BORDEN v. UNITED STATES
No. 19-5410
SUPREME COURT OF THE UNITED STATES
June 10, 2021
593 U. S. ____ (2021)
OCTOBER TERM, 2020
(Slip Opinion)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BORDEN v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 19-5410. Argued November 3, 2020—Decided June 10, 2021
Petitioner Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, and the Government sought an enhanced sentence under ACCA. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. Borden argued that this offense is not a violent felony under ACCA‘s elements clause because a mental state of recklessness suffices for conviction. In his view, only purposeful or knowing conduct satisfies the clause‘s demand for the use of force “against the person of another.” The District Court disagreed and sentenced Borden as a career offender. The Sixth Circuit affirmed.
Held: The judgment is reversed, and the case is remanded.
769 Fed. Appx. 266, reversed and remanded.
JUSTICE KAGAN, joined by JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE GORSUCH, concluded that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under ACCA‘s elements clause. Pp. 4-23.
(a) That conclusion follows from the statutory text. The phrase “against another,” when modifying a volitional action like the “use of force,” demands that the perpetrator direct his force at another individual. Reckless conduct is not aimed in that prescribed manner. Leocal confirms that conclusion. When read against the words “use of force,” the Court explained, the “against” phrase—the definition‘s “critical aspect“—“suggests a higher degree of intent” than (at least) negligence. 543 U. S., at 9. That understanding of “against” contradicts the Government‘s view that the phrase here does not incorporate a mens rea requirement. Pp. 8-15.
(b) The ordinary meaning of the term “violent felony“—which the elements clause defines—also informs this construction. As Leocal explained, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.‘” 543 U. S., at 11. The Court said the same in Johnson v. United States, 559 U. S. 133, when construing language in ACCA‘s definition of “violent felony.” Id., at 139-140. With that focus in place, both decisions construed the definitions at issue to mark out a narrow “category of violent, active crimes.” Id., at 140; 543 U. S., at 11. And those crimes are best understood to involve a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk. P. 16.
(c) Classifying reckless crimes as “violent felonies” would also conflict with ACCA‘s purpose. Congress enacted ACCA to address “the special danger created when a particular type of offender—a violent criminal[]—possesses a gun.” Begay v. United States, 553 U. S. 137, 146. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes poses an uncommon danger of “us[ing a] gun deliberately to harm a victim.” Id., at 145. But that is not so of someone convicted of a crime, like a DUI offense, revealing only a “degree of callousness toward risk.” Id., at 146. However blameworthy, the reckless (or negligent) conduct involved in such a crime is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms.” Id., at 147. The Government‘s contrary view would label as ACCA predicates a range of common offenses—like reckless driving—that Congress did not mark “for heightened punishment.” 543 U. S., at 11. Pp. 17-20.
(d) The Government‘s main response is this Court‘s decision in Voisine, which interpreted the phrase “use of force” in defining a “misdemeanor crime of domestic violence” to cover reckless conduct. But that argument ignores the textual difference between the two statutes—the “against” clause. That phrase, as Leocal recognized, is not window dressing: It is the “critical” text for deciding the level of mens rea needed. 543 U. S., at 9. And as the Court has explained, “against the person of another,” when modifying the “use of physical force,” introduces that action‘s conscious object. So too, the Government‘s argument disregards how the context and purpose of the statute in Voisine diverge from those of
JUSTICE THOMAS concluded that ACCA‘s elements clause does not encompass Borden‘s conviction for reckless aggravated assault for the reasons stated in his dissenting opinion in Voisine, 579 U. S., at ___ (slip op., at 2). 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.” Id., at ___ (slip op., at 2, 16). Borden‘s reckless offense would fall within ACCA‘s residual clause had that provision not been declared unconstitutional in Johnson v. United States, 576 U. S. 591. Though Johnson was wrongly decided, it must be accepted in this case because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause. Pp. 1-5.
KAGAN, J., announced the judgment of the Court and delivered an opinion in which BREYER, SOTOMAYOR, and GORSUCH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., ALITO, and BARRETT, JJ., joined.
Opinion of KAGAN, J.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19-5410
CHARLES BORDEN, JR., PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 10, 2021]
JUSTICE KAGAN announced the judgment of the Court and delivered an opinion, in which JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE GORSUCH join.
The Armed Career Criminal Act (ACCA),
I
Congress enacted ACCA, as its full name makes clear, to address the “special danger” associated with “armed career criminals.” Begay v. United States, 553 U. S. 137, 146 (2008). A “small percentage of repeat offenders,” Congress found, commit a “large percentage” of all violent crimes. Taylor v. United States, 495 U. S. 575, 581 (1990) (quoting H. R. Rep. No. 98–1073, p. 1 (1984)). And when such a habitual violent offender carries a gun, he poses a serious risk of wreaking harm. As his prior convictions reveal, he is “the kind of person who,” when armed, “might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 146.
To allay that danger, ACCA enhances the sentence of anyone convicted under
To decide whether an offense satisfies the elements clause, courts use the categorical approach. See Stokeling v. United States, 586 U. S. ___ (2019) (slip op., at 13). Under that by-now-familiar method, applicable in several statutory contexts, the facts of a given case are irrelevant. The focus is instead on whether the elements of the statute of conviction meet the federal standard. Here, that means asking whether a state offense necessarily involves the defendant‘s “use, attempted use, or threatened use of physical force against the person of another.”
In this case, petitioner Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, and the Government sought an enhanced sentence under ACCA. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. The relevant statute defines that crime as “[r]ecklessly commit[ting] an assault” and either “caus[ing] serious bodily injury to another” or “us[ing] or display[ing] a deadly weapon.”
The circuit courts have indeed differed in addressing the question Borden raises. Some have held, as in this case, that a statute covering reckless conduct qualifies as a violent felony under ACCA.1 Others have concluded that only a statute confined to purposeful or knowing conduct can count as such a felony.2 The dispute turns on the definition
of “violent felony” in ACCA‘s elements clause—more specifically, on how different mental states map onto the clause‘s demand that an offense entail the “use ... of physical force against the person of another.”
II
Two pieces of background should ease the way. We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence. We then discuss two prior decisions of this Court addressing questions similar to the one here. In each, the Court considered how a certain mental state relates to a statutory definition marking out a category of crimes. One of those definitions is almost identical to the elements clause; the other appropriates only the clause‘s first half. The Court‘s analyses—about both the statute more like and the statute less like the elements clause—help frame today‘s decision.
Purpose and knowledge are the most culpable levels in the criminal law‘s mental-state “hierarchy.” United States v. Bailey, 444 U. S. 394, 404 (1980). A person acts purposefully when he “consciously desires” a particular result. Ibid. (internal quotation marks omitted); see ALI, Model Penal Code §2.02(2)(a) (1985). He acts knowingly when “he is aware that [a] result is practically certain to follow from his conduct,” whatever his affirmative desire. Bailey, 444 U. S., at 404 (internal quotation marks omitted); see Model Penal Code §2.02(2)(b)(ii). We have characterized the distinction between the two as “limited,” explaining that it “has not been considered important” for many crimes. Bailey, 444 U. S., at 404 (internal quotation marks omitted); see Model Penal Code, Comment 2, pp. 233-234 (calling the distinction “narrow” and often “inconsequential“). A person who injures another knowingly, even though not affirmatively wanting the result, still makes a deliberate choice with full awareness of consequent harm. See Bailey, 444 U. S., at 403-404.3
In Leocal v. Ashcroft, 543 U. S. 1 (2004), this Court held that offenses requiring only a negligent mens rea fall outside a statutory definition relevantly identical to ACCA‘s
elements clause. That definition, codified at
More recently, the Court held that reckless offenses fall within a different statutory definition—this one lacking the “against another” phrase Leocal deemed “critical.” Id., at 9. The law at issue in Voisine v. United States bars persons convicted
III
Today, we reach the question we reserved in both Leocal and Voisine. We must decide whether the elements clause‘s definition of “violent felony“—an offense requiring the “use of physical force against the person of another“—includes offenses criminalizing reckless conduct.4 We hold that it does not. The phrase “against another,” when modifying
the “use of force,” demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner. Our reading of the relevant text finds support in its context and purpose. 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—the kind of offenders who, when armed, could well “use [the] gun deliberately to harm a victim.” Begay, 553 U. S., at 145. And contra the Government (and dissent), Voisine says nothing to the contrary.
