(Slip Opinion) OCTOBER TERM, 2020 1
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
The Armed Career Criminal Act (ACCA) mandates a 15-year minimum
sentence for persons found guilty of illegally possessing a firearm who
have three or more prior convictions for a “violent felony.” An offense
qualifies as a violent felony under ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical
force against the person of another.” 18 U. S. C. §924(e)(2)(B)(i). In
Leocal v. Ashcroft,
543 U. S. 1, the Court held that offenses requiring
only a negligent mens rea fall outside a relevantly identical definition.
Id., at 9. The “critical aspect” in determining the relevant mens rea,
the Court explained, was the statute’s demand that the perpetrator
use physical force “against the person or property of another.” Ibid (emphasis in original). Then in Voisine v. United States,
579 U. S. 686, the
Court held that reckless crimes fall within a different statutory definition—this one requiring the “use of physical force,” but lacking the
“against” phrase Leocal deemed “critical.” In both decisions, the Court
left open whether reckless offenses would satisfy ACCA’s elements
clause.
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.
2 BORDEN v. UNITED STATES
Syllabus
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
Cite as: 593 U. S. ____ (2021) 3
Syllabus
Voisine, which interpreted the phrase “use of force” in defining a “domestic violence · Case Law">crime of domestic violence · Case Law">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 ACCA’s elements clause. The provision in
Voisine defines not a “violent felony” but a “misdemeanor crime of domestic violence.” It focuses on those convicted not of serious felony
offenses, but instead of “garden-variety assault or battery misdemeanors.”
579 U. S., at ___ (slip op., at 8). And it captures not “violent,
active” conduct alone, but also “acts that one might not characterize as
‘violent’ in a nondomestic context.” United States v. Castleman,
572
U. S. 157, 165. Given those surrounding differences in coverage, it
makes sense that the domestic violence provision would include reckless behavior when ACCA’s elements clause does not. Pp. 20–23.
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.
Cite as: 593 U. S. ____ (2021) 1
the
Opinion of K Court
AGAN, 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), 18 U. S. C.
§924(e), mandates a 15-year minimum sentence for persons
found guilty of illegally possessing a gun who have three or
more prior convictions for a “violent felony.” The question
here is whether a criminal offense can count as a “violent
felony” if it requires only a mens rea of recklessness—a less
culpable mental state than purpose or knowledge. We hold
that a reckless offense cannot so qualify.
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
2 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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
18 U. S. C. §922(g) of being a felon in
possession of a firearm if he has three or more prior convictions (whether state or federal) for a “violent felony.” The
increase in penalty is severe: A 10-year maximum sentence
turns into a 15-year minimum one. See §924(a)(2), (e)(1).
And because that is so, the scope of the statute is closely
confined. See Begay,
553 U. S., at 146 (Congress did not
provide for “a 15-year mandatory prison term where th[e]
increased likelihood [of gun violence] does not exist”). The
penalty enhancement kicks in only when a defendant has
committed no fewer than three offenses meeting the statute’s definition of “violent felony.” That definition, in addition to ticking off several specific crimes (for example, burglary and arson), includes the so-called elements clause,
relevant here. An offense qualifies as a violent felony under
that clause if it “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” §924(e)(2)(B)(i).
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.” §924(e)(2)(B)(i); see
Shular v. United States,
589 U. S. ___, ___–___ (2020) (slip
op., at 3–4). If any—even the least culpable—of the acts
criminalized do not entail that kind of force, the statute of
conviction does not categorically match the federal stand-
Cite as: 593 U. S. ____ (2021) 3
Opinion of KAGAN, J.
ard, and so cannot serve as an ACCA predicate. See Johnson v. United States, 559 U. S. 133, 137 (2010).
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.” Tenn. Code Ann. §39–13–102(a)(2) (2003); see
§39–13–101(a)(1). 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, holding that reckless offenses qualify as violent felonies and sentencing Borden as a career offender. The Court of Appeals for the Sixth
Circuit affirmed that decision based on circuit precedent—
though noting that Borden was “not alone” in viewing the
precedent as “wrongly decided.”
769 Fed. Appx. 266, 268
(2019) (citing United States v. Verwiebe,
874 F. 3d 258 (CA6
2017)).
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
——————
1 See United States v. Burris,
920 F. 3d 942, 951 (CA5 2019); United
States v. Haight,
892 F. 3d 1271, 1281 (CADC 2018); United States v.
Pam,
867 F. 3d 1191, 1207–1208 (CA10 2017); United States v. Fogg,
836
F. 3d 951, 956 (CA8 2016).
2 See United States v. Begay,
934 F. 3d 1033, 1039 (CA9 2019); United
States v. Moss,
920 F. 3d 752, 756 (CA11 2019), vacated pending reh’g en
4 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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.” §924(e)(2)(B)(i). We
granted certiorari to resolve the issue. 589 U. S. ___ (2020).
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
——————
banc.
Cite as: 593 U. S. ____ (2021) 5
Opinion of KAGAN, J.
