United States of America v. Mujera Benjamin Lung‘aho
No. 22-3168
United States Court of Appeals For the Eighth Circuit
July 6, 2023
Submitted: March 14, 2023
STRAS, Circuit Judge.
The issue before us is whether arson is a “crime of violence” under
I.
Mujera Lung‘aho was angry after the death of George Floyd. The government claims that he and his friends channeled their anger into destroying as much police property as possible. In addition to slashing tires and breaking windows, they threw Molotov cocktails at three police cars.
Lung‘aho now faces 13 federal charges. Included among them are three counts of arson: “maliciously damag[ing] or destroy[ing],” by “fire or an explosive,” a “vehicle ... owned or possessed by . . . an[] institution or organization receiving” federal funding.
The arson charges are also the driving force behind three counts of possessing a “destructive device,”
Lung‘aho‘s position is that arson is not a “crime of violence.”
Following that logic, the district court dismissed the three destructive-device counts. The government has filed an interlocutory appeal with the hope of reinstating them. See
II.
Under the destructive-device statute, a “crime of violence” comes in only one form.2 It must have “as an element the
Using the categorical approach, our task is to determine whether the legal definition of arson necessarily has, as an element, the “use of physical force” against the person or property of another. Schneider, 905 F.3d at 1090. In a recent case, the Supreme Court told us that any crime that can be committed recklessly does not. See United States v. Hoxworth, 11 F.4th 693, 695–96 (8th Cir. 2021) (summarizing the holding of Borden v. United States, 141 S. Ct. 1817 (2021)). To take a simple example, the crime of running over a pedestrian the driver knows is right in front of him would still count, but one for recklessly hitting a pedestrian while texting would not.
A.
This simple example reflects the parties’ differing views on the federal arson statute. The government thinks, on the one hand, it requires at least knowledge: the offender must know that starting a “fire” or using “an explosive” will “damage[] or destroy[] . . . any building, vehicle, or other personal or real property . . . owned or possessed by . . . any institution or organization receiving Federal financial assistance.”
The statute uses the word “maliciously.”
When used in defining a crime, a word like “malice” or “malicious” has long described a state of mind requiring intentionality or a “willful disregard of [a] likelihood” of harm. Id. (citation omitted). Imputing that meaning here sheds light on the mental state required to commit arson:
Malice is close to recklessness, except for one subtle difference. A reckless act involves “consciously disregard[ing] a substantial and unjustified risk,” but unlike a malicious one, the “risk need not come anywhere close to a likelihood.” Borden, 141 S. Ct. at 1824 (plurality opinion) (emphasis added) (citation omitted). To put it in simpler terms, an action that has a 3% chance of harming someone, like shooting a gun straight up in the air in a crowded park, might be reckless, see 1 LaFave, supra, § 5.4(f), at 507, but such a low probability of harm would fail to satisfy the “very high degree of risk” required by malice, 2 LaFave, supra, § 14.4(a), at 593. Malice may be close to recklessness, but it is not the same.
Nor does it rise to the level of knowledge, which requires an “aware[ness] that [a] result is practically certain to follow from . . . conduct.” United States v. Bailey, 444 U.S. 394, 404 (1980) (quotation marks omitted). To extend the above example, someone who fires a gun directly into a group of people huddled together in a park has acted knowingly, practically certain that someone in the group will be seriously injured, if not killed.
To sum up, the differences between recklessness, malice, and knowledge come down to a sliding scale of probabilities. From “substantial and unjustified” (recklessness), Borden, 141 S. Ct. at 1831 (plurality opinion), to a “likelihood” (malice), Sweet, 985 F.2d at 445, to “practical certainty” (knowledge), Bailey, 444 U.S. at 404 (citation omitted), each requires more risk and culpability than the last. In many cases, there may be “little difference” between these mental states. United States v. Whaley, 552 F.3d 904, 907 (8th Cir. 2009). But little does not mean none, especially in the topsy-turvy world of the categorical approach.
