Conservative Justices Clarence Thomas and Neil M. Gorsuch joined the court’s three liberals to limit the reach of the law, which mandates a 15-year minimum sentence for possessing a gun if the person has been convicted of three or more violent felonies.
The question for the court was whether a conviction involving recklessness, as opposed to knowingly or intentionally harming another, counts as a “violent felony” to prompt the additional punishment.
Justice Elena Kagan, writing for a four-member plurality that included Gorsuch, said the text of the law makes clear it could not.
The law mandates that an offense qualifies if it “has as an element the use, attempted use, or threatened use of physical force against the person of another,” Kagan wrote, quoting the statute.
The phrase “use of physical force against the person of another,” she wrote, “demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner.”
Thomas provided the fifth vote to sway the case for defendant Charles Borden Jr., although he did not join Kagan’s 23-page opinion. He said that just the phrase “use of physical force” was enough to convince him, as it did in a previous case, that recklessness did not count.
“A crime that can be committed through mere recklessness does not have as an element the ‘use of physical force’ because that phrase ‘has a well-understood meaning applying only to intentional acts designed to cause harm,’ ” Thomas wrote, quoting his previous opinion.
The decision could mean a lighter sentence for Borden, a felon who had a pistol when he was arrested in Tennessee in 2017.
Borden had three prior convictions of aggravated assault under Tennessee law, and prosecutors invoked the Armed Career Criminal Act (ACCA) to boost Borden’s sentence. Borden claimed that because one of the convictions was for reckless aggravated assault, it did not count as a violent felony.
A district judge and the U.S. Court of Appeals for the 6th Circuit disagreed. But other courts have found differently, prompting the Supreme Court’s review.
Kagan, joined by Gorsuch and Justices Stephen G. Breyer and Sonia Sotomayor, said Congress was careful in its wording to mandate the enhanced sentencing only for some.
“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,” she wrote.
Kagan engaged in a spirited back-and-forth with Justice Brett M. Kavanaugh, who wrote for the other dissenters — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Amy Coney Barrett.
“If an individual fires a gun recklessly at a house and injures someone inside, that individual has used force against the victim,” Kavanaugh wrote. “If an individual recklessly throws bricks off an overpass and kills a driver passing underneath, that individual has used force against the victim. . . . It defies common sense and the English language to suggest otherwise.”
Kavanaugh said it was true that Congress did not write the ACCA to “ensnare low-level or ordinary criminals.”
But “ACCA’s 15-year mandatory minimum sentence is triggered only after a defendant is convicted of not one, not two, but three violent felonies committed on separate occasions — and then proceeds to commit a fourth felony by unlawfully possessing firearms,” Kavanaugh wrote in his 38-page dissent.
“Such repeated violent conduct is not the stuff of low-level or ordinary criminals.”
The splintered decision and the strong emotions in the Kagan and Kavanaugh opinions might have delayed its resolution. It was the court’s oldest unresolved case of the term, argued Nov. 3.
The case is Borden v. United States.