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
Recklessness and negligence are less culpable mental
states because they instead involve insufficient concern
with a risk of injury. A person acts recklessly, in the most
common formulation, when he “consciously disregards a
substantial and unjustifiable risk” attached to his conduct,
in “gross deviation” from accepted standards. Model Penal
Code §2.02(2)(c); see Voisine v. United States, 579 U. S. 686,
___ (2016) (slip op., at 4). That risk need not come anywhere
close to a likelihood. Speeding through a crowded area may
count as reckless even though the motorist’s “chances of hitting anyone are far less [than] 50%.” 1 W. LaFave, Substantive Criminal Law §5.4(f ) (2018) (citing cases involving
low-probability events). Similarly (though one more step
down the mental-state hierarchy), a person acts negligently
if he is not but “should be aware” of such a “substantial and
unjustifiable risk,” again in “gross deviation” from the
norm. Model Penal Code §2.02(2)(d). There, the fault lies
in the person’s simple “failure to perceive” the possible consequence of his behavior. Ibid.
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
——————
3 The difference between purpose and knowledge matters for certain
“classes of crimes,” where “heightened culpability has been thought to
merit special attention.” United States v. Bailey,
444 U. S. 394, 405
(1980). The most typical examples are inchoate crimes (conspiracy or
attempts) and accessory liability (aiding and abetting). There, a purposeful mental state may help separate criminal conduct from innocent
behavior. See ibid.; United States v. Falcone,
109 F. 2d 579, 581 (CA2
1940) (L. Hand, J.); Model Penal Code, Comment 2, p. 234. We have no
occasion to address those offenses, nor the relationship more generally
between purpose and knowledge.
6 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
elements clause. That definition, codified at 18 U. S. C.
§16(a), is for the term “crime of violence,” which appears in
many federal criminal and immigration laws. Section 16(a)
states, in language that should by now sound familiar, that
a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” (In case
you missed it, the sole difference between §16(a) and the
elements clause is the phrase “or property,” which brings
property crimes within the former statute’s ambit.) The
question presented was whether that definition covers DUI
offenses—for driving under the influence of alcohol and
causing serious bodily injury—that require only a negligent
mental state. In addressing that issue, the parties had debated whether “the word ‘use’ alone supplies a mens rea element.”
543 U. S., at 9. But the Court thought the focus on
that one word “too narrow.”
Ibid. Rather, we said, the “critical aspect” of §16(a) is its demand that the perpetrator use
physical force “against the person or property of another.”
Ibid. (emphasis in original). As a matter of “ordinary or
natural meaning,” we explained, that “key phrase . . . most
naturally suggests a higher degree of intent than negligent”
conduct. Ibid. (internal quotation marks omitted). And
confirmation of that view came from the defined term itself.
The phrase “crime of violence,” we reasoned, “suggests a
category of violent, active crimes that cannot be said naturally to include” negligent offenses. Id., at 11. All that sufficed to resolve the status of the DUI offense at issue. The
Court thus reserved the question whether an offense with
a mens rea of recklessness likewise fails to qualify as a
crime of violence. Id., at 13.
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 of a “misdemeanor crime of domestic violence”
Cite as: 593 U. S. ____ (2021) 7
Opinion of KAGAN, J.
from possessing firearms. 18 U. S. C. §922(g)(9). That
phrase is defined to mean a misdemeanor, committed by a
person in a specified domestic relationship with the victim,
that “has, as an element, the use or attempted use of physical force.” §921(a)(33)(A). In that truncated definition, the
only language anyone could “think[ ] relevant” was the word
“use” (the word Leocal, in construing a longer definition,
deemed not the right focus). Voisine,
579 U. S., at ___ (slip
op., at 5). The Court understood “use” as demanding
volition—the “active employment” of force.
Id., at ___–___
(slip op., at 5–6). But we thought that lone word “indifferent” to whether an actor choosing to employ force had a
mental state of recklessness, knowledge, or purpose.
Id., at
___ (slip op., at 6). And that reading of “use,” we continued,
is the only one consistent with the statute’s history and purpose. Congress enacted §922(g)(9), we explained, to prevent
domestic abusers convicted of “garden-variety [misdemeanor] assault” from owning guns—and most such misdemeanors cover reckless conduct. Id., at ___ (slip op., at 8).
At each step of the analysis, then, our decision was statutespecific. We made clear that other statutory definitions—
whether the one in Leocal or the near-identical one in
ACCA’s elements clause—might exclude reckless offenses.
See id., at ___, n. 4 (slip op., at 7, n. 4).
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
——————
4 Some States recognize mental states (often called “depraved heart” or
“extreme recklessness”) between recklessness and knowledge. We have
no occasion to address whether offenses with those mental states fall
within the elements clause.
8 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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.” Brief for
United States 23–24 (also citing dictionaries). As examples,
the Government offers: “waves crashing against the shore
or a baseball hitting against the outfield fence.” Id., at 23
(internal quotation marks omitted). The difference in
meaning, both parties agree, matters for this case. Brief for
Petitioner 19–21; Brief for United States 23–24. If
“against,” as used here, expresses a kind of directedness or
targeting, then recklessness—as even the Government
Cite as: 593 U. S. ____ (2021) 9
Opinion of KAGAN, J.
concedes—falls outside the elements clause. See id., at 26
(noting that the oppositional definition of “against” would
exclude “a defendant who recklessly causes injury”). Only
if the “against” phrase lacks that connotation—if, as the
Government argues, it is indifferent to whether the conduct
is directed at another—can the elements clause include
reckless offenses.
