Courthouse Steps Oral Argument Teleforum: Borden v. United States

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As a convicted felon, Charles Borden Jr. was in violation of 18 U.S.C. § 922(g)(1) when caught at a traffic stop with a pistol. Under the Armed Career Criminal Act, Borden was sentenced to nine years and seven months imprisonment. The U.S. District Court for the Eastern District of Tennessee relied on the 6th Circuit Court's decision in United States v. Verwiebe as precedent; however, Borden argued that his due process protections were violated in the application of Verwiebe. Borden argued that one of his previous felonies - reckless aggravated assault - did not qualify as a violent felony under the use of force clause. The 6th Circuit retroactively applied the precedent that reckless aggravated assault does constitute a violent crime, and classified Borden as an armed career criminal. The Court of Appeals affirmed.   


Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation



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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument Teleforum on Borden v. United States. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups here at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.


      Today we are fortunate to have with us Kent Scheidegger, who is the Legal Director of the Criminal Justice Legal Foundation. After our speaker gives his opening remarks, we will then move to a live audience Q&A. Thank you for sharing with us today. Kent, the floor is yours.


Kent Scheidegger:  Thank you. In Borden v. United States, the Supreme Court once again explores which prior convictions count for the purpose of the Armed Career Criminal Act. That act adds an enhanced penalty for illegal possession of a firearm by a convicted felon if the felon has three priors for violent felonies. However, defining violent felony, given the wide range of state laws, has proved difficult. Justice Alito noted somewhat sarcastically during the argument, “It’s always a pleasure to have another case involving the Armed Career Criminal Act.” The person in question in this case includes, as violent felonies, one which has as an element, “the use, attempted use, or a threatened use of physical force against the person of another.”


      The question is what mental element the state law has to have for that provision to apply. There are two main precedents involved. In Leocal v. Ashcroft in 2004, the Court held that accidentally injuring a person while driving drunk is not a violent crime under another statute with the same wording. The Court did not resolve whether recklessness would qualify under the statute.


      In Voisine v. United States in 2016, the Court held the definition of misdemeanor crime of domestic violence in another provision of the Armed Career Criminal Act. Those include recklessly committed assault. The definition in that provision is use of physical force by persons with specified relationships to the victim. But there is no “against” phrase in that statute.


      The Model Penal Code establishes a hierarchy of mental states: purposeful, knowing, reckless, or negligent. This structure has been widely adopted. The defendant’s contention is that the “against” language in the Armed Career Criminal Act draws the line between knowing and reckless, while the government contends it is between reckless and negligent.


      Justice Roberts led off with the kind of hypothetical we typically see in these cases. He asked about a prankster who swings a bat near someone not intending to hit him but the bat slips and does hit him. Wouldn’t this reckless conduct be naturally described as the use of force against the other person? Defense counsel says it would not. And he continues to insist that use of force against a person is only intentional or purposeful or knowing use.


      Justice Breyer noted under the Model Penal Code strict definition of recklessness is limited to conscious disregard of a substantial and unjustifiable risk. He suggests that there is little difference between that and knowing that the result is likely to follow. And indeed the Model Penal Code does group recklessness along with purpose and knowledge as the mental states that are included by default in every statute that does not specify a mental state.


      My own brief in this case presented some research that shows that most people, given a set of hypothetical situations, do find reckless conduct comparably culpable with knowing conduct and really can’t distinguish between the two very well at all.


      The defense counsel made various responses to Justice Breyer’s comment. But perhaps the most convincing of these is that many states do not define recklessness as strictly as the Model Penal Code does. And the distinction between recklessness and negligence is often thin. At the other end of the scale, Justice Alito asked him about second-degree murder, which in most states has a variant of recklessness, so-called depraved heart murder as the way you can commit murder. If you do something extremely reckless, such as shooting into an occupied building and kill somebody, that’s murder even if you didn’t intend to kill anybody.


      Under the defendant’s definition, would a convicted felon with three priors of second-degree murder and not be classified as a violent felon? The defense counsel hedged that perhaps the extreme recklessness required in depraved heart murder might qualify, but still said the better view is that it would not. That supposedly better view might sink his case because it would strike most people as absurd that murder is not a violent felony or that a murderer has not used force against a victim.


      Justice Sotomayor asked about the wide range of mental states that qualify as reckless in various state statutes. And this really gets to the most difficult part of the case. Excluding all reckless offenses, we exclude some that obviously are violent, like second-degree murder, while including all reckless offenses would include some that most people would not consider violent.


      Justice Kagan asked about a pair of hypotheticals about a bank robber who hits a person with his car and making his getaway: one where he does so knowingly and the other where he does so recklessly. She saw little difference in moral culpability between them. Justice Gorsuch asked a remarkable question about construing the statute even more narrowly than the defendant asked. He asked if it should be construed to be limited to intentional crimes by which he apparently meant what the Model Penal Code calls “purposeful crimes,” crimes committed with the actual purpose of producing the bad result and excluding those committed knowingly but not purposefully. It seems unlikely that any of the other justices would go along with this, but perhaps he is taking out a unique position.


      Justice Kavanaugh suggested that the simple solution, which is often the best one he says, is to simply take Leocal and Voisine together as drawing the line between negligence and recklessness for all of the statutes defining violence in terms of the use of force. The defense counsel continued to insist the difference in language in the two statutes precludes that approach. During the government’s argument, Justice Kavanaugh noted that the Court in Voisine had stated that this was where Leocal had drawn the line.


