WASHINGTON — The Supreme Court on Thursday narrowed the reach of the federal Armed Career Criminal Act, a kind of three-strikes statute, ruling by a 5-4 vote that violent felonies committed recklessly — as opposed to intentionally or knowingly — do not count as strikes.
The law requires mandatory 15-year sentences for people convicted of possessing firearms if they have earlier been found guilty of three violent felonies. An offense qualifies as a violent felony if it involves “the use, attempted use or threatened use of physical force against the person of another.”
The majority featured an unusual coalition, with Justice Neil Gorsuch joining the three-member liberal wing and Justice Clarence Thomas voting with that plurality on different grounds.
The case concerned Charles Borden Jr., who pleaded guilty to a federal gun crime. Prosecutors sought to impose the mandatory 15-year sentence based on three earlier convictions, one of them in Tennessee for reckless assault. That conviction, Borden argued, should not count as a strike. Lower courts rejected his argument, and he was sentenced under the career-criminal law.
Justice Elena Kagan, writing for four justices, disagreed, saying the law excluded crimes in which the defendant had merely been reckless. The words “against the person of another,” she wrote, requires volitional conduct and “demands that the perpetrator direct his action at, or target, another individual.”
She gave an example to illustrate the difference. Consider, she wrote, a commuter, late for work, who runs a red light and hits a pedestrian. That driver was reckless, she wrote, but “has not directed force at another: He has not trained his car at the pedestrian understanding he will run him over.”
“In ordinary language,” Kagan wrote, “against” means “in opposition to,” giving examples: “The general deployed his forces against a rival regiment, or the chess master played the Queen’s Gambit against her opponent.”
In addition to Gorsuch, Justices Stephen Breyer and Sonia Sotomayor joined Kagan’s plurality opinion.
Thomas agreed with the plurality’s bottom line, but for a different reason.
“A crime that can be committed through mere recklessness does not have as an element the ‘use of physical force,’” he wrote, quoting from an earlier opinion, “because that phrase ‘has a well-understood meaning applying only to intentional acts designed to cause harm.’”
In dissent, Justice Brett Kavanaugh wrote that “the court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence.”
“Offenses against the person,” he wrote, is a widely used legal term of art that encompasses categories of crimes and does not connote degrees of culpability. Kagan responded that the phrase in the career-criminal law was meaningfully different.
“That is no way to do statutory construction,” she wrote. “A court does not get to delete inconvenient language and insert convenient language to yield the court’s preferred meaning.”
Kavanaugh added that, in any event, the ordinary meaning of “against the person of another” encompasses recklessness.
“If an individual fires a gun recklessly at a house and injures someone inside, that individual has used force against the victim,” he wrote. “If an individual recklessly throws bricks off an overpass and kills a driver passing underneath, that individual has used force against the victim. If an individual recklessly drives 80 miles per hour through a neighborhood and kills a child, that individual has used force against the child.”
“It defies common sense and the English language,” he wrote, “to suggest otherwise.”
Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett joined Kavanaugh’s dissent in the case, Borden v. United States, No. 19-5410.