Id., at 23.
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
——————
5 In similar manner, the examples that dictionaries give of the “in con-
tact with” meaning of “against” all involve non-volitional conduct. See,
e.g., American Heritage Dictionary 23 (1981) (those same big “waves
dashing against the shore”); Webster’s New International Dictionary, at
46 (“hail beats against the roof ”); Webster’s Third New International
Dictionary 39 (1981) (“the fighter was knocked back against the ropes”).
10 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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.”
The same holds true for knowing behavior. Say a getaway
driver sees a pedestrian in his path but plows ahead anyway, knowing the car will run him over. That driver, too,
fits within the statute: Although he would prefer a clear
road, he too drives his car straight at a known victim. Or
said otherwise, both drivers (even though for different reasons) have consciously deployed the full force of an automobile at another person. See United States v. United States
Gypsum,
438 U. S. 422, 445 (1978) (explaining that the law
thus views both as “intend[ing]” the result). But that is not
so of a reckless (or a negligent) actor. Imagine a commuter
who, late to work, decides to run a red light, and hits a pedestrian whom he did not see. The commuter has consciously disregarded a real risk, thus endangering others.
——————
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”).
Cite as: 593 U. S. ____ (2021) 11
Opinion of KAGAN, J.
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.”
18 U. S. C. §16(a); see
543 U. S., at 9; supra, at 5–6. In thus
excluding crimes with a negligent mens rea, the Court reasoned just as we have today. When read against the words
“use of force,” the “against” phrase—the definition’s “critical aspect”—“suggests a higher degree of intent” than
(at least) negligence.
543 U. S., at 9. That view of
§16(a)’s “against” phrase—as incorporating a mens rea
requirement—contradicts the Government’s (and dissent’s)
view here that a materially identical phrase is “not a roundabout way” of . . . incorporating a mens rea requirement.
Brief for United States 9. The Government thus asks us to
read ACCA’s elements clause—specifically, its “against”
phrase, modifying the “use of force”—contrary to how we
have read near-identical words before.
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-
12 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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.” §16(a) (emphasis added); see supra, at 6. In other
words, §16(a) lists both of the two (and only two) plausible
objects of force. So the Government’s intent-less reading
would leave the “against” phrase in §16(a) without any
function; it would render the phrase surplusage. Far from
thinking such a thing possible, the Leocal Court considered
§16(a)’s “against” phrase “key” and “critical”—again, because it (in combination with the “use of force” language)
defines the requisite “degree of intent.” 543 U. S., at 9. Unlike the Government, we favor a construction consonant
with that view. The “against” phrase indeed sets out a mens
rea requirement—of purposeful or knowing conduct.
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
Cite as: 593 U. S. ____ (2021) 13
Opinion of KAGAN, J.
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., La. Rev. Stat. Ann., Tit. 14, ch. 1, pt. 2
(West 2016) (listing offenses—spanning homicide, negligent DUI, and defamation—under the chapter heading “offenses against the person”).
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
14 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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. See supra, at 9–10. Nor is that only our
explanation: As noted earlier, Leocal said the identical
thing about nearly identical statutory language, focusing on
the interplay of “use” and “against” to conclude that the language had everything—not “zero”—to do with mens rea.
See 543 U. S., at 9 (holding that the whole phrase “most
naturally suggests a higher degree of intent”); supra, at 11.
So it is no small thing that the dissent, in its term-of-art
machinations, removes the verb phrase “use of physical
force” and substitutes the simple noun “offenses.” In so doing, it has replaced the very thing that shapes the “against”
phrase’s meaning. Once again, statutory construction does
not work that way: A court does not get to delete inconvenient language and insert convenient language to yield the
court’s preferred meaning.
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
Cite as: 593 U. S. ____ (2021) 15
Opinion of KAGAN, J.
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
——————
6 The dissent also goes through a complicated counting exercise about
how different Justices have divided in this and two other cases, apparently to show how unfair it is that the dissent’s view has not prevailed
here. See post, at 4, n. 3. But there is nothing particularly unusual about
today’s line-up. Four Justices think that the “use” phrase, as modified
16 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
B
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.
——————
by the “against” phrase, in ACCA’s elements clause excludes reckless
conduct. One Justice thinks, consistent with his previously stated view,
that the “use” phrase alone accomplishes that result. See post, at 2
(THOMAS, J., concurring in judgment). And that makes five to answer the
question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.
Cite as: 593 U. S. ____ (2021) 17
Opinion of KAGAN, J.
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
——————
7 The dissent would upend our consistent view of Congress’s purpose
by treating as ACCA predicates not just “purposeful, violent, and aggressive” crimes but the disregard-of-risk offenses we have found “far removed.” Begay,
553 U. S., at 145, 147. The “line for criminal liability,”
the dissent argues, is generally drawn at recklessness, and so the Model
Penal Code “establishes recklessness as the default minimum mens rea.”
