[00:00:27] Speaker 05:
May it please the court, Lisa Wright, representing Cornell Barber.

[00:00:30] Speaker 05:
I'd like to reserve two minutes for rebuttal.

[00:00:32] Speaker 05:
Mr. Barber is seeking a variety of alternative remedies here, but they all depend on his claim that he is not and never was ACCA eligible.

[00:00:40] Speaker 05:
At the time of his plea in his sentencing, ACCA's residual clause appeared to be, but we now know per Samuel Johnson was not, a clear, valid basis for finding appellant

[00:00:48] Speaker 05:
DC assault with a dangerous weapon to be an ACCA violent felony.

[00:00:53] Speaker 05:
He entered a binding plea agreement that I don't think the government really disputes was driven entirely by the mutual understanding that he was ACCA eligible and a desire to avoid that 15-year minimum sentence.

[00:01:03] Speaker 05:
In fact, there was no valid basis for such a status, including under ACCA's force clause.

[00:01:08] Speaker 05:
For two independent reasons, DCADW does not have, quote, as an element, the use of physical force against the person of another.

[00:01:16] Speaker 05:
first addressing our mens rea, reckless mens rea argument.

[00:01:20] Speaker 05:
Because as the government acknowledges DCADW can be committed by employing a weapon recklessly, that is with indifference to its effect on others, it does not have as an element the use of physical force against the person of another.

[00:01:32] Speaker 05:
After Leacow, where the Supreme Court held this language requires more than negligent conduct, the circuits uniformly concluded that recklessness was not enough for a violent felony.

[00:01:43] Speaker 05:
Some courts have recently revised this position based on the Supreme Court's decision of Boisin, but Boisin is really irrelevant to the act of violent felony question in this case.

[00:01:52] Speaker 05:
was being considered very different language in a very different context and held only that reckless employment of force is a, quote, use, unquote, of force for purposes of prohibiting those with convictions for misdemeanor crimes and domestic violence from possessing guns.

[00:02:06] Speaker 00:
Can I ask you, when you say it's very different language, it's the same language except for the end of the clause that's at issue in this case, right?

[00:02:12] Speaker 05:
Yeah, yes, but it's an important ending, we would say.

[00:02:15] Speaker 00:
Yeah, and if we could just focus on that for a second.

[00:02:17] Speaker 00:
So I don't dispute the notion that the additional language could be germane.

[00:02:22] Speaker 00:
And the question, in my mind at least, is whether, given the way Vazine analyzed the issue, that addition of the language does make a difference.

[00:02:31] Speaker 00:
And for example, in Vazine,

[00:02:34] Speaker 00:
The court says repeatedly that it's construing the language at issue in that case by reference to the harm that would be caused to the victim.

[00:02:44] Speaker 00:
For example, it says, the harm such conduct causes is the result of a deliberate decision to endanger another.

[00:02:50] Speaker 00:
And there's language like that throughout the opinion that focuses on the harm to the victim.

[00:02:54] Speaker 00:
And in light of that language, I guess I'm wondering whether the additional language that you're pointing to in this statute would have made a difference given the way the court and law scene analyze the issue.

[00:03:05] Speaker 05:
by just focusing on the fact that someone was put in harm's way.

[00:03:08] Speaker 00:
And that it's a substantial risk of harm to that person because it looked like the way the court analyzed the question in Vazin

[00:03:16] Speaker 00:
assumed that the relevant criterion was whether there was a substantial risk of harm to the victim.

[00:03:22] Speaker 00:
And if one were to construe voicing that way, it seems like that same analysis would apply even though the additional language exists in this statute.

[00:03:34] Speaker 05:
Well, I guess I think a substantial risk of harm to a victim is different than that the against language actually does add in sort of more of an intentional element.

[00:03:44] Speaker 05:
I think in Boisin they said that the defendant, it was not, quote,

[00:03:51] Speaker 05:
indifferent with respect to the defendant was not indifferent with respect to the harmful consequences of his volitional conduct.

[00:04:00] Speaker 05:
So it's that indifference to the harmful consequences.

[00:04:02] Speaker 05:
And when you're trying to do something against someone, you do care about the consequences.

[00:04:06] Speaker 00:
But I guess even under your argument, I would assume that the addition of the language against the person would get to recklessness.

[00:04:13] Speaker 00:
So in other words, the floor would get to recklessness.