      Justice Barrett asked two questions that appeared to be skeptical of the defense position. She noted that many state statutes define assault as including recklessness. Given the Court’s categorical approach to state statutes, the defense position would exclude all assaults in some states, even though most people regard assault as one of the quintessentially violent crimes. Second, she referred back to Justice Kagan’s car hypothetical and did not think that considering the reckless use of force in that example as being against the victim was at all a stretch in the language.


      The attorney for the government, on the other hand, as asked about situations where state courts have found recklessness for non-violent conduct, particularly with regard to driving cars. Such things as driving while texting and failure to buckle up a child have been found reckless, but few people would consider these to be acts of violence.


      Justice Breyer noted the consequences involved as a reason for narrowly construing the statute. This statute imposes a mandatory minimum, while even without the mandatory minimum, the judge can still impose up to 10 years in prison in an appropriate case. Justice Sotomayor also noted this consideration.


      Justice Kavanaugh noted the countervailing consideration that the statute requires three prior felony convictions. In Borden’s case, he has two priors for intentional assault, which are unquestionably violent crimes, and only the third conviction is in question. Unlike the statute in Voisine which takes away the right to possess a gun based on a single misdemeanor conviction, this statute is extremely unlikely to apply to anyone who is not, in fact, a violent criminal.


      I won’t pretend to predict a result based on the oral argument. That’s always a very dicey thing to do. I think we may see some crossing of the simplistic liberal-conservative lines here. It looks like Justice Gorsuch is more friendly to the defense position than Justice Kagan is. So we might see one of those scrambled cases. But we’ll wait and see. We will expect a decision sometime, maybe, early spring, perhaps even later. Thank you. Ready for questions.


Micah Wallen:  Absolutely. We’ll go ahead and open up the floor for audience questions. Not seeing any questions right away, Kent, a question I usually ask on these oral argument calls is—and you might have gotten into it a little bit right there—but was there anything that surprised you in the oral argument? Maybe questions from different justices or revealing of hands that you didn’t quite expect? I think that might have been what you were getting at with Gorsuch.


Kent Scheidegger:  I was. I was surprised by Justice Gorsuch’s question. I mean, that would be an extremely narrow -- one thing you have to keep in mind with all of these cases is when the court looks to a prior conviction in state law, they don’t look at what the person actually did. They only look at the minimal elements that that statute requires to be convicted under that particular law. So if the conviction is something for assault and it is possible under that state’s law to commit assault recklessly rather than intentionally, and recklessness is not included, then all convictions under that statute would not count as violent convictions, even though in a particular case, the person very deliberately beat the crap out of somebody. And so, knowing the definition in that way would exclude an awful lot of clearly violent crimes.


Micah Wallen:  Interesting. So we do -- thank you for that. That was very interesting. We do have one question that has come through. And we’ll go ahead and go to our first question.


Mitchell Keiter:  Hi, this is Mitchell Keiter. First of all, regarding the second-degree murder hypothetical, I mean, it’s not hypothetical because the Ninth Circuit basically found last year that second-degree murder, depraved heart, was not a violent crime under just that reasoning. I have two questions, although if you get a lot of other calls, feel free not to answer both. But the first question is I know one possibility is to distinguish between knowledge and recklessness. But those can be defined differently regarding the defendant’s subjective perception of whether a harm is substantially certain to follow or only a possible risk. But that might vary from the objective nature of the risk. In other words, there might be an almost certainty but the defendant does not perceive it or vice versa. It might not be certain but the defendant subjectively believes it is, which is why those two don’t really seem to be ideal grounds for -- the ideal place to draw the line.


      But my other question has to do with the distinction between conduct and result because if you look in Voicine, it says if a person throws a plate in anger against the wall near where his wife is standing, that hurl counts as a use of force, even if the husband did not know for certain or had as an object, but only realized the risk that it would happen. Well, the throwing of the plate is intentional because the person sees that his wife is there. So it seems to me that we’re not talking about accidental conduct. It has to be volitional and intentional regardless of the person’s perception of the consequence. And I’m wondering if sometimes the Court conflates the conduct and the result.


Kent Scheidegger:  Okay. Let me try and remember all of the questions, taking license from Justice Breyer I think. So on the first question, the difference between subjective and objective mental states and what the person perceives as far as recklessness goes, yeah, that’s one of the many subtle variations that come up when you examine a state’s law and try to decide whether it categorically matches the federal requirements or not. Frankly, I wish we could just get rid of the categorical approach and just look at the facts of what the person actually did in the prior case rather than go through this exercise. But I think that would require legislation at this point, and I doubt we’re going to get any legislation along these lines.


      Okay, the second question . . . briefly, what was it again?


Mitchell Keiter:  About conduct and result.


Kent Scheidegger:  Oh, and the plate hypothetical. The plate did come up. This time they threw a plate at a spider on the wall. But, yeah, the act certainly is volitional, and a person who acts recklessly does intend to do the reckless act. He doesn’t specifically intend the result. But it is a result that is obvious in most cases and likely. And so the moral distinction between that and committing an act, knowing that a result is substantially certain, is a thin one, I think. And that’s probably going to be, for those -- to include reckless conduct, the reason why it should be included.


Micah Wallen:  All right. We don’t have any other questions in the queue. I’ll offer up one last call. If any would like to join, please press star, then pound. And Kent, I’ll just offer up the floor to you for any closing remarks or anything else to share about the oral argument.


Kent Scheidegger:  Well, I think it is an important question to properly define the crimes that would be committed. I think recklessness, properly defined, does go in the definition of a violent crime: things like assault, things like second-degree murder. I am hopeful that the Court will include them when it comes down with its final decision.


Micah Wallen:  All right. And with that, I’d like to thank our expert for the benefit of his valuable time and expertise today. I’d also like to thank our audience for joining us. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at