A
1
The parties here dispute the meaning of the phrase “use of physical force against the person of another.” They start in the same place, as they must: The “use of physical force,” as Voisine held, means the “volitional” or “active” employment of force. 579 U. S., at ___ (slip op., at 5-6). The fight begins with the word “against.” According to Borden, that word means “in opposition to,” and so “introduces the target of the preceding action.” Brief for Petitioner 19 (citing dictionaries). Examples are easy to muster: The general deployed his forces against a rival regiment, or the chess master played the Queen‘s Gambit against her opponent. The Government responds that “against” instead means “mak[ing] contact with,” and so introduces the mere recipient of force rather than its “intended target.”
Borden‘s view of “against,” as introducing the conscious object (not the mere recipient) of the force, is the right one given the rest of the elements clause. Dictionaries offer definitions of “against” consistent with both parties’ view: The word can mean either “[i]n opposition to” or “in contact with,” depending on the context. See, e.g., Webster‘s New International Dictionary 46 (2d ed. 1957) (giving both definitions). The critical context here is the language that “against another” modifies—the “use of physical force.” As just explained, “use of force” denotes volitional conduct. And the pairing of volitional action with the word “against” supports that word‘s oppositional, or targeted, definition. Look once more at the examples offered in the last paragraph. Borden‘s involve volitional conduct, by the general or chess master—essentially, each actor‘s “use of force.” There, the “against” phrase reveals at whom the conduct is consciously directed: the rival army or player. In contrast, the Government‘s examples do not involve volitional conduct, because “waves” and “baseballs” have no volition—and indeed, cannot naturally be said to “use force” at all. There, an “against” clause merely names a thing with which the subject came into contact.5 For our purpose, the more
apt examples are Borden‘s. As in those examples, ACCA‘s “against” phrase modifies volitional conduct (i.e., the use of force). So that phrase, too, refers to the conduct‘s conscious object. Indeed, the Court has made a similar point before, in an opinion by one of its great wordsmiths. When citizens “bear [a]rms against” some entity, Justice Scalia wrote, what follows the word “against” is “the target of the hostilities.” District of Columbia v. Heller, 554 U. S. 570, 586 (2008) (internal quotation marks omitted). That is just as true when someone, as in the elements clause, actively employs physical force.
On that understanding, the clause covers purposeful and knowing acts, but excludes reckless conduct (as, once again, the Government concedes). See Brief for United States 26; see supra, at 8-9. Purposeful conduct is obvious. Suppose a person drives his car straight at a reviled neighbor, desiring to hit him. The driver has, in the statute‘s words, “use[d] physical force against the person of another.”
By contrast, when the dictionaries discuss the “in opposition to” meaning, their examples turn volitional. See id., at 39 (“a successful campaign against the enemy“); American Heritage Dictionary, at 23 (a “struggle against fate“).
And he has ended up making contact with another person, as the Government emphasizes. See Brief for United States 23. But as the Government just as readily acknowledges, the reckless driver has not directed force at another: He has not trained his car at the pedestrian understanding he will run him over. See id., at 26. To the contrary, his fault is to pay insufficient attention to the potential application of force. Because that is so—because his conduct is not opposed to or directed at another—he does not come within the elements clause. He has not used force “against” another person in the targeted way that clause requires.
Leocal confirms our conclusion. Although the Court reserved the question we decide today, its reasoning all but precludes the Government‘s answer. Recall that Leocal held that negligent conduct falls outside a statutory definition much like the elements clause—one requiring the use of physical force “against the person or property of another.”
Even the single difference between the two statutes works against the Government: On its reading, §16(a)‘s two added words would turn that provision‘s “against” phrase into surplusage. The problem begins with the Govern- ment‘s attempt to give ACCA‘s own “against” phrase meaning. If not to incorporate an intent requirement, what function does that phrase serve? The Government‘s theory is that the phrase limits the elements clause to crimes involving force against people, as opposed to property. See id., at 23. That would give the clause some work to do in ACCA. But as noted earlier, the statute at issue in Leocal does not make that distinction: To repeat, §16(a)‘s “against” phrase refers to uses of force “against the person or property of another.”
2
The dissent offers up two “alternative“—really, mutually inconsistent—counter-arguments about the elements clause‘s text. In the first, the dissent claims to find a “term of art” in the clause—implicitly admitting that the language, as ordinarily understood, excludes reckless conduct. See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 92, n. 5 (1991) (noting that terms of art “depart from ordinary meaning“). Here, the dissent is all on its own: Neither the Government nor any of the many courts that have looked at this issue has advanced this term-of-art theory. In the second, the dissent goes more conventional, essentially repeating what the Government says, though with a distinctively question-begging quality. The term-of-art claim fails because the dissent‘s proposed term does not appear in—and indeed differs in critical ways from—the elements clause‘s text. The ordinary-meaning claim fails for reasons already familiar.
The dissent tries to sidestep the parties’ dispute over ordinary meaning by depicting the “against” phrase as a “term of art” having “zero to do with mens rea.” Post, at 5, 13 (opinion of KAVANAUGH, J.). In the dissent‘s words: “[W]e should not disregard the longstanding meaning of a criminal-law term of art—namely, offenses against the person—to smuggle” a mens rea requirement into the elements clause. Post, at 13. The dissent here relies on the appearance in many state criminal codes of headings and captions using the phrase “Offenses Against the Person.” Post, at 7; see, e.g.,
But note how this argument breaks down at its first move: The dissent offers up a “term of art” that is nowhere in the statute the dissent is supposed to be construing. The dissent does not pretend that the statutory phrase “use of physical force against the person of another” is a term of art; there is not, even in the dissent‘s imagining, any historical or distinctly legal meaning associated with that language. The dissent instead insists on reading into ACCA a term-of-art meaning for a phrase—“offenses against the person“—that makes no appearance there. That is no way to do statutory construction. The first precondition of any term-of-art reading is that the term be present in the disputed statute. Here, it is not. See Food Marketing Institute v. Argus Leader Media, 588 U. S. ___ (2019) (slip op., at 10) (similarly rejecting an attempt to “rearrang[e]” statutory text to create a “term of art” that “does not appear in the statute“).
And indeed, the dissent‘s extra-statutory term differs in a critical way from the actual language of the actual elements clause. As discussed above, the “against” phrase in that clause modifies the “use of physical force“—language this Court has held (and the dissent concedes) denotes volitional conduct. It is, as explained above, the pairing of volitional action with the word “against” that produces its oppositional or directed meaning—and excludes recklessness from the statute.
Finally, consider where the dissent looks for its supposed “offenses against the person” term of art. Not to any statute defining crimes or setting penalties (as ACCA does). Rather to headings and captions designed to cover a myriad of offenses, from homicide through defamation. They are umbrella terms used for cataloguing crimes—nothing more. That is why the dissent cites no judicial decision construing the term, much less saying anything about what it means for mens rea. The term cannot have a traditional or commonplace meaning in statutes specifying criminal conduct: It does not appear in them in the first place.
In a nutshell, the dissent‘s “term of art” theory goes as follows: Congress took an umbrella term (“offenses against the person“) used to organize a broad set of crimes (some not even conceivably ACCA predicates); plucked out three words (“against the person“); appended them to a statutory phrase (“use of physical force“) with which they are not often associated; put the combination into a substantive criminal statute—all to signify, contra Leocal, a term of art indifferent to mens rea. No wonder the dissent is the first to make the argument. See supra, at 12. It fails at every turn.
And so the dissent must proceed to its ordinary-meaning claim, reprising (if at higher volume) the Government‘s flawed argument about what the “against” phrase is most naturally read to encompass. Here, the dissent insists that because reckless force can make contact with a person—e.g., because a reckless driver can run over a pedestrian—the statute must encompass that conduct. See post, at 20–22. But that just assumes the conclusion: The very question here is whether the statutory language Congress enacted requires that force be directed at, rather than just happen to hit, an object. As to that issue, the dissent asserts that “[s]tate and federal reporters” are “replete with references to individuals recklessly using force against others.” Post, at 18-19, and n. 15 (quoting, for example, a decision saying that a “jury found that Arton did not intentionally or recklessly use excessive force against Cook“). But once again, the dissent is putting the rabbit in the hat. If Congress had used the word “recklessly” in the elements clause, we would have to interpret that clause to cover reckless offenses, even though the best reading of the clause without that word goes the other way. But Congress did not say “recklessly.” And we must construe the elements clause as it is—without first inserting the word that will (presto!) produce the dissent‘s reading.6
Were there any doubt about the elements clause‘s meaning, context and purpose would remove it.
