Voisine v. U.S.: Question of Whether "Crime of Violence" Includes "Reckless Conduct"

 

Introduction: Voisine v. United States

crime of violenceOn June 27, 2016, the Supreme Court issued a decision titled Voisine v. United States, 579 U.S. __ (2016) [PDF version]. In Voisine, the Court held, by a 6-2 margin, that 18 U.S.C. 922(g)(9), a statute which prohibits firearms possession for a person who has been convicted of a “misdemeanor crime of domestic violence” encompasses a state conviction that could be for a “reckless” assault rather than for a “knowing or intentional” assault. Although Voisine is not an immigration case and does not directly implicate any immigration statutes, it is worth reviewing because of its potential applicability in the immigration context for two reasons:

  1. Voisine's central holding that a conviction for “reckless assault” can be for a “crime of domestic violence” may reach 18 U.S.C. 16 (which defines a “crime of violence”). This would be significant in the immigration context because multiple immigration statutes rely on the definition for a “crime of violence” found in 18 U.S.C. 16. Among these is the definition of an immigration aggravated felony [see article] for a crime of violence [see section] found in section 101(a)(43)(F) of the Immigration and Nationality Act (INA). However, as we discuss, the Court expressly did not resolve this question.
  2. Voisine discusses Leocal v. Aschroft, 543 U.S. 1 (2004) [PDF version], a Supreme Court decision that found that a conviction in violation of a statute that either has no mens rea element or requires only negligence (in Local, the conviction in question was a DUI) is not an immigration aggravated felony for a crime of violence [see article on Leocal]. Leocal explicitly left open the question of whether 18 U.S.C. 16 encompasses “reckless conduct.” While Voisine does not resolve the question of whether 18 U.S.C. 16 includes “reckless conduct,” although it does preclude the possibility that similar reasoning to that used in Voisine may be applicable to 18 U.S.C. 16.

Although the Opinion of the Court authored by Justice Elena Kagan and the dissenting opinion1 authored by Justice Clarence Thomas present a variety of interesting issues, we will limit our inquiry in this article to examining the potential effects of the Voisine decision on the definition of a “crime of violence” in the immigration context.

Important Statutes in Voisine

Under 18 U.S.C. 922(g)(9), it is unlawful for a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to ship, transport, possess, or receive any firearm or ammunition.

The phrase “misdemeanor crime of domestic violence” is defined in 18 U.S.C. 921(a)(33)(A). First, 18 U.S.C. 921(a)(33)(A)(i) states that the conviction must be “a misdemeanor under Federal, State, or Tribal law.” Secondly, 18 U.S.C. 921(a)(33)(A)(ii) states that a “misdemeanor crime of domestic violence” means an offense that:

[H]as, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon…

The provision goes on to list the relationships between the convicted person and the victim that qualify under the definition of “crime of domestic violence.” However, Voisine is concerned with the part of the statute that discusses the element of the use or attempted use of physical force.

Issue and Decision in Voisine

The petitioners in Voisine had been convicted of violating section 207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[] bodily injury” to another.2 The domestic aspect of his conviction was not in dispute. However, the petitioners argued that, because the statute includes the phrase “recklessly,” his conviction was not for a crime of domestic violence as defined by 18 U.S.C. 921(a)(33)(A).

Supreme Court Finds that “Crime of Domestic Violence” Encompasses “Reckless” Conduct.

The Court held that the definition for “crime of domestic violence” in 18 U.S.C. 921(a)(33)(A) includes “reckless” assault.

First, Justice Kagan relied upon the American Law Institute (ALI) Model Penal Code to define what it means to “commit an assault recklessly” and to “commit an assault knowingly or intentionally.” Justice Kagan explained that in order to commit an assault recklessly, a person must act with a mens rea (state of mind) to “consciously disregard” the substantial risk that his or her actions will cause harm to another (see ALI, Model Penal Code sec. 2.02(2)(c) (1962)). To commit an assault knowingly or intentionally, a person must act with a mens rea “respecting that act's consequences” that harm to another is “practically certain” and to have that result as a “conscious object” (see ALI, Model Penal Code sec. 2.02 (2)(a)-(b)).