Post, at 15, 16. But we have never suggested that the threshold for criminal liability is the threshold for ACCA, or that ACCA is about offenders
who meet “minimum” requirements. To the contrary. As just noted, we
have insisted on a higher threshold: ACCA predicates are the crimes
“typically committed by those whom one normally labels ‘armed career
criminals’ ”—whose very possession of a gun poses a “special danger.”
Begay,
553 U. S., at 146.
18 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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
Cite as: 593 U. S. ____ (2021) 19
Opinion of KAGAN, J.
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
The Government’s response (echoed in the dissent)—that
statutes covering reckless conduct can also “cover[ ] classically violent crimes”—has no purchase given ACCA’s categorical approach. Brief for United States 41; see post, at
——————
8 The dissent—once again, contrary to the statute’s design—would blur
that distinction, on the ground that crimes like reckless driving can
cause great harm. See post, at 32–34. Of course they can. But in viewing
that fact as controlling, the dissent runs into not just ACCA but pretty
much all of sentencing law. That law almost invariably turns on mental
state as well as harm. Consider the Tennessee statute giving rise to this
case. Borden’s reckless assault conviction carried a sentence of two to
twelve years; but had he been convicted of purposeful or knowing assault,
the sentencing range would have been three to fifteen years. Compare
Tenn. Code Ann. §§39–13–102(2), 40–35–111(b)(4), with §§39–13–102(1),
40–35–111(b)(3). In imposing lesser penalties for recklessness, Tennessee—like the mine run of States with similar penalty schemes—is not
suggesting that such offenses are “benign.” Post, at 15. They are recognizing, though, that mental state matters to culpability—and more, that
an act done recklessly often should not receive as harsh a punishment as
the same act done purposefully or knowingly, even when the two cause
the same harm. That approach is the one ACCA takes in reserving enhanced penalties for multiple instances of purposeful and knowing, but
not reckless, conduct. The dissent would write a different statute, based
on a different theory of criminal punishment. But the dissent’s preferred
approach is not the one Congress enacted into law. And the dissent does
not get to tell Congress that, in writing the statute it wrote, it failed to
enhance penalties for gun possession enough.
20 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
34–37. The Government lists, for example, several prosecutions for serious beatings brought under the Tennessee
law prohibiting reckless aggravated assault. See Brief for
United States 42 (describing cases in which a defendant
“slamm[ed] his fist into the face of a man” and another defendant “looked the victim directly in the eye” and kicked
her). In those cases, the State presumably decided to
charge a defendant with reckless (rather than purposeful or
knowing) assault because of some problem or idiosyncrasy
in the case. (In the two cases described, for instance, one of
the defendants was high on drugs, and the other had a plausible self-defense claim.) But under the categorical approach, the existence of such cases is neither here nor there.
An offense does not qualify as a “violent felony” unless the
least serious conduct it covers falls within the elements
clause. See Moncrieffe v. Holder, 569 U. S. 184, 190–191
(2013) (“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we
must presume that the conviction rested upon nothing more
than the least of the acts criminalized” (alterations and internal quotation marks omitted)); supra, at 2–3. That approach is under-inclusive by design: It expects that some violent acts, because charged under a law applying to nonviolent conduct, will not trigger enhanced sentences. So
what matters are not the convictions the Government offers, but those for, say, running a stop sign or skiing too
wildly. Because a law criminalizing recklessness covers—
indeed, was likely designed for—that kind of conduct, the
offense cannot count as a violent felony.
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
Cite as: 593 U. S. ____ (2021) 21
Opinion of KAGAN, J.
simple phrase “use of physical force”—includes reckless
conduct. 18 U. S. C. §§922(g)(9), 921(a)(33)(A); see supra,
at 6–7. The Government acknowledges that Voisine expressly left open the question presented here. See
579
U. S., at ___, n. 4 (slip op., at 7, n. 4). But in the Government’s view, the “logic” of that decision establishes that
ACCA’s elements clause, too, covers reckless offenses. Brief
for United States 14. “Voisine’s key insight,” the Government says, “is that the word ‘use’ refers to the ‘act of employing something’ and does not require a purposeful or
knowing state of mind.”
Ibid. (internal quotation marks
omitted). That insight, the Government concludes, “applies
equally to the ACCA’s elements clause.” Id., at 8. But the
Government’s argument ignores the textual difference between the two statutes—not the word “use” (which is indeed
the same), but the “against” phrase on which our holding is
based. And so too, the argument disregards how the context
and purpose of the statute in Voisine diverge from those of
ACCA’s elements clause.
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
22 BORDEN v. UNITED STATES
Opinion of KAGAN, J.
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
——————
9 In one paragraph of its brief, the Government tries to erase this tex-
tual difference by invoking a sentence in Voisine that uses the word
“against.” See Brief for United States 24. (The dissent does the same, if
at greater length. See post, at 19–20, 26–27.) Recall that the domestic
violence statute bars someone from owning a gun if he has been convicted
of a misdemeanor that has, as an element, the “use” of physical force
“committed by a current or former spouse, parent, or guardian of the victim” or by a person in another of three specified relations with the victim.