The elements clause defines a “violent felony,” and that term‘s ordinary meaning informs our construction. Leocal well expressed this idea: In interpreting §16(a), “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.‘” 543 U. S., at 11. Quoting that statement, Johnson v. United States said the same thing when construing language (there, the term “physical force“) in ACCA‘s definition of “violent felony.” 559 U. S., at 140. “Ultimately, context determines meaning,” we wrote, and “[h]ere we are interpreting” a phrase “as used in defining” the term “violent felony.” Id., at 139-140. With that focus in place, both decisions construed the definitions at issue to mark out a narrow “category of violent, active crimes.” Id., at 140; 543 U. S., at 11. And those crimes are best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk. As Leocal explained: The term “crime of violence” in §16(a) “cannot be said naturally to include DUI offenses“—typically crimes of recklessness or negligence. Ibid. In a case much like this one, then-Judge Alito reiterated the point. He wrote that “[t]he quintessential violent crimes,” like murder or rape, “involve the intentional use” of force. Oyebanji v. Gonzales, 418 F. 3d 260, 264 (CA3 2005). By contrast, drunk driving and other crimes of recklessness, though “moral[ly] culpab[le],” do not fit within “the ordinary meaning of the term ‘violent’ crime.” Ibid.
Nor does the classification of reckless crimes as “violent felonies” comport with ACCA‘s purpose. Congress enacted ACCA, as noted earlier, to address “the special danger created when a particular type of offender—a violent criminal[]—possesses a gun.” Begay, 553 U. S., at 146; see supra, at 1–2. In keeping with that concern, ACCA sets out to identify, for sentencing purposes, the eponymous “armed career criminal“—the sort of offender who, when armed, “might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 145–146. The Act discharges that goal by looking to a person‘s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes, we have explained, poses an uncommon danger of “us[ing a] gun deliberately to harm a victim.” Id., at 145. But that is not so—as this Court has recognized—of someone convicted of a crime, like a DUI offense, revealing only a “degree of callousness toward risk.” Id., at 146. However blameworthy, the reckless (or negligent) conduct involved in such a crime is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms.” Id., at 147. So there is no reason, consistent with ACCA‘s focus on armed career criminals, for reckless offenses to precipitate the statute‘s enhanced sentences.7
Opinion of KAGAN,
Consider the kinds of crimes—the too-common stuff of ordinary offenders—that would trigger ACCA‘s 15-year minimums if we adopted the Government‘s (or dissent‘s) position. Many convictions for reckless crimes result from unsafe driving. Under the same Tennessee reckless-assault law applied to Borden, people have been convicted for injuries attributable to running a stop sign or veering onto the sidewalk. See State v. Graham, 2008 WL 199851, *2–*4 (Tenn. Crim. App., Jan. 24, 2008); State v. Gillon, 15 S. W. 3d 492, 496-497 (Tenn. Crim. App. 1997). In States with similar statutes requiring only a reckless mens rea, many individuals have been convicted for accidents resulting from text messaging or, of course, drunk driving. See, e.g., State v. Belleville, 166 N. H. 58, 63–64, 88 A. 3d 918, 922 (2014); State v. Reando, 313 S. W. 3d 734, 740 (Mo. App. 2010). In one case, even a police officer was convicted of a reckless assault for speeding to a crime scene without his siren on and hitting another patrol car. See Seaton v. State, 385 S. W. 3d 85, 88–89 (Tex. Crim. App. 2012). Or take some real-life non-driving examples. A shoplifter jumps off a mall‘s second floor balcony while fleeing security only to land on a customer. See Craver v. State, 2015 WL 3918057, *2 (Tex. App., June 25, 2015). An experienced skier heads straight down a steep, mogul-filled slope, “back on his skis, arms out to his sides, off-balance“—until he careens into someone else on the hill. People v. Hall, 999 P. 2d 207, 211 (Colo. 2000). Or a father takes his two-year-old go-karting without safety equipment, and injures her as he takes a sharp turn. See State v. Gimino, 2015 WL 13134204, *1 (Wis. App., Apr. 15, 2015).
Are these really ACCA predicates? All the defendants in the cases just described acted recklessly, taking substantial and unjustified risks. And all the defendants hurt other people, some seriously, along the way. But few would say their convictions were for “violent felonies.” See Leocal, 543 U. S., at 4 (holding that a “DUI causing serious bodily injury” is not a “crime of violence“). Few would think their offenses of a kind “typically committed by” armed career criminals. Begay, 553 U. S., at 146. And few would believe those defendants to pose an exceptional danger of doing harm were they to possess a gun. See id., at 145–146. Extending the elements clause to reckless offenses would thus do exactly what Leocal decried: “blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and [all] other crimes.” 543 U. S., at 11.8
C
To all of this, the Government offers one main response: this Court‘s decision in Voisine. (And again, the dissent reiterates the Government‘s arguments. See post, at 23-30.) As described earlier, Voisine held that the definition of “misdemeanor crime of domestic violence“—featuring the simple phrase “use of physical force“—includes reckless conduct.
Most important, the two statutes’ texts, when read in their entirety, refute the Government‘s (and the dissent‘s) position. The domestic violence definition in Voisine refers only to offenses involving the “use of physical force“; it lacks the ensuing phrase “against the person of another.” Voisine thus focused exclusively on the word “use“—as the Court noted, “[t]he only statutory language either party [thought] relevant.” 579 U. S., at __ (slip op., at 5). That word, the Court explained, requires a volitional act, but not a purposeful or knowing mens rea. See id., at __ (slip op., at 5-6). And so we would say again today. For the mens rea requirement we find in ACCA‘s elements clause does not come from the word “use.” It instead comes from modifying language that is missing in the domestic-violence provision (and missing, too, in the Government‘s argument): “against the person of another.” That phrase, as Leocal recognized, is not window dressing: It is the “critical” text for deciding the level of mens rea needed. 543 U. S., at 9. As we have explained, “against the person of another,” when modifying the “use of physical force,” introduces that action‘s conscious object. See supra, at 9-10. So it excludes conduct, like recklessness, that is not directed or targeted at another. Because Voisine construed a statutory provision without that intent-laden language, the decision cannot tell us what ACCA‘s elements clause requires. See Walker v. United States, 931 F. 3d 467, 469–470 (CA6 2019) (Kethledge, J., dissenting from denial of reh‘g en banc) (”Voisine tells us what ‘use’ means, not what ‘against the person of another’ means“). Thus does a “difference in text yield[] a difference in meaning.” Id., at 468.9
IV
Offenses with a mens rea of recklessness do not qualify as violent felonies under ACCA. They do not require, as ACCA does, the active employment of force against another person. And they are not the stuff of armed career criminals. The judgment below is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring in the judgment.
This case forces us to choose between aggravating a past error and committing a new one. I must choose the former. Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U. S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner‘s conviction for reckless aggravated assault, even though the consequences of today‘s judgment are at odds with the larger statutory scheme. The need to make this choice is yet another consequence of the Court‘s vagueness-doctrine cases like Johnson v. United States, 576 U. S. 591 (2015).
I
The Armed Career Criminal Act provides enhanced penalties for criminals convicted of certain firearms offenses who have at least “three previous convictions ... for a violent felony or a serious drug offense.”
The question presented here is whether the elements clause encompasses petitioner‘s conviction under Tennessee law for reckless aggravated assault. It does not. The plurality focuses on the latter part of the operative language: “against the person of another.” I rest my analysis instead on a separate phrase: “use of physical force.” As I have explained before, 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.” Voisine v. United States, 579 U. S. 686, __ (2016) (THOMAS, J., dissenting) (slip op., at 2, 16). The elements clause does not encompass petitioner‘s conviction because the statute under which he was convicted could be violated through mere recklessness.
But although the Court‘s conclusion that petitioner‘s conviction does not satisfy the elements clause is sound, the implication that he is something other than an “armed career criminal” is not. The state law here prohibits “[r]ecklessly ... [c]aus[ing] serious bodily injury to another.”
The problem is that Johnson held that the residual clause is “unconstitutionally vague” and thus unenforceable. 576 U. S., at 597. This left prosecutors and courts in a bind. Many offenders had committed violent felonies, but Johnson foreclosed invoking the residual clause to establish that fact. The workaround was to read the elements clause broadly. But the text of that clause cannot bear such a broad reading.
II
There is a straightforward solution to this dilemma—overrule Johnson.2 Johnson declared the residual clause not just too vague as applied in that case but also facially vague—meaning that the residual clause could never be employed consistent with the Constitution. That decision was wrong for at least two reasons.