The Supreme Court saw this difficulty coming in Borden. It recognized that criminal statutes use a variety of mental states, some situated “between recklessness and knowledge,” and reserved whether they could satisfy the force clause. Borden, 141 S. Ct. at 1825 n.4 (plurality opinion). State-of-mind requirements like “depraved heart[,] . . . extreme recklessness,” id., and malice require the government to prove that the defendant has ignored a “likelihood” of harm, Whaley, 552 F.3d at 907. And post-Borden, they have generated disagreement about which, if any, satisfy the force clause. Compare United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022) (holding that actions reflecting “an extreme indifference to human life” were enough to satisfy the force clause (citation omitted)), with United States v. Begay, 33 F.4th 1081, 1102–03 (9th Cir. 2022) (en banc) (Ikuta, J., dissenting in part) (arguing that crimes requiring extreme recklessness do not). This case requires us to pick a side.
B.
Although Borden does not address what happens in the case of these in-between mental states, its reasoning points us to the right answer. Five Justices agreed that the force clause “categorically excludes crimes that can be committed recklessly.” Hoxworth, 11 F.4th at 695 (summarizing Borden‘s holding). The four in the plurality focused on the meaning of
1.
Start with the plurality‘s analysis. See Borden, 141 S. Ct. at 1825–26. In its view, to use physical force “against” another, the offender must be “in opposition to” the victim or the victim‘s property. Id. at 1826 (brackets omitted) (quoting Webster‘s New International Dictionary 46 (2d ed. 1957)). For example, a “general deploy[ing] his forces against a rival regiment” or a “chess master play[ing] the Queen‘s Gambit against her opponent.” Id. at 1825 (emphases added). What is required, in other words, is “targeting“: the conduct must be “consciously directed” at someone or something. Id. at 1826.
Arson, at least as
Even consciously disregarding a high risk of harm does not necessarily involve “targeting.” Id. at 1826. Take an example from oral argument. A man plans to visit a national park and set off fireworks to celebrate the Fourth of July. The only problem is that there is an extreme forest-fire warning. Despite the high risk involved, he decides to go forward with his plan anyway, knowing that there is a good chance—say 60%—that he will burn down a nearby park-ranger station. Sure enough, the fireworks spark a massive fire that consumes it.
On these facts, no one would say that the man “targeted” the ranger station. Id. He “consciously directed” his attention to the fireworks he was planning to set off, not the nearby ranger station he placed in danger. Id. Using the plurality‘s terminology, it became the “mere recipient of force.” Id. at 1825. Nothing more, nothing less.
Yet the man also did enough to complete the crime of arson. He “maliciously” destroyed a federally owned building “by means of fire or an explosive.”
2.
Justice Thomas‘s concurrence is even clearer on this point. Rather than focusing on what the word “against” requires, like the plurality did, his concurrence analyzes the meaning of the phrase, “use of physical force.” Borden, 141 S. Ct. at 1835 (Thomas, J., concurring in the judgment).
Take the fireworks hypothetical. The man was able to commit arson under
It is no doubt true that the man intended to shoot off fireworks in the hypothetical. But what matters under the arson statute is whether he willfully disregarded a likelihood of “damage[] or destr[uction].”
Justice Thomas‘s result-oriented approach to the force clause is similar. In his view, the “use of physical force” requires a “design[] to cause harm.” Borden, 141 S. Ct. at 1835 (Thomas, J., concurring in the judgment) (citation omitted); see Voisine, 579 U.S. at 700 (Thomas, J., dissenting) (explaining that “[t]o ‘use’ something... is an inherently intentional act—that is, an act done for the purpose of causing certain consequences or at least with knowledge that those consequences will ensue“).
A “comparison of elements” reveals a mismatch. Mathis, 579 U.S. at 504. The malice required by the arson statute is a willful disregard of a likelihood of harm, but the minimum mental state under Justice Thomas‘s interpretation of the force clause is at least knowledge, if not purpose. See Borden, 141 S. Ct. at 1835 (Thomas, J., concurring in the judgment). We know that malice falls short of both, so arson is not a “crime of violence” under Justice Thomas‘s approach either.
Any way you slice it, the reasoning in Borden—whether from the plurality or Justice Thomas—rejects the approach that the government asks us to accept today. See Borden, 141 S. Ct. at 1825 (plurality opinion); id. at 1834–35 (Thomas, J., concurring in the judgment). Consciously creating a “likelihood” of harm to property does not satisfy the force clause, despite the high risk involved. Whaley, 552 F.3d at 907. In short, the arson counts, see
We accordingly affirm the judgment of the district court.