[00:04:18] Speaker 00:
So the floor would be

[00:04:20] Speaker 00:
recklessness with respect to the harm to the other person against whom the force was exerted, right?

[00:04:26] Speaker 00:
So that's, and it's not, you don't have to intend that the harm occurred against the other person.

[00:04:31] Speaker 00:
You have to be reckless with respect to the harm to the other person.

[00:04:34] Speaker 05:
With respect to me sounds different than against though.

[00:04:38] Speaker 00:
And what's the difference there?

[00:04:40] Speaker 00:
Because I'm not following that distinction.

[00:04:42] Speaker 05:
Well, I think, again, suggests that you actually care about the consequences.

[00:04:46] Speaker 05:
And when you're just putting someone at risk, but you don't care whether they get hurt or not.

[00:04:53] Speaker 00:
But if we're talking about recklessness, aren't we just where it's the degree of care that accompanies the standard of recklessness, which means a substantial risk.

[00:05:03] Speaker 00:
Do you think that?

[00:05:06] Speaker 00:
that more is required under the statute that we have here?

[00:05:08] Speaker 05:
Yes, because you have to have a substantial risk, but you don't care about the consequences.

[00:05:17] Speaker 05:
And here you do have to care about the consequences to make it a violent felony.

[00:05:23] Speaker 00:
Are both of those formulations conceptions of recklessness, just that one's extra recklessness or something, or I feel like I'm missing something?

[00:05:31] Speaker 05:
I think if use requires recklessness, but then you have to be reckless against someone, I think that means, yeah, I guess, I don't know if that is part of the recklessness inquiry or if that's recklessness plus.

[00:05:42] Speaker 05:
I'm not sure.

[00:05:43] Speaker 00:
Well, it seems like, at least in my mind, and please tell me if I'm missing something, it seems like a lot turns on that.

[00:05:48] Speaker 00:
If Voisin already presumed recklessness with respect to the victim, which the particular snippet that I read in some other language in the opinion seems to attach that assumption to the language at issue there, then the question would be whether the additional language in this statute really changes anything.

[00:06:06] Speaker 00:
Because we're still in the land of recklessness with respect to the victim, recklessness against the victim.

[00:06:10] Speaker 00:
I don't know that I see a distinction between those two.

[00:06:12] Speaker 05:
Well, I guess I would say when you're throwing a plate against the wall and there are people nearby, you are reckless as to those people, but you are truly indifferent as to what happens to them.

[00:06:23] Speaker 05:
And when it says for a violent felony, you have to use force against someone, I think that when you're recklessly throwing a plate, you have to actually be trying to harm that person, to be using it against that person.

[00:06:39] Speaker 00:
So your view is that the hypothetical in Wauzine, where a plate is flung near somebody and the shards break off, that that wouldn't be enough under this statute?

[00:06:49] Speaker 05:
If they did not have some level of intent of harming that person, no.

[00:06:53] Speaker 00:
Including substantial risk of harm.

[00:06:57] Speaker 05:
That doesn't rise to the level of intent that's required, I wouldn't say.

[00:07:01] Speaker 05:
Just doing something that you know is possibly going to hurt someone is not going to be sufficient to be intent to hurt them.

[00:07:08] Speaker 00:
So you think this one requires intent, that recklessness is not enough?

[00:07:12] Speaker 05:
Yeah, I can't think of anything between recklessness and intent, but certainly more than recklessness.

[00:07:16] Speaker 05:
But yes, I would think you would need to intend harm, and not just be taking actions that you know present a substantial risk of harm.

[00:07:24] Speaker 05:
Because we're talking here about a crime that's going to label you an armed criminal, and we're defining violent felonies.

[00:07:30] Speaker 05:
So the context also matters.

[00:07:32] Speaker 05:
And we know that the Supreme Court views these two statutes as having very different purposes, and is perfectly

[00:07:37] Speaker 05:
willing to define the same identical language, to hear the language isn't identical, but even the identical language has been defined very differently, and Castleman and Johnson do the different purposes, and when you're, you have to look, the context matters of what term you're defining, and what the purpose of that definition is.

[00:07:54] Speaker 00:
I guess maybe I misunderstood the other, the decisions that you rely on,

[00:07:58] Speaker 00:
I don't know that I read those to contemplate that this statute would require intent.

[00:08:03] Speaker 00:
I thought what they contemplated, like the Harper decision for example from the Sixth Circuit, I thought what they contemplated was

[00:08:10] Speaker 00:
recklessness but against the other person.