§921(a)(33)(A); see supra, at 6–7. Rather than echo that awkward construction, the Court used shorthand, describing the statute as applying
to a person with a “misdemeanor conviction for the ‘use . . . of physical
force’ against a domestic relation.” 579 U. S., at ___ (slip op., at 12). In
the Government’s view, that line shows that we “treated the statute as
if it contained a prepositional phrase similar to the ACCA’s” (and still
found it to include reckless conduct). Brief for United States 24. We
think that a stretch. The locution shows only that sometimes we do not
paraphrase complex statutory language as well as we might. (Mea
culpa.) What matters in Voisine is not a one-line description, but a
pages-long analysis of the statutory text—and that discussion gives no
support to the Government. Rather than imply an “against” clause,
Voisine focused like a laser on the meaning of “use”—because we understood the statute to say nothing else. See, e.g.,
579 U. S., at ___ (slip op.,
at 5) (“Nothing in the word ‘use’—which is the only statutory language
either party thinks relevant—indicates that §922(g)(9) applies exclusively to knowing or intentional domestic assaults.”); id., at ___ (slip op.,
at 6) (citing examples to show “the ordinary meaning of the word ‘use’ ”).
“[T]he language of an opinion,” we have stated, “is not always to be
Cite as: 593 U. S. ____ (2021) 23
Opinion of KAGAN, J.
Likewise, context and purpose distinguish the two statutes. The provision in Voisine defines not a “violent felony”
but a “misdemeanor crime of domestic violence.” It focuses
on those convicted not of serious felony offenses, but instead
of “garden-variety assault or battery misdemeanors.” 579
U. S., at ___ (slip op., at 8). And it captures not “violent,
active” conduct alone, see supra, at 16–17, but also “acts
that one might not characterize as ‘violent’ in a nondomestic context.” United States v. Castleman,
572 U. S. 157, 165
(2014) (referring to “[m]inor uses of force” like “grabbing
[and] pinching”). Given those surrounding differences in
coverage, it is hardly remarkable that the domestic violence
provision would include reckless behavior when ACCA’s elements clause does not. And relatedly, the two statutes accomplish dissimilar things. The provision in Voisine adds
misdemeanant domestic abusers to a long list of people (including felons, substance abusers, and the mentally ill) disqualified from possessing a gun. See §922(g)(1)–(9); Castleman, 572 U. S., at 166–167. The recidivist offenders to
whom ACCA applies are already subject to that disability.
The statute additionally imposes on them—precisely because they are “armed career criminals,” not ordinary offenders—greatly enhanced prison sentences. So again, we
see nothing surprising—rather, the opposite—in the two
statutes’ dissimilar treatment of reckless crimes.
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.
——————
parsed as though we were dealing with language of a statute.” Reiter v.
Sonotone Corp., 442 U. S. 330, 341 (1979). And that is most obviously
true when an opinion’s language revises (for easier reading) the statute’s
own. Better to heed the statutory language proper.
Cite as: 593 U. S. ____ (2021) 1
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
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 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 vaguenessdoctrine 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.” 18 U. S. C. §924(e)(1).
As relevant here, the Act defines a “violent felony” as a
“crime punishable by imprisonment for a term exceeding
one year” that either “has as an element the use, attempted
use, or threatened use of physical force against the person
of another” (the elements clause) or “involves conduct that
2 BORDEN v. UNITED STATES
THOMAS
THOMAS, J., concurring
, J., inin
concurring the judgment
judgment
presents a serious potential risk of physical injury to another” (the residual clause). §924(e)(2)(B).1
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.”
Tenn. Code Ann. §39–13–102(a)(2)(A) (2003). That offense
would satisfy the residual clause because it “involves conduct that presents a serious potential risk of physical injury
to another.” §924(e)(2)(B)(ii). So although the elements
clause does not make petitioner an armed career criminal,
the residual clause would.
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
——————
1 The definition also covers any felony that “is burglary, arson, or ex-
tortion” or “involves use of explosives.” §924(e)(2)(B)(ii).
Cite as: 593 U. S. ____ (2021) 3
THOMAS
THOMAS, J., concurring
, J., inin
concurring the judgment
judgment
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 beyond the parties to the case.” Trump v. Hawaii,
585 U. S. ___, ___, ___
(2018) (THOMAS, J., concurring) (slip op., at 6, 8). A court
may only “ ‘adjudge the legal rights of litigants in actual
controversies.’ ” United States v. Raines,
362 U. S. 17, 21
(1960). When faced with a criminal statute too vague for
the case at hand, the right answer likely is to apply the rule
of lenity and “declin[e] to apply [the statute] on a case-bycase basis.” Sessions v. Dimaya,
584 U. S. ___, ___ (2018)
(THOMAS, J., dissenting) (slip op., at 4). By, instead, purporting to decide theoretical cases for theoretical parties not
——————
2 Johnson has already upended many statutes. United States v. Davis,
588 U. S. ___ (2019); Sessions v. Dimaya,
584 U. S. ___ (2018); Welch v.
United States,
578 U. S. 120 (2016) (making Johnson retroactive). And
the parties agree that more are likely to follow.
4 BORDEN v. UNITED STATES
THOMAS
THOMAS, J., concurring
, J., inin
concurring the judgment
judgment
before the Court, Johnson departed from foundational limits on the judicial power.
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.
