I’ll pick up where I left off in yesterday’s post. Sykes was convicted of the Indiana crime of using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop. Was this a “violent felony”? The Seventh Circuit held yes, although at least one other circuit has concluded that a similar crime was not.
In Chambers, the Court was able to avoid answering any hard questions about the culpability required for an offense to count as a “violent felony” because the offense at issue in that case did not satisfy the requirement of objective dangerousness. The Court is less likely to reach a similar conclusion in Sykes.
Having read the government’s brief, I’m impressed that there is a much more solid case for objective dangerousness in Sykes than in Chambers. Not airtight, mind you, but still pretty strong.
The key to the government’s argument is the assumption that police typically give chase when a motorist refuses an order to pull over, because there is a fair bit of data showing that police pursuit is a rather dangerous proposition. And it does seem at least plausible that pursuit typically ensues, although I suppose it is also possible that (a) many motorists who initially refuse to pull over think better of it pretty quickly, obviating the need for pursuit; and (b) that many orders to pull over are for such minor infractions that officers (either as a matter of their own discretion or departmental policy) decline to initiate pursuit. I don’t think the government has nailed down how common (a) and (b) are. Still, the dangerousness argument here seems considerably stronger than in Chambers, which means that the Court is likely to have to confront the state-of-mind questions.
The threshold question, as I suggested in yesterday’s post, is whether the Begay culpability requirement survives Chambers. Assuming it does, the Court may then have an opportunity to explain more clearly what state of mind is implied by Begay‘s “purposeful, violent, and aggressive” test.
The government’s position on culpability seems to be that it is enough that Sykes was convicted of a crime having as an element that he “knowingly or intentionally” fled from a law enforcement officer.
Sykes, however, cites Judge Posner’s cogent dissent in another ACCA case involving a similar Illinois fleeing statute, Welch v. United States, 604 F.3d 408, 434 (2010). Here is Posner’s position:
Thus I don’t agree that just because the defendant intended to flee from the police his action was “purposeful” within the meaning of the Supreme Court’s formula. Given that the purpose of the catch-all provision in the Armed Career Criminal Act is to enable courts to identify crimes that are similar to the enumerated ones, “purposeful” should be interpreted to mean trying to harm a person’s person or property, which is characteristic of the enumerated crimes. Burglary requires proof of intent to commit a crime following unlawful entry, arson proof of intent to destroy property without legal authority, extortion proof of intent to obtain another person’s property by a threat. These crimes do not merely create a risk of harm, as aggravated fleeing does.
It’s not that the enumerated crimes necessarily are motivated by a desire to hurt anyone. The criminal may simply want the victim’s property. (In an arson case, the victim is often an insurance company-and arsonists don’t dislike insurance companies-rather the contrary!) But to get what he wants he has to harm the victim; purpose to harm is intrinsic to the crime although it often is not the motive. That is not true in a flight case any more than it is true in a DUI case. In both the perpetrator is behaving in a dangerous manner but in neither is he trying to take anything from anyone or otherwise harm anyone. And “although the [fleeing] statute does require intent, the required mental state is only intent to be free of custody, not intent to injure or threaten anyone. It is easy to violate [such a statute] without intending or accomplishing the destruction of property or acting in an aggressive, violence-provoking manner that could jeopardize guards or bystanders.” United States v. Templeton, supra, 543 F.3d at 383.
Dismuke calls aggravated fleeing “aggressive” because it involves defiance of authority. 593 F.3d at 595. But that is true of all escapes-the point of Chambers was that we can’t treat all escapes alike. Dismuke calls fleeing “active” rather than “passive,” id., but all actions are active, yet most are not aggressive. To fail to report to prison when ordered is to defy the authority of the sentencing judge and the Bureau of Prisons. Many acts of civil disobedience are emphatically active and defiant of authority at their core, but are miles away from being aggressive. Dismuke notes the possibility of a future confrontation with authority but that is also a likely consequence of a walkaway escape or a failure to report and is an especially likely consequence of many acts of civil disobedience. Adopting a rule that would exclude from the category of “violent felony” a crime that while it may be dangerous does not involve any intention of harming anyone would go some distance toward clarifying the meaning of “violent felony” and by doing so perhaps check the avalanche of litigation over that meaning.
I continue to have mixed feelings about whether the ACCA can fairly be interpreted to include a culpability requirement. But, assuming the Court plans to stick with a culpability requirement, Posner’s formulation strikes me as quite sensible and consistent with the best understanding of the statute’s purpose.