[00:08:13] Speaker 00:
Do you read those to require intent?

[00:08:16] Speaker 05:
I thought they were saying that recklessness against another person means more than just recklessness.

[00:08:21] Speaker 05:
I mean, it means that your state of mind, you know, your state of mind is negligent, reckless, intentional.

[00:08:27] Speaker 05:
I thought they were saying, you know, it's not enough.

[00:08:30] Speaker 05:
You've got to go bump it up because it's against a person.

[00:08:33] Speaker 05:
That's what my understanding was.

[00:08:37] Speaker 05:
I would say Voisin makes perfect sense in the context it's decided in because it's perfectly understandable that Congress would want to keep those who injure their family members by, for example, recklessly hurling plates near them from bringing guns into that sort of volatile domestic mix.

[00:08:59] Speaker 03:
Your emphasis on distinguishing Voisin as the against another.

[00:09:04] Speaker 05:
That's one, but the context also.

[00:09:06] Speaker 03:
When I read Voisin, it doesn't appear that the court would put any weight on that because it effectively treats the statute in Voisin, which didn't use the against another language as if it did.

[00:09:20] Speaker 03:
So the very first paragraph, the second sentence in which

[00:09:25] Speaker 03:
The court explains what the opinion is about.

[00:09:28] Speaker 03:
It says that phrase – this is misdemeanor crime of domestic violence – that phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the use of physical force.

[00:09:42] Speaker 03:
So the court is assuming that the

[00:09:47] Speaker 03:
But the point of the language is it has to be against a person.

[00:09:50] Speaker 03:
And similarly, when the court's discussing lia cal, which is a different statute than the one we have in front of us, but also uses against a person, the court says, the Vazin court says, in that decision, this court addressed a statutory definition similar to here.

[00:10:09] Speaker 03:
There, quote, the use of physical force against the person or property of another.

[00:10:15] Speaker 03:
And then it says, for example, the court stated one would not ordinarily say a person uses physical force against another by stumbling and falling into him.

[00:10:26] Speaker 03:
That reasoning fully accords with our analysis here.

[00:10:29] Speaker 03:
So I know that you're putting emphasis on the against language, but it doesn't seem like that

[00:10:35] Speaker 03:
is the absence of that language made any difference between Liakal and Voisin?

[00:10:43] Speaker 03:
It's a different language, but it doesn't seem to have any role.

[00:10:47] Speaker 05:
Well, I thought that the court in Voisin went out of its way to say that the only term we're defining is use, and everyone agrees that's the only word.

[00:10:55] Speaker 05:
And then they had the footnote where they said, we are not

[00:10:58] Speaker 03:
Yeah, of course they're only using the word use because there isn't against another person in that.

[00:11:02] Speaker 05:
There was a victim.

[00:11:04] Speaker 03:
But what I'm saying is they are assuming that the language means use against another person.

[00:11:13] Speaker 03:
They say it twice.

[00:11:14] Speaker 03:
And so I'm not sure how we can give particular extra import to it.

[00:11:19] Speaker 05:
Well, I think there may be a difference between saying there's a victim and in fact

[00:11:25] Speaker 05:
There's a difference between saying there's a victim and the force, in fact, was against them and saying that the person intended that.

[00:11:32] Speaker 05:
It's the mental state we're talking about here.

[00:11:35] Speaker 03:
That's the question we have to answer, if the intention is required or not.

[00:11:39] Speaker 03:
Right.

[00:11:40] Speaker 03:
You said that the context is different here.

[00:11:45] Speaker 03:
One of the things the court was worried about in

[00:11:47] Speaker 03:
Was that there were a lot of statutes that would otherwise go down.

[00:11:51] Speaker 03:
Yes, because the model penal code had interpreted Intent to include recklessness for assaults.

[00:12:01] Speaker 03:
Isn't that also true here that there are lots of things that

[00:12:04] Speaker 03:
would be considered violent, like, quote, assault with a deadly weapon, that won't be.

[00:12:12] Speaker 03:
And so a lot of statutes that Congress was expecting would be included for armed career criminals wouldn't be included anymore.

[00:12:21] Speaker 05:
Well, in Voisin, that including recklessness, excluding recklessness, excuse me, would have actually made the state, the whole statute, like broadly inoperable in like 35 states.

[00:12:34] Speaker 05:
Here, there's no issue that this ACCA statute isn't going to apply to plenty and plenty of statutes.