Cite as: 593 U. S. ____ (2021) 5
THOMAS
THOMAS, J., concurring
, J., inin
concurring the judgment
judgment
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.3 See Vance v. Ball State Univ.,
570 U. S. 421, 450–
451 (2013) (THOMAS, J., concurring). I therefore concur in
the judgment.
——————
3 Voting to affirm petitioner’s sentence here would lead to a 5 to 4 judg-
ment that petitioner’s sentence is correct even though five Justices conclude that Tennessee reckless aggravated assault does not satisfy the elements clause. That kind of fractured reasoning would be difficult for
lower courts to apply.
Cite as: 593 U. S. ____ (2021) 1
KAVANAUGH, J., dissenting
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 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.” 18 U. S. C. §924(e)(2)(B)(i)
(emphasis added). By defining violent felony in that manner, Congress ensured that the prototypical felonies involving physical force against a person—in particular, assault,
homicide, rape, and robbery—would qualify as predicate
offenses under ACCA.
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
2 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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 §922(g)(1).
The District Court concluded that Borden was subject to
ACCA because of his three prior convictions in 2002, 2003,
and 2007 for aggravated assault under Tennessee law.2
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
——————
1 ACCA also includes serious drug offenses as qualifying predicates. 18
U. S. C. §924(e)(2)(A). That aspect of ACCA is not at issue here.
2 Tennessee’s aggravated assault statute provides: “A person commits
aggravated assault who:
“(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.” Tenn. Code Ann. §39–13–102
(2003).
Cite as: 593 U. S. ____ (2021) 3
KAVANAUGH, J., dissenting
homicide. And the Model Penal Code and most States provide that recklessness as to the consequences of one’s actions generally suffices for criminal liability. Importantly,
moreover, Borden does not dispute that ACCA’s phrase “use
of physical force” on its own would include reckless offenses,
such as reckless assault or reckless homicide. But Borden
nonetheless contends that ACCA’s phrase “use of physical
force against the person of another” somehow excludes
those same reckless offenses, including reckless assault and
reckless homicide.
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
4 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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);
18 U. S. C. §921(a)(33)(A).
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
——————
3 Just to explain today’s lineup: Four Justices form the plurality.
JUSTICE THOMAS concurs in the judgment. He agrees with the plurality’s
result but not its reasoning, and concludes that the phrase “use of physical force” alone excludes reckless offenses such as reckless assault or
reckless homicide. The Court reached a different conclusion in interpreting a similarly worded statute in Voisine v. United States,
579 U. S. 686
(2016). But JUSTICE THOMAS indicates that he will not follow that precedent in this case. (Importantly, unlike the plurality, JUSTICE THOMAS
does not rely on the phrase “against the person of another.”)
JUSTICE THOMAS further explains that reckless offenses were covered
Cite as: 593 U. S. ____ (2021) 5
KAVANAUGH, J., dissenting
I
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
——————
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.
6 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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
Cite as: 593 U. S. ____ (2021) 7
KAVANAUGH, J., dissenting
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
——————
4 See Ala. Code, Tit. 13A, chs. 6, 7 (2015); Alaska Stat., Tit. 11, chs. 41,
46 (2018); Ark. Code Ann., Tit. 5, subds. 2, 4 (1983); Cal. Penal Code
Ann., pt. 1, Tits. 8, 13 (West Cum. Supp. 2021); Colo. Rev. Stat., Tit. 18,
Arts. 3, 4 (2019); Del. Code Ann., Tit. 11, pt. I, ch. 5, subchs. II, III (2021);
Ga. Code Ann., Tit. 16, chs. 5, 7 (2019); Haw. Rev. Stat., Tit. 37, chs. 707,
708 (2014); Ill. Comp. Stat., ch. 720, Act 5, Tit. III, pts. B, C (West 2018);
Ind. Code, Tit. 35, Arts. 42, 43 (2020); Kan. Stat. Ann., ch. 21, Arts. 54,
58 (2020); La. Rev. Stat. Ann., Tit. 14, ch. 1, pts. 2, 3 (2016); Me. Rev.
Stat. Ann., Tit. 17–A, pt. 2, ch. 9 (2006); Md. Crim. Law Code Ann., Tits.
3, 6 (2012); Mass. Gen. Laws, pt. IV, Tit. 1, chs. 265, 266 (2017); Minn.
Stat., ch. 609 (2020); Miss. Code Ann., Tit. 97, chs. 3, 17 (2020); Mo. Rev.
Stat., Tit. 38, ch. 565 (2016); Mont. Code Ann., Tit. 45, chs. 5, 6 (2020);
8 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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
codes employed similar nomenclature at the time of ACCA’s
amendment in 1986.5
——————
Neb. Rev. Stat., ch. 28, Arts. 3, 5 (2021); Nev. Rev. Stat., Tit. 15, chs. 200,
205 (2017); N. J. Stat. Ann., Tit. 2C, subd. 2, pts. 1, 2 (2019); N. Y. Penal
Law Ann., ch. 40, pt. 3, Tits. H, I (2009); N. C. Gen. Stat. Ann., ch. 14,
subchs. III, V (2019); N. D. Cent. Code Ann., Tit. 12, pts. V, VI (2012);
Okla. Stat., Tit. 21, pts. III, VII (2011); Ore. Rev. Stat., Tit. 16, chs. 163,
164 (2019); S. C. Code Ann., Tit. 16, chs. 3, 11 (2015); Tenn. Code Ann.,
Tit. 39, chs. 13, 14 (2020); Tex. Penal Code Ann., Tits. 5, 7 (West 2021);
Utah Code Ann., Tit. 76, chs. 5, 6 (2017); Va. Code Ann., Tit. 18.2, chs. 4,
5 (2014); W. Va. Code Ann., ch. 61, Arts. 2, 3 (2020); Wis. Stat., chs. 940,
943 (2016); Wyo. Stat. Ann., Tit. 6, chs. 2, 3 (2019).
