The US Supreme Court on Thursday overturned a ruling by the US Court of Appeals for the Sixth Circuit that “reckless” crimes qualify as violent felonies for purposes of the Armed Career Criminal Act (ACCA).
The ACCA mandates a 15-year sentence for those persons found guilty of illegally possessing a firearm who have been convicted of three or more violent felonies in the past. To qualify as a violent felony under the ACCA the crime must involve “the use, attempted use, or threatened use of physical force against the person of another.” Petitioner Charles Borden Jr. had pleaded guilty to a felon-in-possession charge, and the government sought to apply the enhanced sentence under the ACCA.
One of the three violent felonies the government alleged as a predicate to the ACCA charge was for reckless aggravated assault under Tennessee law. Borden argued that conduct must be knowing or purposeful to satisfy the act’s requirement of “force against the person of another,” and that his conviction for reckless aggravated assault does not qualify. The district court disagreed with his argument and sentenced him as a career criminal, and the Sixth Circuit upheld the conviction. The Supreme Court reversed that judgment and remanded the case.
Justice Elena Kagan, joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch, wrote the opinion of the court, concluding that any offense with a mens rea or mental state of recklessness does not qualify as a violent felony under the ACCA. She wrote that reckless behavior is a less culpable mental state because it involves “insufficient concern with a risk of injury” rather than a knowing intent to harm another. She also concluded that the ordinary meaning of “violent felony” requires knowing or intent behind the act. Furthermore, classifying a reckless crime as a violent felony would conflict with the purpose of the ACCA, which is to address the special danger posed by a violent felon, that is, someone who has repeatedly committed purposeful violent crimes, as opposed to someone who has committed reckless offenses, which does not show intent but rather merely a “degree of callousness toward risk.”
Justice Clarence Thomas concurred in the judgment, but wrote a separate opinion in which he concluded that a reckless crime does not possess an element of the “use of physical force” which would only apply to “intentional acts designed to cause harm.” He did write that the residual clause of the ACCA (18 USC § 924(e)(2)(B)(ii)) would classify Borden as a career criminal, but noted that the 2015 decision in Johnson v. United States held that the residual clause was unconstitutionally vague. Thomas would like to overrule the decision in Johnson, but accepted it here “because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause.”
Justice Brett Kavanaugh wrote a dissent, joined by Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett, arguing that the plurality’s reading of “against the person of another” does not have anything to do with the mens rea for violent felonies. He wrote instead that the phrase is “a centuries-old term of art in the criminal law that distinguishes offenses against the person from offenses against property.” He also argued that the ordinary meaning of the phrase “encompasses reckless offenses.”