The petitioners argued that the use of the word “use” in 18 U.S.C. 921(a)(33)(A) means that the statute does not include “reckless assault.” In the terms used in the above passage, the petitioners argued that the statute only covers “knowing or intentional” domestic assaults. However, Voisine rejects this argument. Justice Kagan notes that the word “use” is defined as the “act of employing” something (see e.g., Webster's New International Dictionary 2806 (2d ed. 1954)). Citing to the Court's decision in United States v. Castleman, 134 S.Ct. 1405 (2014) [PDF version], Justice Kagan noted that the “use” of something means that the thing used “has been made the user's instrument.” Accordingly, the Court held that the word “use” does not require that the person using physical force act with the certainty that his or her use of physical force will cause harm. Rather, the Court held that the statute encompasses a situation where a person uses physical force with the understanding that the action is substantially likely to cause harm.

To illustrate why “reckless assault” falls under the definition of “use or attempted use of physical force,” Justice Kagan provided the following examples:

“If a person with soapy hands loses his grip on a plate, which then shatters and cuts his wife, the person has not 'use[d]' physical force in common parlance. But now suppose 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 have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife.”

Discussion of Leocal v. Ashcroft

The petitioners relied upon the Court's decision in Leocal v. Ashcroft to buttress his case that 18 U.S.C. 921(a)(33)(A) does not include “reckless assault.”

As we discuss in our full article [see article], Leocal dealt with 18 U.S.C. 16, which defines the term “crime of violence.” In the immigration context, this is important because section 101(a)(43)(F) of the Immigration and Nationality Act (INA) defines as an immigration aggravated felony a conviction for a crime of violence (as defined in 18 U.S.C. 16) for which the term of imprisonment is at least one year.

The language of 18 U.S.C. 16 is somewhat similar to the language of 18 U.S.C. 921(a)(33)(A). 18 U.S.C. 16(a) defines as a “crime of violence” “an offense that has as an element the use, attempted use, or threatened use of physical force…” 18 U.S.C. 16(b) defines as a crime of violence “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against a person or property of another may be used in the course of committing an offense”

In Leocal, the Court held that 18 U.S.C. 16 excludes conduct that is “merely accidental.” Furthermore, it held that 18 U.S.C. 16 does not include statutes that do not require a specific mens rea or that allow for a conviction for only negligence. Critically, however, the decision in Leocal distinguished between “accidental” and “reckless” conduct. Thus, Leocal did not reach the issue of whether a conviction in violation of a statute that requires only “reckless” conduct can be for a crime of violence under 18 U.S.C. 16.

In Voisine, the Court rejected the petitioner's argument that finding that 18 U.S.C. 921(a)(33)(A) includes a conviction for “reckless assault” would run contrary to the Court's holding in Leocal. Justice Kagan explained that the Court was not holding in Voisine that merely accidental conduct could fall under 18 U.S.C. 921(a)(33)(A) (see the plate example in the previous section of this article). Rather, Justice Kagan distinguished “reckless behavior,” which encompasses “acts undertaken with awareness of their substantial risk of causing injury,” from the merely accidental behavior that the petitioners appealed to as discussed in Leocal.

However, in footnote 4 of the Opinion of the Court in Voisine, Justice Kagan was careful to note that the Court was not reaching the question of whether 18 U.S.C. 16 includes reckless behavior. She noted that “[c]ourts have sometimes given two statutory definitions divergent readings in light of differences in their contexts and purposes.” As an example, Justice Kagan noted that a footnote in Castleman stated that, while the Court had interpreted force in 18 U.S.C. 921(a)(33)(A) to include “offensive touching,” federal appeals courts have usually interpreted force in the context of 18 U.S.C. 16 to reach only “violent force.” In Voisine, the Court finds neither that 18 U.S.C. 16 precludes or excludes reckless behavior. Rather, Justice Kagan stated: “All we can say here is that Leocal's exclusion of accidental conduct from a definition hinging on the “use” of force is in no way inconsistent with our inclusion of reckless conduct in a similarly worded provision.”