[00:12:41] Speaker 05:
It's really the

[00:12:42] Speaker 05:
The fact that the categorical approach does end up excluding the Congress has it within its authority to get rid of the categorical approach, you know, if it wants to.

[00:12:50] Speaker 05:
So that's really more of what's happening with Your Honor, I think, is referring to that violent conduct is being eliminated via the categorical approach.

[00:12:58] Speaker 05:
But it's not as if there aren't plenty of statutes remaining, and that was not true.

[00:13:02] Speaker 05:
And Congress was legislating in the Voisin statute, the MCDV context,

[00:13:07] Speaker 05:
against this background where it was clear they wanted to keep these people that had committed these misdemeanor batteries under state law from having guns.

[00:13:17] Speaker 05:
And if you didn't put recklessness in there, that wasn't going to happen except in like 15 states.

[00:13:23] Speaker 05:
So it was just clearly inconsistent with Congress's purpose.

[00:13:27] Speaker 05:
It's not the case here.

[00:13:28] Speaker 05:
Here you might say, well, Congress wishes there were a few more included or whatever, but that's

[00:13:33] Speaker 05:
under the categorical approach, that's where we are, if recklessness isn't enough.

[00:13:38] Speaker 03:
Well, again, recklessness is the question we have to decide.

[00:13:41] Speaker 03:
The categorical approach has already been decided for us, but recklessness is not yet decided.

[00:13:47] Speaker 05:
I think that when you're defining, it's also the difference between a misdemeanor and a felony.

[00:13:53] Speaker 05:
You have to look at what you're defining here.

[00:13:54] Speaker 05:
When you're defining a misdemeanor, it makes perfect sense that a misdemeanor can be committed recklessly.

[00:13:59] Speaker 05:
But a felony, and especially a violent felony, you think of intentional conduct, and you're labeling the person an armed career criminal.

[00:14:05] Speaker 05:
And I wanted to quote from Castleman, where the court said,

[00:14:08] Speaker 05:
We have hesitated, as in Johnson, to apply ACCA to crimes which, though dangerous, are not typically committed by those whom one normally labels armed career criminals.

[00:14:17] Speaker 05:
And we would say that reckless drivers and reckless plate throwers are simply not the offenders one would normally label as armed career criminals.

[00:14:24] Speaker 05:
And just as in Johnson, it's a comical misfit.

[00:14:28] Speaker 05:
For the same reason the Supreme Court has required violent force under ACCA and only common law force for an MCDV, Wazine, we say, is no authority for applying ACCA to those who have employed force with mere recklessness.

[00:14:41] Speaker 05:
We've also argued that the violent force element is not met here.

[00:14:46] Speaker 05:
And our argument is simple.

[00:14:48] Speaker 05:
One, common law force is not ACCA violent force.

[00:14:51] Speaker 05:
That's what Johnson says.

[00:14:52] Speaker 05:
Poisoning involves common law force.

[00:14:54] Speaker 05:
That's what Castleman says.

[00:14:56] Speaker 05:
And because DCADW criminalizes poisoning, it sweeps more broadly than the Acre Force Clause.

[00:15:02] Speaker 05:
What Castleman holds is simply that you can't have bodily injury without common law force.

[00:15:07] Speaker 05:
And it gave poisoning and infecting with the disease as examples of common law force.

[00:15:12] Speaker 05:
But Mr. Barber submits that you can have bodily injury without violent force.

[00:15:16] Speaker 03:
I don't think Castleman decided whether poisoning

[00:15:20] Speaker 03:
is only common law force or violent force.

[00:15:23] Speaker 03:
All it had to conclude was that common law force was sufficient.

[00:15:28] Speaker 03:
It didn't have to resolve the question of whether of the violence done to sell its body's cellular structures indirectly by

[00:15:37] Speaker 03:
the sprinkling of poison was sufficient or not.

[00:15:40] Speaker 03:
Do you think it decided that question?

[00:15:41] Speaker 05:
Well, I think in its citation to Lefebvre, where it's citing that these things are common law batteries, I think I interpreted it as they were saying, this is the kind of term of art force, and term of art force, you know, is enough.

[00:15:54] Speaker 05:
Because really, in Johnson, the court talked about there's force that we talk about, violent force, and then there's this sort of term of art that the law, the common law came up with.

[00:16:02] Speaker 05:
And I thought Lefebvre was saying,

[00:16:04] Speaker 05:
these common law batteries with laser beams and things like that, those are term of art force.

