Old Reckless Crime Shouldn’t Lengthen Gun Sentence, High Court Rules

The Supreme Court split 5-4 on the case Thursday, with Justices Neil Gorsuch and Clarence Thomas splitting off from other conservative members of the bench.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — A convicted felon whose priors included one instance of reckless aggravated assault should not have been given an enhanced sentence after he was later caught with a handgun, the U.S. Supreme Court ruled 5-4 Thursday.

The decision marks the latest narrowing of the Armed Career Criminal Act, with Justice Elena Kagan writing for the plurality this morning that no criminal offense “can count as a ‘violent felony’ if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.”

Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch joined Kagan’s opinion in full, while Justice Clarence Thomas concurred only in judgment, splitting off from other conservative members of the court.

“The treatment of reckless offenses as ‘violent felonies’ would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the ‘armed career criminals’ ACCA addresses — the kind of offenders who, when armed, could well ‘use [the] gun deliberately to harm a victim,'” Kagan wrote.

Charles Borden brought the appeal after police found him carrying a gun during an April 2017 traffic stop — he had been parked in an interstate median and pleaded guilty in Tennessee to being a felon in possession of a firearm. Because of his three prior convictions of aggravated assault with a weapon, prosecutors argued that he was eligible for an enhanced sentence under the Armed Career Criminal Act.

Borden argued that the state needed to prove a higher criminal intent, or mens rea, standard for an increased penalty under the ACCA, but a federal judge sentenced him to nine years and seven months.

In affirming the lengthier punishment, the Sixth Circuit cited Voisine v. United States, a 2016 domestic assault out of Maine that led the Supreme Court to say reckless conduct qualifies as use of force.

Thomas wrote in the concurring opinion that Borden’s case forced the justices “to choose between aggravating a past error and committing a new one.”

Whereas Kagan focused in the plurality opinion on the statutory interpretation of “violent felony,” namely the requirement such force be used “against the person of another,” Thomas said his analysis rests on the phrase “use of physical force.”

“As I have explained before, a crime that can be committed through mere recklessness does not have as an element the ‘use of physical force’ because the phrase ‘has a well understood meaning applying only to intentional acts designed to cause harm,’” Thomas wrote. “The elements clause does not encompass petitioner’s conviction because the statute under which he was convicted could be violated through mere recklessness.”

The dissenting justices slammed Borden meanwhile for arguing “that ACCA’s phrase ‘use of physical
force against the person of another‘ somehow excludes those same reckless offenses, including reckless assault and reckless homicide.” (Emphasis in original.)

“To put Borden’s argument in real-world terms, suppose that an individual drives a car 80 miles per hour through a neighborhood, runs over a child, and paralyzes her,” Justice Brett Kavanaugh wrote, joined by Chief Justice John Roberts as well as Justices Samuel Alito and Amy Coney Barrett. “He did not intend to run over and injure the child. He did not know to a practical certainty that he would run over and injure the child. But he consciously disregarded a substantial and unjustifiable risk that he would harm another person, and he is later convicted in state court of reckless assault.” 

Kagan used the example of a car crash as well to note that the focus on “purposeful and knowing acts” covers plenty of crime.

“Suppose a person drives his car straight at a reviled neighbor, desiring to hit him,” she wrote. “The driver has, in the statute’s words, ‘use[d] … physical force against the person of another.’ The same holds true for knowing behavior. Say a getaway driver sees a pedestrian in his path but plows ahead anyway, knowing the car will run him over. That driver, too, fits within the statue: Although he would prefer a clear road, he too drives his car straight at a known victim.” 

Federal defender Erin Rust represented Borden. She declined to speak about the ruling. The Justice Department did not respond to a request for comment.

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