First, to “pronounce that the statute is unconstitutional in all applications ... seems to me no more than an advisory opinion—which a federal court should never issue at all.” Chicago v. Morales, 527 U. S. 41, 77 (1999) (Scalia, J., dissenting). Courts have no authority to ““strik[e] down” statutory text. See United States v. Sineneng-Smith, 590 U. S. __ (2020) (THOMAS, J., concurring) (slip op., at 6); see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Nor may courts resolve “general questions of legality” by “provid[ing] relief
Second, even assuming that the petitioner‘s plea for facial relief was cognizable, Johnson deviated from the usual legal standard. To obtain facial relief, a plaintiff normally “must establish that no set of circumstances exists under which the Act would be valid.” E.g., United States v. Salerno, 481 U. S. 739, 745 (1987). That is because a facial challenge, if successful, has the same effect as “nullify[ing]” a statute. Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006). The petitioner in Johnson did not satisfy that standard. Indeed, the Johnson majority acknowledged that “there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another.” 576 U. S., at 602.
These errors show that this Court in Johnson not only misapplied the Due Process Clause but also exercised the legislative role. Legislatures alone have authority “to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Courts, by contrast, have authority to provide only those “remed[ies that are] tailored to redress the plaintiff‘s particular injury.” Gill v. Whitford, 585 U. S. __ (2018) (slip op., at 21). Simply put, where enforcement of a law would conflict with the Constitution, a court has authority under the Supremacy Clause to enjoin enforcement, but a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful. Johnson, however, conducted the “quintessentially legislative work” of altering the legal rules that would apply in cases where the residual clause could lawfully be enforced. See Planned Parenthood of Northern New Eng., 546 U. S., at 329–330.
III
I hesitate to give petitioner the benefit of Johnson, because his crime is a “violent felony” as Congress defined the term. Indeed, in other contexts, I have resisted exacerbating similar errors. See Pepper v. United States, 562 U. S. 476, 518-520 (2011) (dissenting opinion) (declining to apply this Court‘s erroneous holding that the Sentencing Guidelines are never mandatory). Yet I reluctantly conclude that I must accept Johnson in this case because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause. See Vance v. Ball State Univ., 570 U. S. 421, 450-451 (2013) (THOMAS, J., concurring). I therefore concur in the judgment.3
JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE, JUSTICE ALITO, and JUSTICE BARRETT join, dissenting.
In 1984, Congress passed and President Reagan signed the Armed Career Criminal Act, known as ACCA. That Act seeks to prevent individuals with a serious record of violent crimes from unlawfully possessing firearms and committing additional violent crimes. As amended in 1986, the Act generally mandates a minimum 15-year prison sentence for any felon who has amassed at least three prior convictions for a “violent felony” and then commits a fourth felony by unlawfully possessing firearms.
ACCA defines the predicate “violent felony” offenses to cover, among other things, an offense punishable by a prison term exceeding one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
ACCA does not ensnare low-level offenders or small-time criminals. Rather, as relevant here, ACCA applies only to individuals who have been previously convicted of three separate violent felonies committed on different occasions, and who then proceed to commit a fourth felony by unlawfully possessing firearms. Congress determined that those serial violent felons pose serious risks of harm to American communities and warrant a 15-year mandatory minimum sentence under ACCA.1
In this case, Charles Borden was convicted in 2018 for unlawfully possessing a firearm in violation of
Borden does not dispute that his 2002 and 2003 Tennessee felony convictions—which were for intentional or knowing aggravated assault—constituted violent felonies for purposes of ACCA. But he challenges the classification of his 2007 Tennessee felony conviction—which was for reckless aggravated assault. Borden argues that reckless felonies do not qualify as predicate offenses under ACCA. According to Borden, a crime committed recklessly, such as reckless assault or reckless homicide, does not entail the “use of physical force against the person of another.” Instead, Borden contends, only intentional or knowing felonies satisfy that statutory definition.
Most States criminalize reckless assault and reckless homicide. And the Model Penal Code and most States provide that recklessness as to the consequences of
To put Borden‘s argument in real-world terms, suppose that an individual drives a car 80 miles per hour through a neighborhood, runs over a child, and paralyzes her. He did not intend to run over and injure the child. He did not know to a practical certainty that he would run over and injure the child. But he consciously disregarded a substantial and unjustifiable risk that he would harm another person, and he is later convicted in state court of reckless assault. Or suppose that an individual is in a dispute with someone in the neighborhood and begins firing gunshots at the neighbor‘s house to scare him. One shot goes through the window and hits the neighbor, killing him. The shooter may not have intended to kill the neighbor or known to a practical certainty that he would do so. But again, he consciously disregarded a substantial and unjustifiable risk that he would harm someone, and he is later convicted in state court of reckless homicide.
Surprisingly, the Court today holds that those kinds of reckless offenses such as reckless assault and reckless homicide do not qualify as ACCA predicates under the use-of-force clause. The plurality does not dispute that those offenses involve the “use of physical force,” but concludes that those offenses do not involve the “use of physical force against the person of another.” The plurality reaches that rather mystifying conclusion even though someone who acts recklessly, as those examples show, has made a “deliberate decision to endanger another,” Voisine v. United States, 579 U. S. 686, __ (2016) (slip op., at 7), and even though an individual who commits a reckless assault or a reckless homicide generally inflicts injury or death on another person. The plurality reaches that conclusion even though most States (both as of 1986 and today) criminalize reckless assault and reckless homicide as offenses against the person, and even though Congress enacted ACCA‘s use-of-force clause in 1986 to cover the prototypical violent crimes, such as assault and homicide, that can be committed with a mens rea of recklessness. And the plurality reaches that conclusion even though the Court concluded just five years ago (when interpreting a similarly worded domestic violence statute) that reckless offenses such as reckless assault and reckless homicide do entail the use of physical force against another person—there, “against a domestic relation” or “victim.” See id., at __ (slip op., at 12);
In my view, the Court‘s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA‘s text, and waves away the Court‘s own recent precedent. The Court‘s decision overrides Congress‘s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.3
The Court holds that the phrase “use of physical force against the person of another” in ACCA‘s violent felony definition applies only to crimes that entail an intentional or knowing use of force against another person, not to crimes that entail a reckless use of force against another person. In reaching that conclusion, the plurality does not dispute that the statutory phrase “use of physical force” on its own would encompass reckless offenses such as reckless assault and reckless homicide. See ante, at 6–7; see also Voisine v. United States, 579 U. S. 686 (2016). But the plurality seizes on the additional phrase “against the person of another.” According to the plurality, the combined statutory phrase “use of physical force against the person of another” excludes reckless offenses such as reckless assault and reckless homicide.
As a matter of textual interpretation, that analysis is seriously flawed for two independent reasons, either of which suffices to defeat the plurality‘s conclusion. First, the phrase “against the person of another” in criminal statutes like ACCA has zero to do with mens rea. That phrase instead reflects a centuries-old term of art in the criminal law that distinguishes offenses against the person from offenses against property. Second, even if the phrase “against the person of another” did not reflect a longstanding term of art, the ordinary meaning of the statutory phrase “use of physical force against the person of another“—just like the phrase “use of physical force“—encompasses reckless offenses such as reckless assault and reckless homicide.
A
First, and most fundamentally, the phrase “against the person of another” in ACCA has zero to do with the required mens rea for predicate violent felonies. That phrase simply incorporates established nomenclature for classifying crimes and reflects a longstanding criminal-law term of art that distinguishes offenses against the person from offenses against property. As the Government explains, that phrase simply “limits the scope” of the use-of-force clause to “crimes involving force applied to another person, thereby excluding many property crimes, like arson.” Brief for United States 23.
When Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice,” we generally assume that Congress “knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” Morissette v. United States, 342 U. S. 246, 263 (1952); see also Air Wisconsin Airlines Corp. v. Hoeper, 571 U. S. 237, 248 (2014); Sekhar v. United States, 570 U. S. 729, 733 (2013); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 73-77, 305 (2012).
So it is here. For centuries, criminal offenses have typically been broken down into categories—including, most prominently, offenses against the person and offenses against property.
An offense against the person is often defined as a “crime against the body of another human being.” Black‘s Law Dictionary 1302 (11th ed. 2019) (“offense against the person“). The object of the offense is a person. Those offenses include, for example, assault, homicide, rape, and robbery.
An offense against property is often defined as a “crime against another‘s personal property.” Ibid. (“offense against property“). The object of the offense is property. Those offenses include, for example, burglary, arson, extortion, fraud, and destruction of property.
