Divided High Court Sides With Defense on Repeat-Offender Law (3)

June 10, 2021, 2:12 PMUpdated: June 10, 2021, 7:55 PM

A divided U.S. Supreme Court curbed mandatory minimum sentences for federal gun offenders with prior convictions, over dissent by Justice Brett Kavanaugh that said the ruling ignored congressional efforts to tackle gun violence.

Offenses that can be committed with a reckless mental state don’t qualify as violent under the Armed Career Criminal Act, the high court said Thursday.

The act applies to gun offenders with three prior violent felonies. Thursday’s ruling limits the act’s scope to exclude reckless offenses from triggering its 15-year minimums.

The case marked the court’s latest foray into which crimes qualify as violent under the act, a subject that has perplexed the justices over the years.

Lower courts around the country had split over whether the act captures prior offenses that can be committed recklessly. Recklessness is on the lower end of the culpability scale, following purpose and knowledge and preceding negligence.

Under the provision of the act at issue here, a prior offense qualifies as violent if it involves “the use, attempted use, or threatened use of physical force against the person of another.”

Such offenses don’t trigger the act, Justice Elena Kagan said, writing for a plurality of the court, joined by Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch.

The “against another” phrase, when modifying the “use of force” phrase, “demands that the perpetrator direct his action at, or target, another individual,” Kagan said.

It’s the latest high-court ruling limiting the reach of a federal criminal statute, following the court’s June 3 ruling curbing another 1980s law, that one aimed at computer hacking. The government had prevailed in several career criminal act cases in recent years.

The outcome is a “clear, categorical rule that will benefit defendants,” said Leah Litman, a University of Michigan Law professor who, along with other scholars, filed an amicus brief supporting the defendant in the case, Charles Borden. Litman noted that, absent the act’s 15-year minimums, federal law provides for a 10-year maximum.

Justice Clarence Thomas didn’t join Kagan’s opinion, but he begrudgingly joined the result. He focused on the “use of force” phrase alone, saying it applies to “intentional acts designed to cause harm.”

Thomas’ reluctance was prompted by his disagreement with a prior decision, 2015’s Johnson v. United States. Johnson struck down another part of the act, under which, Thomas said in a concurrence Thursday, Borden’s prior Tennessee reckless assault conviction would have qualified as violent.

All five justices agreed to reverse the U.S. Court of Appeals for the Sixth Circuit, which said Borden’s reckless prior triggered the act.

But Congress didn’t want the act’s stiff penalties to capture “the too-common stuff of ordinary offenders,” Kagan said.

“Under the same Tennessee reckless-assault law applied to Borden, people have been convicted for injuries attributable to running a stop sign or veering onto the sidewalk,” her opinion said. She listed other reckless examples, like a shoplifter landing on a customer after jumping off a mall balcony while fleeing security.

Such reckless offenses, she concluded, “are not the stuff of armed career criminals.”

The Justice Department didn’t immediately return a request for comment on the ruling. At the oral argument, deputy U.S. solicitor general Eric Feigin said “harming someone by knowingly disregarding their physical safety is a serious crime. It forms the core of numerous aggravated assaults, common law robbery, and murder offenses, and cutting those crimes out of the ACCA would defy both common sense and Congress’s clear intent as expressed in the statutory text.”

Kannon Shanmugam of Paul, Weiss, the veteran Supreme Court lawyer who argued for Borden, declined comment. Shanmugam, chair of the firm’s Supreme Court and Appellate Practice Group, was set to argue the same issue in another case last term, but his client, James Walker, died while the case was pending. The court then granted review of Borden’s case to resolve the issue.

Dissent: Not ‘Small-Time Criminals’

Kavanaugh’s lengthy dissent struck a different tone, joined by Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett.

“ACCA does not ensnare low-level offenders or small-time criminals,” Kavanaugh said.

He called Kagan’s opinion “mystifying,” noting that “Congress enacted ACCA’s use-of-force clause in 1986 to cover the prototypical violent crimes, such as assault and homicide, that can be committed with a mens rea of recklessness.” Mens rea, Latin for “guilty mind,” is the legal term for the required mental state in a given case.

Thursday’s ruling, Kavanaugh wrote, “overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence.” He listed his own reckless examples, like a defendant who was convicted of reckless homicide for shooting another man in the chest and killing him during a fight.

On the defense side, the ruling prevents what the National Association of Criminal Defense Lawyers warned the justices would have resulted in “unjust and disproportionate sentences for defendants nationwide.”

A contrary holding, the group said in an amicus brief, “would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target.”

The case is Borden v. United States, U.S., No. 19-5410.

(Adds Litman comments, additional reporting. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com

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