Conclusion: Voisine's Potential Effects on Immigration Law

18 U.S.C. 921(a)(33)(A), which defines “misdemeanor crime of domestic violence” in the federal context, is not cited in any of the provisions of the INA. In fact, even the deportability provision for a crime of domestic violence found in section 237(a)(2)(E)(i) relies upon the definition for a crime of violence found in 18 U.S.C. 16 rather than the definition found in 18 U.S.C. 921(a)(33)(A) [see article for discussion of section 237(a)(2)(E)(i)]. However, that fact by itself does not mean that Voisine will not end up having an effect on immigration law. The ultimate applicability of Voisine in the immigration context will likely depend on whether its reasoning is used to inform how administrative bodies and courts interpret the definition for “crime of violence” found in 18 U.S.C. 16.

Posting at SCOTUSblog, Rory Little wrote that “much of the Court's analysis seems applicable to the broader question of whether the federal definition of 'crime of violence' in 18 U.S.C. 16 — which uses the same phrase interpreted today — “embraces reckless conduct.”3 In the February 2007 edition (Vol 1, No. 2) of the Executive Office of Immigration Review's (EOIR's) “Immigration Law Advisor” [PDF version], an article stated that a series of Circuit Court decisions involving 18 U.S.C. 921(a)(33)(A) “are relevant to immigration proceedings” because the statute “employs language identical to 18 U.S.C. 16(a)” in defining the crimes as “ha[ving], as an element, the use or attempted use of physical force.”4 However, it is worth noting that this article discussed Circuit Court decisions that had found that a misdemeanor involving “offensive physical contact” is covered under 18 U.S.C. 931(a)(33)(A). The Board of Immigration Appeals (BIA) subsequently held in the Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010) [PDF version], that a “crime of violence” requires the use of “violent force” under 18 U.S.C. 16. In Castleman, the Supreme Court stated in footnote 4 that “[n]othing in today's opinion casts doubt on these holdings [including the Matter of Velasquez], because — as we explain — “domestic violence” encompasses a range of force broader than which constitutes 'violence'…”5

Because the Court in Voisine did not explicitly resolve the question left open by Leocal of whether “reckless conduct” is included in the definition of a “crime of violence” under 18 U.S.C. 16, it remains to be seen whether immigration adjudicators and federal courts will interpret the reasoning in Voisine as also applying to 18 U.S.C. 16. Because of the importance of 18 U.S.C. 16 in the immigration context with regard to immigration aggravated felonies and certain other deportability issues, any broadening of convictions included under 18 U.S.C. 16 would potentially be significant in the immigration context. If any courts or administrative bodies weigh in on the issue in a published decision, we will discuss it in an article on this site.

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  1. In dissent, Justice Clarence Thomas, joined by Justice Sonia Sotomayor, argued that “reckless assault” is not included in the definition of a “crime of domestic violence” found in 18 U.S.C. 921(a)(33)(A). Although worth noting, we will not discuss the reasoning of the dissent in this article. Justice Thomas also discussed his reservation about stripping persons of Second Amendment rights on the basis of a misdemeanor conviction (Justice Sotomayor did not join that portion of his dissent).
  2. There were two petitioners in Voisine.
  3. Little, Rory, “Opinion analysis: Federal “use of force” encompasses reckless domestic violence misdemeanor offenses,” SCOTUSblog (Jun. 27, 2016), available at http://www.scotusblog.com/2016/06/opinion-analysis-federal-use-of-force-encompasses-reckless-domestic-violence-misdemeanor-offenses/
  4. O'Connor, Stephen. “Misdemeanor Assault, Battery, and Harassment as Crimes of Violence-A Circuit Court Split.” EOIR Immigration Law Advisor 1 (Feb. 2007): 1-3., available at https://www.justice.gov/sites/default/files/eoir/legacy/2009/07/24/vol1no21fnl.pdf
  5. See 91 No. 14 Interpreter Releases 578