That nomenclature has a long historical pedigree originating in the common law. Blackstone, for example, sets forth various categories of “Public Wrongs,” which include “Offences against the Persons of Individuals” and “Offences against Private Property.” 4 Commentaries on the Laws of England, chs. 15, 17 (1769) (emphasis in original); see also H. Stephen, Summary of the Criminal Law (1834) (setting forth categories of criminal offenses including “Offences against the Person” and “Larceny and Other Offences against Property“); W. Auckland, Principles of Penal Law (2d ed. 1771) (setting forth categories of criminal offenses including “[o]ther Crimes relative to the Persons of Individuals” and “Crimes relative to Property“).
Those classifications remain prevalent today. Like Blackstone, most state criminal codes categorize criminal offenses and employ the terminology of offenses against the person and offenses against property.4
That was also true back in 1986 when Congress amended ACCA to include the use-of-force clause. Tennessee‘s criminal code illustrates the point. As of 1986, criminal offenses under Tennessee law fell under one of several chapter headings, including “Offenses Against the Person” and “Offenses Against Property,” among others. See Tenn. Code. Ann., Tit. 39, chs. 2, 3 (1982). At least 32 other state criminal
The Model Penal Code, which was adopted in 1962, likewise uses that nomenclature. The Code identifies two broad categories of crimes as “Offenses Involving Danger to the Person” and “Offenses Against Property.” ALI, Model Penal Code, pt. II (1980).
Leading treatises on criminal law similarly group most offenses into those two broad categories: “Offenses Against the Person” and “Offenses Against Property.” 2-3 W. LaFave, Substantive Criminal Law, pts. III, IV (3d ed. 2018); 2 C. Torcia, Wharton‘s Criminal Law, pt. II (15th ed. 1994); 3 id., pt. V (1995); see also 2 W. LaFave & A. Scott, Substantive Criminal Law, chs. 7, 8 (1986) (“Crimes Against the Person” and “Crimes Relating to Property“); 2 Torcia, Wharton‘s Criminal Law, pt. II (14th ed. 1979) (“Offenses Against the Person“); 3 id., pt. V (1980) (“Offenses Against Property“).
As those many examples show, the phrase “offenses against the person” may be worded in slightly different ways, but each variation serves to distinguish offenses against the person from other kinds of offenses, including offenses against property. Cf. Black‘s Law Dictionary, at 1302 (cross-referencing definition of “offense against the person” with “crimes against persons“).
In 1986, Congress amended ACCA to cover violent felonies. Not surprisingly, ACCA‘s definition of “violent felony” tracks that historically rooted and still common nomenclature. The definition provides in relevant part:
“[T]he term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year that—
“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
The first clause of the violent felony definition (the use-of-force clause) encompasses offenses involving force against the person—and thus necessarily includes assault, homicide, rape, and robbery.6 The second
This Court‘s precedents have drawn that same distinction when analyzing ACCA‘s violent felony definition. In Begay v. United States, for example, the Court stated that violent felonies under ACCA “include both crimes against the person (clause (i)) and certain physically risky crimes against property (clause (ii)).” 553 U. S. 137, 144 (2008).
The statutory history further illustrates the distinction. When originally enacted in 1984, ACCA covered only robbery (an offense against the person) and burglary (an offense against property).
In short, the phrase “against the person of another” in ACCA specifies the category of crimes to which the use-of-force clause applies and limits the reach of the clause by excluding other categories of crimes—in particular, crimes against property.
That understanding of the phrase “against the person of another” also helps to make sense of other, similarly worded statutory definitions. Take
Finally, state practice confirms that the phrase “against the person of another” in ACCA reflects a longstanding term of art and is not an oblique and novel way of excluding reckless offenses. As of 1986, when Congress amended ACCA to include the use-of-force clause, 28 States had reckless assault statutes, and more than 30 States had statutes that covered reckless homicide. See Brief for United States 19-21, and nn. 4-7. Most of those States classified those crimes as offenses against the person, see n. 5, supra—even though those crimes only required a mens rea of recklessness.
Congress legislated against the backdrop of those state criminal laws. It strains credulity to say that in ACCA, Congress both (i) mirrored the traditional “against the person” terminology from those state criminal codes that included reckless assault and reckless homicide, but (ii) nonetheless silently intended that common and traditional language to take on a novel and obscure meaning that would exclude reckless assault and reckless homicide. As the Court has stated before, we “should not lightly conclude that Congress enacted a self-defeating statute.” Quarles v. United States, 587 U. S. 610, 617 (2019) (slip op., at 8); see also Stokeling v. United States, 586 U. S. 73, 83 (2019) (slip op., at 8). If Congress in 1986 wanted to exclude from ACCA‘s scope all of those state criminal laws covering reckless crimes against the person—including reckless assaults and reckless homicides—Congress easily could have said (and surely would have said) that only “intentional or knowing” uses of force were covered. It did not. And we should not disregard the longstanding meaning of a criminal-law term of art—namely, offenses against the person—to smuggle into ACCA a new and unusual mens rea requirement that Congress did not see fit to include.
The plurality claims that the exact words “offense against the person” or “crime against the person” do not appear in ACCA‘s use-of-force clause. Ante, at 13-15. But in fact, Congress used the phrase “against the person of another” in the use-of-force clause to describe the “crime[s]” that are covered by ACCA.
To sum up: The plurality does not dispute that reckless offenses entail the “use of physical force.” The plurality argues, however, that reckless offenses do not entail the “use of physical force against the person of another.” But the phrase “against the person of another” reflects longstanding criminal-law nomenclature—a term of art that specifies the category of covered predicate offenses that involve the use of force, such as assault, homicide, rape, and robbery. That language has zero to do with the mens rea required for predicate offenses under ACCA. That conclusion should end this case given that the plurality acknowledges that the phrase
B
Second, in the alternative, even if we divorce the phrase “against the person of another” from its term-of-art usage in criminal law, as the plurality mistakenly does, that phrase as a matter of ordinary meaning still does not speak to mens rea and cannot reasonably be read to exclude reckless offenses such as reckless assault and reckless homicide. Instead, as the Court recognized in Voisine v. United States in interpreting a “similarly worded” statute covering the “use of physical force,” ACCA‘s use-of-force clause is “indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness” with respect to the consequences of using force. 579 U. S. 686, 693, n. 4 (2016) (slip op., at 6, 8, n. 4).
To understand the ordinary meaning of the phrase “use of physical force against the person of another,” first consider that the criminal law ordinarily imposes criminal liability when the defendant acts with intent, knowledge, or recklessness as to the consequences of his actions. A person acts intentionally (or said otherwise, purposefully) with respect to the harmful consequences of his actions if he has those consequences as his “conscious object.” Model Penal Code §2.02(2)(a)(i) (1985). A person acts knowingly with respect to the harmful consequences of his actions if he is “aware that it is practically certain that his conduct will cause” those consequences. Id., §2.02(2)(b)(ii). And a person acts recklessly “when he consciously disregards a substantial and unjustifiable risk” that his conduct will result in harm to another person. Id., §2.02(2)(c).
The line between knowing and reckless crimes is thin. The difference between (i) conduct with knowledge as to the consequences on the one hand and (ii) conduct with recklessness as to the consequences on the other hand is that the risk of harm associated with knowledge is somewhat higher than the risk of harm associated with recklessness. In particular, to act with knowledge that harm will occur, a defendant must know that harm is “practically certain” to occur. Id., §2.02(2)(b)(ii). To act with recklessness as to whether harm will occur, a defendant need not know with practical certainty that harm will occur—but he still must know that he is disregarding a substantial and unjustifiable risk that harm will occur. Id., §2.02(2)(c). In other words, he must make a “deliberate decision to endanger another.” Voisine, 579 U. S., at 694 (slip op., at 7). As has long been recognized, the difference between knowledge and recklessness as to the consequences of one‘s actions is one of degree, not of kind.9
Reckless conduct is not benign. Reckless conduct “involves conscious risk creation,” Model Penal Code §2.02, Comment 3, p. 236 (1985)—a “deliberate decision to endanger another,” Voisine, 579 U. S., at 694 (slip op., at 7). And a person who engages in, for example, reckless assault or reckless homicide generally injures or kills another person.10
Recognizing that basic principle, the Model Penal Code establishes recklessness as the default minimum mens rea for criminal offenses when a mental state is not specified. §2.02, Comment 5, at 244. If a more culpable mental state, such as intent or knowledge, is required for a criminal offense, “it is conventional to be explicit.” Ibid. Keep that last sentence in mind when we return to ACCA‘s text.