5 See Ala. Code, Tit. 13A, chs. 6, 7 (1982); Alaska Stat., Tit. 11, chs. 41,
46 (1983); Ark. Code Ann., Tit. 41, Arts. 5, 6 (Cum. Supp. 1985); Cal.
Penal Code Ann., pt. I, Tits. 8, 13 (1984); Colo. Rev. Stat., Tit. 18, Arts.
3, 4 (1986); Del. Code Ann., Tit. 11, pt. 1, ch. 5, subchs. II, III (1979); Ga.
Code Ann., Tit. 16, chs. 5, 7 (1984); Haw. Rev. Stat., Tit. 37, chs. 707, 708
(1985); Ill. Ann. Stat., Tit. III, pts. B, C (West 1980); Ind. Stat. Ann., Tit.
35, Arts. 42, 43 (1985); Kan. Stat. Ann., ch. 21, Arts. 34, 37 (1981); La.
Rev. Stat. Ann., Tit. 14, ch. 1, pts. II, III (West 1986); Me. Rev. Stat. Ann.,
Tit. 17–A, ch. 9 (1983); Mass. Gen. Laws, chs. 265, 266 (1986); Minn.
Stat., ch. 609 (1986); Miss. Code Ann., Tit. 97, chs. 3, 17 (1973); Mo. Rev.
Stat., Tit. 38, ch. 565 (1986); Mont. Code Ann., Tit. 45, chs. 5, 6 (1985);
Neb. Rev. Stat., ch. 28, Arts. 3, 5 (1979); Nev. Rev. Stat., Tit. 15, chs. 200,
205 (1986); N. J. Stat. Ann., Tit. 2C, subd. 2, pts. 1, 2 (1982); N. Y. Penal
Law Ann., ch. 40, pt. 3, Tits. H, I (West 1975); N. C. Gen. Stat. Ann., ch.
14, subchs. III, V (1981); Okla. Stat., Tit. 21, pts. III, VII (1983); Ore.
Rev. Stat., Tit. 16, chs. 163, 164 (1985); Pa. Stat. Ann., Tit. 18, pt. II,
Arts. B, C (Purdon 1983); S. C. Code Ann., Tit. 16, chs. 3, 11 (1985); Tex.
Penal Code Ann., Tits. 5, 7 (West 1984); Utah Code Ann., Tit. 76, chs. 5,
6 (Cum. Supp. 1986); Va. Code Ann., Tit. 18.2, chs. 4, 5 (1982); W. Va.
Code Ann., ch. 61, Arts. 2, 3 (1984); Wis. Stat., chs. 940, 943 (1982); Wyo.
Stat. Ann., Tit. 6, chs. 2, 3 (1983).
Cite as: 593 U. S. ____ (2021) 9
KAVANAUGH, J., dissenting
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
10 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
a serious potential risk of physical injury to another.”
18 U. S. C. §924(e)(2)(B) (emphases added).
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 clause of that definition (the enumerated-offenses clause) lists certain physically risky offenses against property—in particular,
burglary, arson, extortion, and offenses involving the use of
explosives. See Taylor v. United States,
495 U. S. 575, 584–
587 (1990).
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). 18 U. S. C. App. §1202(a) (1982
ed., Supp. II). In 1986, Congress expanded the scope of violent crimes covered under ACCA. Congress added the use-of-force clause so as to encompass not just robbery but also
additional offenses against the person, such as assault,
homicide, and rape. And Congress added the second clause
to encompass not just burglary but also some additional
physically risky offenses against property, including arson,
extortion, and use of explosives.7
——————
6 The words “of another” in the use-of-force clause exclude crimes in-
volving harm to oneself, as opposed to others, and reflect common phraseology in state criminal statutes covering offenses against the person,
such as assault. See, e.g., Tenn. Code Ann. §39–13–102 (aggravated
assault is an assault that, among other things, “[c]auses serious bodily
injury to another”).
7 That understanding of offenses against the person and offenses
Cite as: 593 U. S. ____ (2021) 11
KAVANAUGH, J., dissenting
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 18 U. S. C. §16(a), which defines the term “crime of violence” for purposes of many
other federal criminal and immigration laws. That definition includes any “offense that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.”
Ibid. (emphasis added).
Like ACCA’s use-of-force clause, §16(a)’s “against” phrase
simply specifies the category of offenses to which the statute applies, using established nomenclature. The only difference between the two definitions is that §16(a) covers
——————
against property also helps make more sense of the now-defunct residual
clause. See Johnson,
576 U. S. 591. The residual clause was tacked onto
the clause enumerating the covered offenses against property (burglary,
arson, extortion, and use of explosives). The residual clause covered
crimes that “otherwise involv[e] conduct that presents a serious potential
risk of physical injury to another.”
