WASHINGTON — The Supreme Court on Thursday narrowed the range of the federal Armed Career Criminal Act, a sort of three-strikes statute, where it is decided by a 5-to-4 vote that violent crimes committed recklessly—as opposed to intentionally or knowingly—do not count as strikes.
The law requires mandatory sentences of 15 years for people convicted of firearms possession if previously found guilty of three violent crimes. A felony qualifies as a violent felony if it involves "the use, attempted use or threat of physical violence against another person's person".
The majority had an unusual coalition, with Judge Neil M. Gorsuch joining the three-man Liberal wing and Judge Clarence Thomas voting with that majority on various grounds.
The case involved Charles Borden Jr., who pleaded guilty to a federal gun offense. Prosecutors sought to impose the mandatory 15-year prison term based on three previous convictions, one in Tennessee for reckless assault. That conviction, Mr Borden argued, should not count as a strike. Lower courts rejected his argument and he was convicted under the professional criminal law.
Judge Elena Kagan, who writes for four judges, disagreed, saying the law excluded crimes where the defendant had merely been reckless. The words "against the person of another," she wrote, require willful behavior and "requires the offender to direct his action or target another individual."
She gave an example to illustrate the difference. Think, she wrote, of a commuter late for work, running a red light and hitting a pedestrian. That driver was reckless, she wrote, but "has not directed violence at another: he has not trained his car on the pedestrian who understands he will run over him."
"In common language," wrote Judge Kagan, "against" means "contrary to," giving examples: "The general deployed his troops against a rival regiment, or the chess master played the queen's game against her opponent."
- A big month. June is peak season for Supreme Court decisions. It's the last month of the court's annual term and the judges tend to save their key decisions for the end of the term.
- 4 big cases. The court will rule on the fate of Obamacare, as well as a case that could enact numerous laws in the coming years that address election rules. It also takes a case on religion and gay rights and whether students can be disciplined for what they say on social media (here's an audio report on that subject; and here's where public opinion stands on some of the big things ).
- What to watch out for. The approaches that Amy Comey Barrett, the newest judge, and Brett Kavanaugh, the second newest, are taking. They will be crucial because the three Liberal judges now need at least two of the six Conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the Liberals only needed one Conservative.
- Looking forward. Next year's term, which begins in the fall, will include cases on abortion, guns and perhaps affirmative action, and could become the most significant term yet under Chief Justice John Roberts.
In addition to Judge Gorsuch, Judges Stephen G. Breyer and Sonia Sotomayor joined Justice Kagan's plurality opinion.
Judge Thomas agreed with the bottom line of plurality, but for a different reason. "A crime that can be committed by sheer recklessness does not have the 'use of physical force' as its element," he wrote, a previous opinion, "because that expression 'has a well-understood meaning that applies only to willful acts intended to cause harm'."
In dissent, Judge Brett M. Kavanaugh wrote that "the court's decision nullifies Congress' judgment of the danger of repeat violent criminals who unlawfully possess firearms and threaten to use further violence."
"Violations against the person," he wrote, is a commonly used legal term in art that encompasses categories of crimes and does not indicate a degree of guilt. Judge Kagan replied that the sentence in professional criminal law was fundamentally different.
"That's no way to build legally," she wrote. "A court may not remove inconvenient language and insert convenient language to give the court's preferred meaning."
Justice Kavanaugh added that the common meaning of "against the person of another" includes recklessness in any case.
"If a person recklessly fires a gun at a house and injures someone inside, that person has used violence against the victim," he wrote. “If a person recklessly throws rocks off an overpass and kills a driver driving under it, that person has used violence against the victim. If a person recklessly drives 80 miles per hour through a neighborhood and kills a child, that person has used violence against the child.
"It defies common sense and the English language," he wrote, "to suggest otherwise."
Chief Justice John G. Roberts Jr. and Judges Samuel A. Alito Jr. and Amy Coney Barrett joined Judge Kavanaugh's disagreement in Borden v. United States, No. 19-5410.