimes should not be considered “violent crimes” to trigger a major penalty increase.
Judge Elena Kagan announced the court’s verdict and issued a statement, which was followed by Judges Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Judge Clarence Thomas disagreed with Kagan’s opinion but agreed with the result. This means that five judges rejected the federal government’s broader interpretation of the term “violent crime” and gave the victory to a defendant who argued that the penalty increase did not apply to his behavior.
The Borden v. United States case concerned a provision of the ACCA imposing a minimum sentence of 15 years on anyone convicted of a felony in possession of a firearm if the person had three or more previous convictions for a “violent crime”. The term “violent crime” is defined in the relevant part as any crime that “includes as an element the use, attempt or threat of physical violence against the person of another”.
Charles Borden Jr. pleaded guilty to felony charges and the government moved for an increase in his sentence under the ACCA. Borden argued that the improvement did not apply because one of the three previous offenses the government relied on was a Tennessee law conviction of reckless aggravated assault. This crime, as the name suggests, can result from reckless behavior – a less culpable legal standard than willfully or knowingly causing injury. Borden argued that only willful or knowing behavior can meet the ACCA definition of “violent crime”. Mere ruthlessness, he said, was not appropriate.
The US 6th District Court of Appeals disagreed with Borden and ruled that a crime involving recklessness is a “violent crime” that will result in an increase in the sentence by ACCA. The Supreme Court overturned that decision on Thursday.
Kagan’s stand for a plurality with four justice centered on the phrase “against someone else’s person” in the ACCA definition. That language, she concluded, encompasses only deliberate or knowing crimes, not reckless ones.
“The expression ‘against another’, when modifying the ‘use of force’, requires that the perpetrator direct his action towards another person. Reckless behavior is not sought in the prescribed manner, ”Kagan wrote.
Thomas reluctantly agreed to the result. He agreed with Kagan that Borden’s conviction of reckless assault in Tennessee is not a crime that “includes as an element the use, attempt, or threat of physical violence against another person”. But his reasoning was different. Rather than relying on the phrase “against someone else’s person”, Thomas focused on the phrase “use of physical violence.” That phrase, Thomas said, is limited to willful acts aimed at causing harm.
Thomas went on to say that, in his view, a separate provision of the ACCA definition of “violent crime” should record Bordens conviction for reckless assault. This provision – the so-called residual clause of the definition – covers any crime that “involves conduct that presents a serious potential risk of bodily harm to another”. However, six years ago the Supreme Court ruled in the Johnson v US case that the residual clause is so vague that it is unconstitutional and therefore unenforceable. In his approval, Thomas asked the court to overturn Johnson.
Kavanaugh’s 38-page dissent (longer than Kagan’s pluralism and Thomas’ approval combined) accuses Kagan of reading the phrase “against someone else’s person” in order to limit the scope of the law. “The court’s decision overrides Congressional judgment on the danger posed by recidivists, illegally possessing firearms and threatening further violence,” wrote Kavanaugh.
Please check back soon for an in-depth analysis of the opinion.