[00:16:09] Speaker 05:
And that's what I think an interpretation of Castleman is.

[00:16:13] Speaker 03:
That's not our – that wasn't our interpretation of Castleman and I think Reddick, where we said – it was also said in Castleman that if you say that all that's required is common law force, then shooting somebody with a gun is not

[00:16:29] Speaker 03:
violent force because the only thing you directly apply is to the trigger and that's just a small amount of force.

[00:16:36] Speaker 03:
It's the impact of the bullet that makes a difference and likewise it could be argued that the impact of the poison is what makes the difference, exploding the cells that are affected by the poison.

[00:16:47] Speaker 03:
I just don't think that's decided that either of those are not a violent crime.

[00:16:55] Speaker 03:
They are definitely a common law violent crime, but the question is whether they're a common law crime for purposes of this action.

[00:17:00] Speaker 05:
Well, I mean, our argument is not that the direct and indirect argument at all.

[00:17:05] Speaker 05:
We're just saying it's not a sufficient degree.

[00:17:07] Speaker 05:
It's just not violent enough.

[00:17:09] Speaker 05:
And it just lacks the degree of power.

[00:17:14] Speaker 05:
And I would say in support of that,

[00:17:18] Speaker 05:
For example, in Castleman, the court suggests that there's a substantial gap between mere offensive touching and violent force when it lists acts of domestic violence that it says, quote, one might not characterize as violent in a non-domestic context.

[00:17:36] Speaker 05:
And Castleman included pushing, shoving, grabbing, pinching, hair pulling, slapping,

[00:17:40] Speaker 05:
hitting and biting.

[00:17:42] Speaker 05:
And if these forceful acts, which are all capable of causing pain and injury, obviously, are what the Casino Court referred to as minor uses of force that, quote, may not constitute violence in the generic sense, then we would say certainly the minimal force exerted by poison does not rise to that level.

[00:17:58] Speaker 05:
That's our argument.

[00:18:01] Speaker 03:
Are there questions from the panel?

[00:18:04] Speaker 03:
You want to say a little – or you can't say a little?

[00:18:06] Speaker 03:
Yeah.

[00:18:06] Speaker 05:
I mean, I'm happy to talk about our remedies, but if the Court is satisfied.

[00:18:10] Speaker 05:
Anybody have a question?

[00:18:11] Speaker 05:
Thank you.

[00:18:12] Speaker 05:
Thank you.

[00:18:21] Speaker 04:
May it please the Court, Lauren Bates on behalf of Pelley United States.

[00:18:25] Speaker 04:
DCADW, which requires the use of a dangerous weapon, that is a weapon that is capable of resulting in death or serious bodily injury by the use made of it, categorically requires as an element the use, attempted use, or threatened use of physical force, and that is violent force, as defined by the Supreme Court in Johnson.

[00:18:47] Speaker 04:
The fact that an ADW may be committed recklessly, that is, with the deliberate decision...

[00:18:54] Speaker 03:
Maybe you're underplaying your argument, but I thought in Powell, the court said, the deadly or dangerous weapon is an object which is likely to produce death or great bodily injury by the use made of it, not that it's capable of.

[00:19:06] Speaker 04:
That is the correct formulation of the element.

[00:19:08] Speaker 04:
I apologize.

[00:19:09] Speaker 04:
It is likely.

[00:19:10] Speaker 04:
So one who uses a weapon that is likely to result in that degree of injury, whether they use it intentionally, purposefully, or knowingly, or recklessly,

[00:19:21] Speaker 04:
deliberately making the decision to use a weapon that is likely to result in that degree of injury without care as to the fact that it may or may not, that individual uses force against the person of another.

[00:19:36] Speaker 00:
So can I ask you this question?

[00:19:37] Speaker 00:
So in the Supreme Court's decision in Begay, in discussing ACCA, it says that ACCA is concerned with the following kind of conduct.

[00:19:48] Speaker 00:
The offender is the kind of person who might deliberately point the gun and pull the trigger, as distinguished from a situation in which the offense just, quote, reveals a risk of callousness towards the risk.

[00:20:02] Speaker 00:
And the latter formulation kind of sounds like recklessness.

[00:20:05] Speaker 00:
And so it seemed like what the court was indicating in Begay and, yeah, it was before Boisines.

[00:20:10] Speaker 00:
So of course, it's an earlier decision.

[00:20:12] Speaker 00:
But that language sort of maps onto a distinction between intentionality on one hand and recklessness on the other.