Like the Model Penal Code, many States establish recklessness as a default minimum mens rea for criminal offenses.11 And like the Model Penal Code, most States’ criminal laws in 1986 provided (and today still provide) that recklessness as to the consequences of a defendant‘s conduct often suffices to impose criminal liability, including as to assault and homicide. See, e.g., Brief for United States 19-20, and nn. 4-5 (state reckless assault statutes); 2 LaFave, Substantive Criminal Law §15.4(a), and p. 712, n. 19 (2018) (manslaughter). As of 1986, when Congress amended ACCA to include the use-of-force clause, 28 States had reckless assault statutes, and more than 30 States had statutes that covered some form of reckless homicide. See Brief for United States 19-21, and nn. 4-7.
Importantly, nothing in ACCA‘s text or context (or its history, for that matter) states or even hints that Congress sought to exclude reckless offenses against the person, such as reckless assault and reckless homicide, from the use-of-force clause. Recall that the Model Penal Code says that “it is conventional to be explicit” when a legislature wants to exclude reckless offenses from criminal liability. §2.02, Comment 5, at 244. ACCA contains no such explicit language excluding reckless offenses. The text of ACCA should not be read to silently exclude reckless offenses such as reckless assault and reckless homicide.12
Consistent with those background principles of mens rea, the ordinary meaning of the phrase “use of physical force against the person of another” in ACCA encompasses reckless offenses such as reckless assault or reckless homicide.
The plurality today acknowledges that the phrase “use of physical force” would include reckless offenses. But according to the plurality, ACCA‘s phrase “use of physical force against the person of another” does not include reckless offenses. To distinguish the two, the plurality emphasizes the word “against.” As the plurality acknowledges, however, the word “against” is often defined to mean “‘mak[ing] contact with.‘” Ante, at 8. That is the logical meaning of “against” in the context of ACCA‘s use-of-force clause, and that meaning would encompass reckless assaults and reckless homicides.
The plurality disagrees, and stresses that the word “against” in isolation can mean either “in contact with” or “‘[i]n opposition to,‘” depending on context. Ante, at 9. The plurality contends that the meaning of “against” in the context of the phrase “use of physical force against the person of another” carries the word‘s “oppositional” definition and thus excludes reckless offenses.13
The plurality chooses the “in opposition to” definition because it says, in essence, that it would be incoherent or gibberish to say that someone recklessly used force against another person. But the plurality is wrong about that. As a matter of ordinary meaning, it is perfectly natural to say that someone recklessly used force against another person.14 State and federal reporters, for example, are replete with references to individuals recklessly using force against others. See, e.g., Neil v. Warden, Noble Correctional Inst., 2020 WL 489326, *30 (SD Ohio, Jan. 30, 2020) (“The indictments also charged that in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, appellant recklessly used or threatened the immediate use of force against another“).15
Most tellingly, if one wants to find a really good example of the ordinary meaning, look no further than the Court‘s opinion in Voisine five years ago. There, the Court stated twice in its opinion—in the first and last paragraphs—that the use-of-force statute at issue there covered offenses where an individual recklessly used physical force “against a domestic relation.” 579 U. S., at 689 (slip op., at 12); see also id., at 701 (slip op., at 1). The Voisine Court found it entirely ordinary to employ the phrase “‘use . . . of physical force’ against a domestic relation“—in other words, use of physical force against another person—to describe reckless assaults. Id., at 701 (slip op., at 12).
If the plurality today were correct that a use of force “against” another can only be intentional or knowing, then the Court in Voisine surely would not have adopted the exact formulation of recklessly using force “against a domestic relation.” Res ipsa loquitur.
The plurality today simply shrugs off the language from Voisine. Ante, at 22-23, n. 9. But the plurality cannot rewrite ordinary meaning. And as Voisine‘s choice of language demonstrates, the ordinary meaning of the phrase “use of physical force against the person of another,” such as against a domestic relation, easily encompasses reckless offenses, including reckless assault and reckless homicide. (More on Voisine later.)
More generally, the plurality‘s linguistic efforts to seize on the word “against” to scale back ACCA do not make a lot of sense. Consider two points. First, a use of force must be against someone or something. And second, as Voisine stated and Borden acknowledges, you can recklessly use force. Put those two points together and the resulting conclusion is irrefutable: One can recklessly use force against the person of another (or against the property of another). As relevant here, the ordinary meaning of the phrase “use of physical force against the person of another” thus covers reckless offenses such as reckless assault and reckless homicide.
To appreciate the ordinary meaning of the phrase “use of physical force against the person of another,” look also at some of the cases cited by the plurality today. See ante, at 18. In People v. Hall, a highly experienced skier careened down a slope at dangerously high speeds, out of control, until he crashed into an unsuspecting skier. See 999 P. 2d 207 (Colo. 2000). The “force of the impact” when Hall collided with the victim was so great that it “fractured the thickest part of the victim‘s skull” and caused traumatic brain injuries, resulting in the victim‘s death. Id., at 211.
The fleeing shoplifter in Craver v. State leapt over the second-floor railing in a mall during normal business hours, while people were milling about in the area below. See 2015 WL 3918057, *1 (Tex. Crim. App., June 25, 2015). The shoplifter landed directly on top of an elderly woman, breaking her back. Id., at *2.
And in Seaton v. State, a police officer blew through a red light without braking or activating his lights or sirens, collided with another car at a speed of about 100 miles per hour, ricocheted into another person who was standing nearby, and killed that bystander. See 385 S. W. 3d 85, 88 (Tex. Crim. App., 2012).
All of those offenses entail the use of physical force against another person. True, the skier who crashed into an innocent bystander on the slopes did not intend or know with practical certainty that he would hit that bystander with such force that it would crack his skull. The shoplifter who vaulted himself over a second-floor railing may not have intended or known with practical certainty that he would slam into an unsuspecting shopper below. And the officer who drove through the red light at 100 miles per hour may not have intended or known with practical certainty that he would lose control and kill another person.
But the defendants in those cases did not merely “pay insufficient attention to the potential application of force.” Ante, at 11. Instead, each of those defendants acted recklessly and thus made “a deliberate decision to endanger another.” Voisine, 579 U. S., at 694 (slip op., at 7). Each of them consciously disregarded the obvious dangers that their volitional conduct—high-speed skiing, jumping off a second-floor railing, or speeding at 100 miles per hour in a car without lights or sirens—posed to anyone unfortunate enough to cross their paths. See id., at 692 (slip op., at 6). Each of those defendants knew that the people around them would have to be really lucky to get out of the way. And in ordinary parlance, each of those defendants used force against their victims when they made physical contact with those victims as a direct result of their reckless behavior—that is, of their deliberate decision to endanger another.
* * *
II
All of that is more than enough to resolve this case. But in addition to all of that, the Court‘s recent precedent in Voisine v. United States convincingly demonstrates that ACCA covers reckless offenses such as reckless assault and reckless homicide.
As noted above, the Court in Voisine concluded that the phrase “use of physical force” in a similarly worded statutory provision encompasses reckless offenses, as well as intentional or knowing offenses. 579 U.S. 686 (2016). Voisine established two key points. First, Voisine confirmed that reckless offenses such as reckless assault and reckless homicide entail the use of physical force against another person—there, against a domestic relation or victim. Second, contrary to the plurality‘s analysis today, Voisine explained that the Court‘s prior decision in Leocal v. Ashcroft, 543 U. S. 1 (2004), meant simply that negligent offenses do not involve the use of physical force for purposes of statutes such as ACCA.
First, Voisine confirmed that reckless offenses involve the use of physical force against another person—in that case, against a “domestic relation” or “victim.” In Voisine, the Court addressed a subsection of
The question in Voisine was whether that statutory definition “applies to reckless assaults, as it does to knowing or intentional ones.” Id., at 691 (slip op., at 4).
The Court in Voisine began by describing bedrock criminal law principles. Pointing to the Model Penal Code, the Court explained that a person acts recklessly with regard to the consequences of his actions if he “‘consciously disregard[s]’ a substantial risk that the conduct will cause harm to another.” Ibid. (quoting Model Penal Code §2.02(2)(c)). The Court stated that even though such a person does not intend or know to a practical certainty that harm will result, he nonetheless makes “a deliberate decision to endanger another.” Voisine, 579 U. S., at 694 (slip op., at 7). And the Court noted that recklessness as to the consequences of one‘s actions ordinarily suffices for criminal liability.
The Court then concluded that the phrase “use of physical force” in
In Voisine, to have committed a qualifying misdemeanor crime of domestic violence, the defendant must have used force against a “victim,” to use the statute‘s term, often against the defendant‘s spouse or partner. As the Voisine Court stated, reckless assault in the domestic violence context entails “the ‘use ... of physical force’ against a domestic relation” even though a defendant who acts recklessly does not intend or know to a practical certainty that his use of force will harm that domestic relation. Id., at 701 (slip op., at 12) (emphasis added). In other words, the Court agreed that a reckless assault entails the use of physical force against the person of another (there, “against a domestic relation” or “victim“).
