by Dale Chappell

In a case that further narrowed the problematic Armed Career Criminal Act (“ACCA”), the Supreme Court of the United States (“SCOTUS”) held on June 10, 2021, that a “violent felony” under the ACCA requires the use of force targeted against a person, not merely reckless conduct resulting in the use of force.

The case came before the high court after Charles Borden was convicted of being a felon in possession of a firearm, under 18 U.S.C. § 922(g), and was sentenced under the ACCA due to his prior Tennessee aggravated assault convictions. While two of those convictions qualified for the ACCA, a third for “reckless” aggravated assault was debated but ultimately qualified under Sixth Circuit precedent. Borden was sentenced to a reduced sentence of just over nine years, and he appealed.

The Court of Appeals’ three-page unpublished opinion summarily rejected Borden’s challenge that recklessness does not meet the definition of the use of force against a person in the ACCA’s “elements clause.” Under that provision, a prior conviction qualifies as a violent felony if it involved the attempted, threatened, or actual “use of physical force against the person of another.” Borden’s argument was that only purposeful or knowing use of force can qualify and that Sixth Circuit precedent allowing reckless conduct to also qualify is wrong. The court sympathized with Borden, acknowledging he’s “not alone” in that argument but stuck by its prior decisions holding that reckless conduct satisfies the elements clause of the ACCA.

Borden’s petition to SCOTUS for a writ of certiorari was granted to address whether a prior conviction can count as a violent felony under the ACCA if it requires only a mens rea of recklessness, which is a less culpable state of mind than purposeful or knowing conduct. Putting the purpose of the ACCA into perspective, SCOTUS set out to define the scope of the elements clause.

Because of the harshness of the ACCA penalty, which requires a minimum 15-year federal prison sentence without parole, the Court said “the scope of the statute is closely confined.” The Court had already narrowed the ACCA’s scope when it declared the so-called residual clause of the violent felony provision unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015), leaving only the elements clause and list of specific offenses to define what counts as a violent felony under the ACCA. And before that, the Court had constrained the way a sentencing court analyzes a prior conviction, by limiting the court’s focus to only the elements of the offense and not what the defendant actually did.

State of Mind Matters

The Court started off its opinion by identifying four categories of mental states commonly found in criminal statutes, in descending order of culpability: (1) purposefully, (2) knowingly, (3) recklessly, and (4) negligently. These were further broken into two groups, with the first two being a deliberate choice to harm someone, and the last two being a disregard for the risk of injury to someone.

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court held that a drunk-driving offense does not meet the violent felony definition of the almost identically-worded elements clause of 18 U.S.C. §16(a), because it is a crime of negligence and not a deliberate act. The “critical aspect” in that case was whether the defendant used physical force “against the person or property of another.” Negligence, the Court said, does not rise to that level.

And then, in Voisine v. United States, 579 U.S. 686 (2016), the Court held that a prior conviction for domestic violence with only a reckless mental state does qualify to prohibit a person from possessing a firearm under § 922(g)(9). That statute’s definition of a qualifying conviction requires “the use or attempted use of physical force,” much like the ACCA’s elements clause but without targeting a person. Taking into account the purpose of the statute in that case, the Court concluded that a reckless mens rea satisfies the “use” of force to bar domestic violence offenders from possessing guns.

Notably, the Court expressly left open the question in that case of whether reckless offenses could qualify under more onerous criminal statutes like the ACCA. “Today, we reach the question we reserved in Leocal and Voisine,” the Court said in finally reaching the issue in Borden’s case.

Recklessness Is Not Enough for the ACCA

One thing neither of those cases addressed was the target of the force, the Court explained. Much of the argument came down to the definition of the word “against” as used in the elements clause of the ACCA. “If ‘against,’ as used here, expressed a kind of directedness or targeting, then recklessness ... falls outside the elements clause,” the Court said. The Government contended that “against” in the ACCA should mean to “make contact with,” like “waves crashing against the shore.” Borden, on the other hand, argued that it means “in opposition to,” as in “the general deployed his forces against a rival.”

The Court agreed with Borden. “The critical context here is the language that ‘against another’ modifies ‘the use of force.’” The Court found that this means “targeted” or “directed” force against someone. The Court also agreed with Borden that the ACCA’s “against” term is an oppositional term that requires purposeful conduct.

The Purpose of the ACCA Requires Intent of Injury

The Court reiterated why the ACCA exists: “To address the special danger created when a particular type of offender—a violent criminal—possesses a gun.” Allowing reckless offenses to qualify, the Court reasoned, would “ensnare” a wide swath of offenders who would not usually be the type of criminal the ACCA was designed to take off the streets. Under the same Tennessee reckless aggravated assault statute at issue in Borden’s case, for example, people have been convicted for car crashes while texting and causing injuries after running a stop sign. “Are these really ACCA predicates?” the Court rhetorically asked.

The Court also reminded that the categorical approach (and modified categorical approach) that SCOTUS established over 30 years ago does not distinguish between someone who caused injuries in a car crash while texting and someone who recklessly assaulted someone, like Borden did. That’s because a sentencing court cannot consider the facts of the prior conviction to pick and choose which convictions qualify under the ACCA. The Court, however, acknowledged that some offenders would escape ACCA’s grasp under this method.

A Court Divided

Borden was a dead-even split decision with Justice Thomas casting the crucial fifth vote in favor of Borden. But he only concurred in the judgment and not the Court’s reasons for reaching that judgment. There was much disagreement between the plurality (the four Justices in favor of relief) and the dissenters on the meaning of the elements clause and whether mens rea plays a role under the ACCA. The dissenters reasoned that by excluding reckless offenses, murderers would slip through the cracks under the ACCA. The plurality, though, focused on the reckless offenders who would get 15 years minimum in prison when they weren’t the “stuff” of the ACCA.

But all of that is merely dicta or “talk” without much substance. In other words, it wasn’t the holding of the Court, nor was it the position of the majority of the Court in reaching its decision, because Thomas only agreed with the outcome and not that reasoning. In fact, he had his own reasoning that was completely different from the other two factions of the Court. Instead, he argued that the Court should overturn Johnson and resurrect the residual clause to allow Borden’s reckless prior to qualify.

The dissenters also warned of the impending motions coming from prisoners who would “inundate” the courts to vacate their ACCA sentences. However, the idea that forcing someone to serve an illegal sentence in order to save the courts some extra work did not sway the plurality, which criticized the dissenters for such a view. See: Borden v. United States, 141 S. Ct. 1817 (2021). 

Additional sources: scotusblog.com, natlawreview.com

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