[00:20:20] Speaker 04:
I think it's possible.

[00:20:21] Speaker 04:
I think first I would say Begay was not saying under any circumstance that that was Congress's only concern in enacting ACCA and the legislative history as this court detailed in its Mathis decision suggests Congress was clearly trying to encompass crimes such as the list is murder, rape, assault, and robbery.

[00:20:39] Speaker 04:
Two of those, second degree murder and

[00:20:41] Speaker 04:
assaults, whether with a dangerous weapon or the aggravated formulation, under the Model Penal Code and many jurisdictions, including the District of Columbia, are crimes that include and encompass reckless conduct.

[00:20:54] Speaker 04:
But beyond that, I think that if an individual, even if it's three prior convictions that are on the reckless formulation, where an individual has on three previous occasions engaged in the use of violent physical force deliberately

[00:21:10] Speaker 04:
but without care to the injury that results to a person, that individual still is, fits within Begay's kind of formulation, is a person who might deliberately pull the trigger.

[00:21:24] Speaker 00:
But doesn't it also seem like a person who has a degree of callousness towards risk?

[00:21:29] Speaker 00:
Seems like it describes that person to a T based on the conduct.

[00:21:34] Speaker 04:
So calluses towards risk, I think you could argue, put in the category of negligence.

[00:21:39] Speaker 04:
Obviously, they're not using in Begay the kind of mens rea formulations here of person who just isn't aware and doesn't care to assess the risk.

[00:21:49] Speaker 04:
But when it's a deliberate decision, so that's a conscious understanding of risk and the choice to engage in the conduct nonetheless.

[00:21:57] Speaker 04:
I think that that is someone who might deliberately pull the trigger.

[00:22:02] Speaker 04:
Whether or not it's going to hit the person who they're aiming at or towards or the crowd that they're firing into, that is precisely the type of individual that Congress... I would have thought that what you would say about the gay is that the court three times described DUI as a strict liability crime.

[00:22:21] Speaker 03:
Not even a negligence crime, but a strict liability crime.

[00:22:24] Speaker 04:
Yes, and I think the gay is not obviously grappling with this difference between recklessness and a higher immense rate of purpose or knowledge, but is excluding the individual who just engages in conduct without an awareness or understanding, whether that's strict liability or negligence.

[00:22:43] Speaker 04:
I do not think that that quote by any means resolves the question here today, which is, is a person who engages in conduct that is likely to produce a substantial

[00:22:52] Speaker 04:
risk of death or bodily injury by using what qualified as a dangerous or deadly weapon, is that person using force against the person of another?

[00:23:01] Speaker 04:
And does that individual fall within the ambit of offenders that Congress meant to include in the Armed Career Criminal Act?

[00:23:09] Speaker 04:
And I think the answer is yes, based not only on the language, as the panel has pointed to in Klausene, which is all of the discussion of what it means to use force includes within it this concept that the force is being used against another person.

[00:23:25] Speaker 04:
That's required for a misdemeanor crime of domestic violence.

[00:23:29] Speaker 04:
It has to have a victim.

[00:23:30] Speaker 04:
the use of force in the abstract.

[00:23:34] Speaker 04:
And there's no reason why Wassian's analysis should not apply to the very similarly worded Elements Clause definition in the Armed Career Criminal Act.

[00:23:45] Speaker 01:
What do you make of the footnote where they reserve the question though and said, obviously implicitly, that there could be such a distinction?

[00:23:52] Speaker 04:
I think it's just the Supreme Court recognizing that the question, that specific question, wasn't teed up and presented to it.

[00:24:00] Speaker 04:
But as other courts are supposed to do and free to do, its analysis may shed light on what the answer to that question is and would be when it was presented to the court.

[00:24:14] Speaker 04:
And I think that reading Vlasein's analysis, together with looking at the language that Congress used, there is no evidence by the fact that Congress, in one statute, requires a victim in one way, and in another includes the phrase against the person of another, that Congress was attaching any additional or heightened mens rea requirement.

[00:24:36] Speaker 03:
What did you mention, Mathis?

[00:24:38] Speaker 03:
What lesson do you take from the court's review of the legislative history in Mathis?

[00:24:43] Speaker 04:
In amending the Armed Career Criminal Act and adopting the Elements Clause, Congress intended to broaden the scope of offenses that would qualify as ACCA predicates.