Voisine‘s conclusion applies equally to ACCA‘s violent felony definition. The two definitions share critical features. Both definitions apply in the context of
The only distinction between those two definitions is that ACCA employs the phrase “use of physical force against the person of another” while
Contrary to what the plurality today seems to think, Voisine did not create some imaginary world where one could recklessly use force, but one could not recklessly use force against another person. On the contrary, Voisine explicitly recognized that one could recklessly use force “against a domestic relation“—that is, against another person.18
Voisine alone should have made this case very straightforward. In the wake of Voisine, most Courts of Appeals to consider the issue certainly thought it was. They responded to Voisine by applying its analysis to ACCA‘s violent felony definition.19 As Chief Judge Sutton cogently explained in relying on Voisine to interpret the phrase “use of physical force against the person of another“: ”Voisine‘s key insight is that the word ‘use’ refers to ‘the act of employing something’ and does not require a purposeful or knowing state of mind. That insight does not change if a statute says that the ‘use of physical force’ must be ‘against’ a person, property, or for that matter anything else. . . . Sometimes the simplest explanation is the best explanation.” United States v. Verwiebe, 874 F. 3d 258, 262-263 (CA6 2017) (citations omitted).
But today, the plurality tries to disappear Voisine‘s use of the phrase “against a domestic relation” from the U. S. Reports. Seeking to erase that phrase from Voisine with a footnoted ”mea culpa,” the plurality today concludes that the additional phrase “against the person of another” in ACCA means that ACCA‘s use-of-force clause does not cover reckless crimes, even though the statute at issue in Voisine did. Ante, at 20-23, and n. 9. The plurality‘s attempt to rewrite Voisine does not persuade. As noted above, Voisine held that reckless offenses such as reckless assault and reckless homicide entail the “use of physical force,” and the Voisine opinion further explained that those reckless offenses entail the use of physical force against the person of another—namely, “against a domestic relation” or “victim.”
Second, as Voisine fully explained, the Court‘s prior decision in Leocal concluded only that negligent offenses do not involve the use of physical force for purposes of ACCA. Leocal, 543 U. S., at 9, 13; see also Voisine, 579 U. S., at 693 (slip op., at 7). Leocal addressed whether a driving-under-the-influence offense that required only a negligent mental state fell within
The Leocal Court took care, however, to reserve the question we confront today—namely, whether offenses requiring “proof of the reckless use of force against the person or property of another” would qualify under a statutory definition like
As Voisine later explained, the critical mens rea dividing line in statutes requiring the use of force is the line “between accidents and recklessness“—a distinction that ”Leocal itself recognized.” 579 U. S., at 693 (slip op., at 7). Accidents or negligence do not involve the use of force because such conduct is not volitional. Ibid. But reckless behavior, like throwing a plate against a wall or firing a gun at a house, is different and does involve the use of force. After all, the “harm such conduct causes is the result of a deliberate decision to endanger another—no more an ‘accident’ than if the ‘substantial risk’ were ‘practically certain.‘” Ibid.
As a matter of history, theory, and practice in criminal law, the line drawn by Voisine and Leocal between recklessness and negligence is much more salient than the line drawn by the plurality today between knowledge and recklessness. An individual who consciously disregards a substantial risk of a harmful result has a culpable state of mind and has made a deliberate decision to endanger another, even if it is not practically certain the harmful result will occur. And for that reason, to reiterate, the Model Penal Code and most States draw the ordinary line of criminal culpability between recklessness and negligence, not between knowledge and recklessness.
Rather than acknowledge Leocal‘s narrow holding on negligence as distinct from recklessness, knowledge, and intent, the plurality today focuses on Leocal‘s observation that the “critical aspect” of
But Leocal never focused on the term “against the person or property of another” in isolation. It focused on the full phrase “use of physical force against the person or property of another.” 543 U. S., at 9. And Leocal said that negligence does not entail such a use of force.
Indeed, the Court in Voisine already made that same point about Leocal. Voisine recognized that the statute in Leocal, like the “similarly worded” statute in Voisine, “hing[ed] on the ‘use’ of force.” 579 U. S., at 693, n. 4 (slip op., at 8, n. 4). The Voisine Court distinguished Leocal solely on the ground that an accident or negligence cannot be considered an “active employment” of force, whereas reckless assault does entail an active employment of force. 579 U. S., at 694 (slip op., at 7). As Chief Judge Sutton correctly
Put simply, if the phrase “against the person . . . of another” from the statute in Leocal were actually the “Rosetta Stone” of mens rea as the plurality today seems to think, Voisine would have mentioned that point. Verwiebe, 874 F. 3d, at 263. But that distinction is nowhere to be found in Voisine. For mens rea purposes, Voisine treated a statute that covered the “use of physical force” the exact same as a statute that covered the “use of physical force against the person of another.”
The plurality‘s double-barreled effort today to (i) erase Voisine‘s use of the phrase “against a domestic relation” and also (ii) sweep away Voisine‘s analysis of Leocal is something to behold. In my view, the plurality‘s opinion today cannot be squared with what the Court stated just five years ago in Voisine.
If this Court were to faithfully apply Voisine‘s language and reasoning to this case, as almost all courts of appeals to consider the issue have done in the wake of Voisine, that would be the end of the matter. The plurality‘s decision to rewrite Voisine today is not convincing, especially when considered together with the other textual arguments in favor of the Government‘s position here.20
III
To support its analysis, the plurality also relies on ACCA‘s “context and purpose.” Ante, at 16. That argument is likewise unpersuasive, in my respectful view.
Start with context. The plurality focuses on the supposed ordinary meaning of the term “violent felony” in isolation. The plurality maintains that ACCA‘s definition of violent felony should be construed to “mark out a narrow category of violent, active crimes.”
To begin with, when a statute explicitly defines a term, we generally follow that statutory definition. See Digital Realty Trust, Inc. v. Somers, 583 U. S. 149, 158 (2018) (slip op., at 9). In ACCA, Congress defined the term “violent felony” to include offenses that involve the “use of physical force against the person of another.” And as explained above, that definition encompasses reckless offenses like reckless assault and reckless homicide.
Moreover, reckless assaults and reckless homicides are violent crimes, as a matter of ordinary meaning. Recklessly firing a weapon and injuring an unsuspecting victim is violent. Recklessly throwing bricks off an overpass and killing a driver passing underneath is violent. Recklessly driving 80 miles per hour through a neighborhood and killing a child is violent.
The plurality also refers to the phrase “armed career criminal” (the statutory title) in a way that seems to suggest that an ACCA defendant‘s predicate violent felonies must be committed with firearms. See ante, at 17, 23. That is incorrect. The three predicate felonies must be
The plurality‘s related reliance on ACCA‘s supposed purpose is similarly misplaced. The plurality speculates that Congress designed ACCA to cover those offenders “who, when armed, ‘might deliberately point the gun and pull the trigger.‘” Ante, at 17 (quoting Begay v. United States, 553 U. S. 137, 145-146 (2008)). But even assuming that was Congress‘s only goal in enacting ACCA (recall that ACCA also covers those whose predicate offenses were serious drug crimes), the statute expressly defines the offenders who fit into that dangerous category—namely, those who have been convicted of three violent felonies and then unlawfully possess firearms. Congress‘s goal of preventing further violence by recidivist violent felons does not support drawing a distinction between reckless assault and knowing assault, or between reckless homicide and knowing homicide.
The plurality also says that Congress did not seek to ensnare low-level or ordinary criminals. True. But again, 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. Such repeated violent conduct is not the stuff of low-level or ordinary criminals. Even assuming the plurality‘s premise that a driver who recklessly kills a pedestrian or a parent who recklessly inflicts abuse on her children is not dangerous the first time around—a doubtful premise that would be news to many victims—that assumption surely falls apart after the second and third reckless felony convictions. At that point, the individual has demonstrated a consistent willingness to deliberately engage in dangerous behavior that poses an obvious risk of physical harm to others. And someone who has been convicted of three reckless assaults or homicides committed on different occasions—and then unlawfully possesses firearms—is not a low-level or ordinary criminal, but is someone who Congress might have reasonably feared would commit further violence.