[00:24:56] Speaker 04:
to encompass what were traditionally thought of as violent crimes, and the list would include murder and assault offenses, which at the time, the model penal code had been enacted two decades earlier, were commonly thought of as offenses that could be committed within mens rea of recklessness.

[00:25:17] Speaker 03:
So I read part of Mathis as saying that the reason that the Congress put in the words against the person were to distinguish it from property crimes, against property.

[00:25:32] Speaker 03:
like burglary or arson or extortion or something which affected property.

[00:25:35] Speaker 04:
And I think that that is one reason, yes, why that language would be there.

[00:25:40] Speaker 04:
And that's been picked up and recognized by a couple of courts that have been dealing with this recklessness question that really the against the person is just speaking to the category of offenses that fall under the Elements Clause.

[00:25:53] Speaker 04:
It's not requiring any heightened degree of mens rea.

[00:25:56] Speaker 04:
It's saying the Elements Clause here, as defined for the Armed Career Criminal Act,

[00:26:00] Speaker 04:
applies to the category of offenses that have people as victims.

[00:26:05] Speaker 04:
Just like misdemeanor crime of domestic violence applies to the category of offenses.

[00:26:09] Speaker 03:
So if you recklessly exploded a bomb on a sidewalk without aiming at a particular person, that would be

[00:26:18] Speaker 03:
against a person, but if you recklessly exploded it against the side of a building, that would not be a violent crime because it was against property.

[00:26:27] Speaker 04:
I think it depends on whether it's the crime that's charged, obviously, and what's required as the elements of the crime.

[00:26:34] Speaker 04:
If the elements of the crime did not require a risk of injury to a person,

[00:26:38] Speaker 04:
it wouldn't qualify under the Elements Clause, but exploding a bomb on the sidewalk, if it is reckless as to the fact that you have a conscious disregard of the fact that there are people who are walking around that sidewalk, that your bomb is the type of bomb that would have a force large enough that would likely injure those individuals, and you do it without

[00:27:01] Speaker 04:
you know, the specific intent to injure a specific individual, but with an awareness of that risk, yes, that would be the type of crime that would qualify under the elements clause.

[00:27:11] Speaker 01:
And as to a building, unless you are certain that no one was in there.

[00:27:14] Speaker 04:
Correct.

[00:27:15] Speaker 04:
And that would, I think this distinction between whether you're certain no one's in there or reckless as to the fact that during the day most office buildings are occupied by people would

[00:27:25] Speaker 04:
be solved by what crime, what predicate offense you're looking at for purposes of applying the ACA enhancement, whether the offense is one that requires, like ADW does, that it be committed against a person.

[00:27:38] Speaker 00:
What do you think about the notion that because there's been a lot of courts who have weighed in on this and had a situation in which the rule of lenity might come into play?

[00:27:46] Speaker 04:
I don't think that

[00:27:48] Speaker 04:
were at a point where the rule of lenity comes into play, and I disagree with the First Circuit's conclusion there, that there is simply looking at the language, nothing that suggests that Congress would have meant to include a heightened mens rea.

[00:28:01] Speaker 04:
They didn't use words.

[00:28:02] Speaker 04:
They didn't say the use of force intentionally directed at the person of another.

[00:28:07] Speaker 04:
They were legislating against the backdrop where they wanted, and there was history that

[00:28:11] Speaker 04:
showed the intent to include crimes like murder.

[00:28:14] Speaker 04:
Again, this would exclude second-degree murder from being a crime of violence for purposes of the Armed Career Criminal Act.

[00:28:21] Speaker 04:
And looking at the intent, looking at the words used, and looking at what is required as the Supreme Court defined in Boisin to use force,

[00:28:30] Speaker 04:
I think that it is not one where there's a grievous ambiguity, and to exclude reckless offenses would lead to an absurd result, would lead to the comical misfit that the Supreme Court has counseled against, because it would exclude offenses like second degree murder, like aggravated assault, or assaults with a deadly or dangerous weapon.

[00:28:51] Speaker 04:
And if the court has, I know I'm short on time, questions about the force piece, I'm happy to address that as well.

[00:29:01] Speaker 02:
Thank you.

[00:29:02] Speaker 04:
Thank you.

[00:29:02] Speaker 04:
We ask that the judgment below be affirmed.

[00:29:04] Speaker 02:
Ms.

[00:29:04] Speaker 02:
Wright, you don't have more time, but please come up and take a couple more minutes.