The plurality expresses particular concern over the notion that interpreting ACCA to cover reckless offenses would sweep in ordinary reckless driving offenses, like “running a stop sign or veering onto the sidewalk.” Ante, at 18. But the plurality does not cite a single case where a reckless driving offense not involving injury to others has been counted as an ACCA predicate. That is not surprising because routine reckless driving statutes often do not require injury to others and thus would not qualify as a “use of physical force” under ACCA. It is only when the reckless driver causes harm to another and is convicted of an offense akin to reckless assault or reckless homicide that the offense typically would come within ACCA.
Notably, in citing what it implies are benign reckless driving offenses, the plurality fails to mention that the driver who blew through a stop sign in State v. Gillon collided with another vehicle, killing one person and injuring two others. See 15 S. W. 3d 492, 496-497 (Tenn. Crim. App. 1997). And the driver who erratically veered onto a sidewalk in State v. Graham drove “straight toward” another vehicle and crashed into it, leaving the driver of the vehicle “lying face first outside of the
In discussing context and purpose, the plurality also tries to further distinguish Voisine by saying that Voisine involved a prior offense of domestic violence, whereas this case involves prior offenses of assault. Ante, at 23. But Congress wanted to prohibit thrice-convicted violent criminals from unlawfully possessing firearms at least as much as it wanted to prohibit misdemeanor domestic violence offenders from unlawfully possessing firearms. Voisine cannot be distinguished on purposive grounds.
Finally, in discussing context and purpose, the plurality alludes several times to the 15-year mandatory minimum sentence in ACCA. (The mandatory minimum seems to loom very large as an influence on the plurality‘s overall analysis here.) But that mandatory minimum sentence comes into play only after four separate felony convictions, three of them for violent felonies and a fourth for unlawfully possessing firearms. ACCA‘s mandatory minimum sentence is not a basis for interpreting the statute contrary to its best reading. Moreover, Congress is attuned to the issue and has taken many steps in recent years to recalibrate sentencing, address mandatory minimums, and target those who most deserve substantial sentences. It is not our role to rewrite Congress‘s sentencing laws just because we might disagree with Congress or think that Congress is not moving quickly enough to enact new sentencing laws.
In short, ACCA‘s context and purpose, properly read, strongly support what the statutory text and precedent already establish: An individual who commits three reckless assaults or homicides and then unlawfully possesses firearms falls well within the class of people that ACCA encompasses.
IV
The Court‘s decision today will generate a variety of serious collateral effects that further underscore the implausibility of the plurality‘s statutory interpretation.
First, because the States define reckless assault and reckless homicide to cover a range of conduct, the Court‘s decision will exclude from ACCA many defendants who have committed serious violent offenses. Consider just a few examples, but keep in mind that there are thousands more:
- During the course of a fight, a defendant shot another man in the chest and killed him. A jury found the defendant guilty of second-degree reckless homicide. State v. Jackson, 2012 WL 4799459, *1 (Wis. App., Oct. 10, 2012).
- A defendant had been drinking in a parking lot with several others and then attacked another person with a knife. The knife attack resulted in a “ten-inch long, ‘gaping’ laceration” that “went down to the depth of the victim‘s ribs, through two layers of muscle and through his interior abdominal wall.” The defendant was convicted of reckless aggravated assault. State v. Farrar, 2002 WL 560959, *1-*2 (Tenn. Crim. App., Apr. 16, 2002).
- At a party, a defendant picked up a friend‘s gun, pointed it directly at
another person‘s head, and pulled the trigger. The evidence adduced at trial established that the defendant had recklessly disregarded a known risk that the gun was loaded. The defendant was convicted of reckless homicide. State v. Gough, 2009-Ohio-322, 2009 WL 180298, *1-*2 (App., Jan. 26, 2009). - A defendant savagely beat his victim “without provocation,” causing the victim to suffer “hearing loss, missing teeth, impaired vision and impaired memory.” The defendant was convicted of reckless aggravated assault. State v. McAmis, 2010 WL 2244124, *4 (Tenn. Crim. App., June 4, 2010).
In each of the above examples, the defendant‘s mental state for the state-law offense was determined to be recklessness. Under the Court‘s decision today, however, not one of those defendants committed a “violent felony” for purposes of ACCA because they supposedly did not commit an offense that necessarily entailed the use of force against the person of another.
And it gets worse. Under the Court‘s decision, even second-degree murder and some forms of manslaughter may be excluded from ACCA. That is because, in many States, some forms of second-degree murder and manslaughter do not require intent or knowledge. The idea that those offenses would fall outside of ACCA‘s scope is, as one judge aptly put it, “‘glaringly absurd.‘” United States v. Be-gay, 934 F. 3d 1033, 1047 (CA9 2019) (N. R. Smith, J., dissenting in part). Something has gone badly astray when this Court is suggesting that second-degree murder and manslaughter might not involve the “use of physical force against the person of another.”21
Second, the Court‘s decision will exclude even some convictions for intentional and knowing assaults. That is because several States criminalize felony assault in a single, indivisible provision that can be satisfied by intent, knowledge, or recklessness.22 Because courts use the categorical approach when applying ACCA‘s violent felony definition, the Court‘s decision today will thus exclude many intentional and knowing felony assaults from those States.
Consider just one example. In United States v. Esparza-Herrera, a defendant broke into the house of a woman he had previously dated, tied her up, and beat her over a four-hour period, leaving blood on her hands and face, her eyes swollen shut,
Third, after today‘s decision, attempted and threatened assaults and homicides will be covered under ACCA as violent felonies. But actual assaults and actual homicides that were committed recklessly will not be covered under ACCA. It seems incongruous to conclude that ACCA covers attempts or threats to injure others that never get completed or carried out, but does not cover situations where an individual carries through with reckless conduct and leaves a victim in a hospital or graveyard.
As those points indicate, the Court‘s decision today will undermine Congress‘s sentencing policy. In particular, today‘s decision will mean that some defendants otherwise subject to ACCA will leave prison much earlier than Congress dictated, or avoid ACCA altogether.23 To some, that may seem costless or even beneficial. Indeed, the plurality, in places, seems to doubt the use of the 15-year mandatory minimum sentence even for someone convicted of three separate violent felonies and then a fourth for unlawfully possessing firearms. But Congress, not this Court, sets national sentencing policy for violent crimes. Today‘s decision overrides Congress‘s policy judgment about the risk posed by serial violent felons who unlawfully possess firearms.
And today‘s decision will have significant real-world consequences. After all, as the U. S. Sentencing Commission recently reported, there is a very high rate of violent crime recidivism for ACCA defendants released from federal prison. According to that Sentencing Commission report, 59% of ACCA defendants released between 2009 and 2011 were re-arrested within eight years of their release from federal prison, most commonly for assault and most commonly within 18 months of release. See Federal Armed Career Criminals: Prevalence, Patterns, and Pathways 43-45 (2021). There is no reason to believe that the would-be ACCA defendants who will receive a lighter sentence after the Court‘s decision today will produce significantly different recidivism statistics. Those alarming statistics cannot be ignored, and they portend some of the human costs of the Court‘s erroneous decision today.
*
*
*
In sum, the text of ACCA‘s use-of-force clause encompasses reckless offenses, such as reckless assault and reckless homicide. Contrary to the plurality‘s conclusion today, the phrase “against the person of another” reflects a centuries-old term of art for classifying crimes and has zero to do with mens rea. Even setting aside that longstanding usage, the plurality‘s interpretation of the phrase “use of physical force against the person of another” fails as a matter of ordinary meaning and precedent. I respectfully dissent.
Notes
“(1) Intentionally or knowingly commits an assault as defined in §39-13-101 and:
“(A) Causes serious bodily injury to another; or
“(B) Uses or displays a deadly weapon; or
“(2) Recklessly commits an assault as defined in §39–13–101(a)(1), and:
“(A) Causes serious bodily injury to another; or
“(B) Uses or displays a deadly weapon.”
JUSTICE THOMAS further explains that reckless offenses were covered by ACCA under the residual clause. But that clause was declared unconstitutional in Johnson v. United States, 576 U. S. 591 (2015). Although JUSTICE THOMAS disagrees with Johnson, he indicates that he will today follow the Court‘s Johnson precedent, albeit not the Voisine precedent.
So we find ourselves in an unusual situation. In Voisine, seven Justices agreed that the phrase “use of physical force” in a similarly worded statute covers reckless offenses. And eight Justices today accept that the phrase “use of physical force” covers reckless offenses. Moreover, five Justices today agree that ACCA‘s text, properly interpreted, would cover reckless offenses. And only four Justices conclude that the phrase “against the person of another” addresses mens rea and excludes reckless offenses. Yet despite all of that, Borden prevails, and reckless offenses are now excluded from ACCA‘s scope. That outcome is anomalous.
See