[00:29:08] Speaker 05:
Two points.

[00:29:09] Speaker 05:
Two points.

[00:29:10] Speaker 05:
The court in Johnson said context determines meaning, and we would say that having three reckless driving ADWs is a comical misfit as saying that person is a likely trigger puller, which is what Congress is concerned about.

[00:29:24] Speaker 05:
and about your honor's concern about knocking out a bunch of statutes.

[00:29:30] Speaker 05:
I forgot to say that of course the interpretation that DCADW, that the DC court has put on DCADW is very, very broad and not in any way necessarily the same definition in other jurisdictions.

[00:29:42] Speaker 05:
The idea that you can have a car accident in DC and be convicted of DC-ADW, I would think is, you know, that's... Do you think it's different?

[00:29:49] Speaker 03:
Do you think reckless, the kind of extreme recklessness that counts as a felony, do you think that that is...

[00:29:56] Speaker 03:
not a felony in other states?

[00:29:59] Speaker 05:
I don't know.

[00:30:00] Speaker 05:
I don't think the government's shown that it is.

[00:30:03] Speaker 05:
I think it strikes me as unusual that you can commit an assault with a dangerous weapon by recklessly driving.

[00:30:11] Speaker 05:
I think the DC case is unusual and we shouldn't assume that other statutes like that would be excluded.

[00:30:17] Speaker 03:
What do you think about this argument, or at least the suggestion in math is that the reason they stuck in the against persons was just to distinguish it from property crimes like burglary, et cetera?

[00:30:29] Speaker 05:
Yeah, I'm afraid I have not thought about that.

[00:30:31] Speaker 05:
I'm aware of what you're talking about, and I'm not sure I have a great answer on that.

[00:30:35] Speaker 00:
Can I just ask one follow-up question on that language?

[00:30:37] Speaker 00:
Because the addition of that language is, the existence of that language is key to your case, and I just want to reformulate a thought I had earlier.

[00:30:44] Speaker 00:
Yes, of course, you must think that the language requires intentionality.

[00:30:48] Speaker 00:
And I guess my question is, based on the analysis in Vazine, why would we think that the addition, the existence of that language would kick

[00:30:58] Speaker 00:
kick it up, given that the language in Boisin repeatedly talks about a substantial risk of harm to another person.

[00:31:05] Speaker 00:
And I just want to make sure I understand your argument, because I just want to make sure I'm not missing something.

[00:31:09] Speaker 05:
I guess I'm saying that when you commit an act volitionally, and you know that you're creating a substantial risk of harm to someone, that is reckless.

[00:31:17] Speaker 05:
But you are indifferent, if you're indifferent to whether you do harm that person, that would

[00:31:23] Speaker 05:
that would satisfy a misdemeanor crime of domestic violence.

[00:31:26] Speaker 05:
But when you say that you must use the volitional force, I think in Harper they talk, there's two different levels of intent involved.

[00:31:32] Speaker 05:
The intent to do the act, and then whether you care about the consequences.

[00:31:37] Speaker 05:
And that adding the phrase against the person another means that you do care about the consequences, and that's what's required under a violent felony.

[00:31:46] Speaker 05:
And we would say that the context of the statute makes that plain because it would just be a comical misfit to hold otherwise.

[00:31:52] Speaker 00:
And you care in a way that bumps up a substantial risk that the conduct will cause harm to another, which is what Fauzine assumed was the case there.

[00:32:00] Speaker 00:
But that's just not enough.

[00:32:01] Speaker 00:
It's not just a risk.

[00:32:01] Speaker 05:
It's your intention that that occur.

[00:32:04] Speaker 05:
You're not indifferent to whether it occurs.

[00:32:06] Speaker 05:
You want it to occur.

[00:32:07] Speaker 05:
In the car accident case, the person was not trying to injure the people he injured.

[00:32:13] Speaker 05:
He didn't commit a crime against those people.

[00:32:17] Speaker 05:
He drove his car without regard to whether he hurt them or not.

[00:32:21] Speaker 05:
And I can't imagine that Congress would consider that to be a violent felony, given the context that it's labeling the person an armed career criminal with a reckless mens rea.

[00:32:31] Speaker 05:
A mens rea is a very low mens rea.

[00:32:33] Speaker 05:
I mean, the idea that you commit a violent felony without an intent, I just don't think that makes sense.

[00:32:39] Speaker 05:
Thank you.

[00:32:47] Speaker 03:
We'll take that case under submission.