18 U. S. C. §924(e)(2)(B)(ii). When
still extant, the residual clause could have been read in one of two ways.
On one reading, given its placement with offenses against property, the
residual clause could have been read to encompass other physically risky
offenses against property similar to burglary, arson, extortion, and use
of explosives. A second possible reading (and the common reading when
the residual clause was still in effect) was that the residual clause also
covered some offenses against the person, not just offenses against property. But even assuming that second reading was correct, and that there
was potential overlap between the use-of-force clause and the residual
clause, the solution was not to read the use-of-force clause contrary to its
terms. No one disputes that the use-of-force clause generally covers assault and homicide, among other crimes. The residual clause was merely
residual—a catchall. Therefore, as relevant here, even if assault and
homicide could theoretically have fit under the old residual clause, that
would not negate coverage of assault and homicide under the use-of-force
clause.
12 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
crimes “against property” in addition to crimes “against the
person.”8
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. ___, ___ (2019) (slip op., at 8); see
also Stokeling v. United States,
586 U. S. ___, ___ (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
——————
8 The plurality says that reading ACCA’s “against” phrase to refer to
the category of covered offenses would leave the broader language in statutes like §16(a) “without any function.” Ante, at 12. That is incorrect.
The “against” phrase in statutes like §16(a) clarifies that the statutory
definition encompasses both of those traditional categories of offenses:
offenses against the person and offenses against property.
Cite as: 593 U. S. ____ (2021) 13
KAVANAUGH, J., dissenting
(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. §924(e)(2)(B). By using that language,
Congress incorporated a historically rooted and widely used
nomenclature for classifying crimes, and thus narrowed the
category of offenses to which that clause applies—namely,
to offenses against the person.
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 “use of physical force” otherwise encompasses reckless offenses such as reckless assault and reckless homicide.
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
14 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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., at ___, ___, n. 4 (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
Cite as: 593 U. S. ____ (2021) 15
KAVANAUGH, J., dissenting
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 ___ (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 ___ (slip op., at 7). And
a person who engages in, for example, reckless assault
or reckless homicide generally injures or kills another
person.10
Because the line between knowledge and recklessness
can be thin and because reckless crimes such as reckless
assault and reckless homicide involve a “deliberate decision
to endanger another” that results in injury or death to another person, ibid., the criminal law ordinarily does not
draw the line for criminal liability between intent and
knowledge on the one hand and recklessness on the other.
On the contrary, as the Model Penal Code explains, “[n]o
one has doubted” that a reckless mental state is “properly
the basis for criminal liability.” §2.02, Comment 4, at 243;
see generally Turner, The Mental Element in Crimes at
——————
9 Indeed, a study published in 2011 concluded that individuals had dif-
ficulty “differentiat[ing] between knowing and reckless conduct, even
with the benefit of jury instructions.” Shen, et al., Sorting Guilty Minds,
86 N. Y. U. L. Rev. 1306, 1309 (2011). The authors suggested possibly
“abandoning” the distinction because of the inability of most people to
distinguish the two categories with respect to particular fact patterns.
Ibid.
10 If a state offense labeled as assault did not require that the defend-
ant cause sufficient contact with or injury or death to another person,
such an offense presumably would not involve a “use of physical force”
under ACCA. Of course, it could still constitute a violent felony under
ACCA if the offense entailed the threatened or attempted use of physical
force.
16 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
Common Law, 6 Camb. L. J. 31 (1936).
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
——————
11 See, e.g., Alaska Stat. §11.81.610(b) (1983); Ark. Stat. §41–204(2)
(1977); Del. Code Ann., Tit. 11, §251(b) (1979); Haw. Rev. Stat. §702–204
(1985); 2 Ill. Rev. Stat., ch. 38, ¶¶4–3(a), 4–6 (1985); Kan. Stat. Ann. §21–
5202(a) (2011); N. D. Cent. Code Ann., §12.1–02–02(1)(e), (2) (1985);
Ohio
Rev. Code Ann. §2901.21(B) (Lexis 2014); Pa. Stat. Ann., Tit. 18, §302
(Purdon 1983); Tenn. Code Ann. §39–11–301(c) (Cum. Supp. 1990);
Tex.
Penal Code Ann. §6.02(c) (West 1974); Utah Code Ann. §76–2–102 (Cum.
Supp. 1989).
Cite as: 593 U. S. ____ (2021) 17
KAVANAUGH, J., dissenting
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
In short, in enacting ACCA, “Congress must have known
it was sweeping in some persons who had engaged in reckless conduct.” Voisine, 579 U. S., at ___ (slip op., at 8) (citing
United States v. Bailey,
9 Pet. 238, 256 (1835) (Story, J.)).
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
——————
12 ACCA’s statutory history further supports that conclusion. In 1984,
in the original version of ACCA, Congress included only one offense
against the person: robbery. 18 U. S. C. App. §1202(a) (1982 ed., Supp.
II). ACCA expressly defined robbery as a felony that involves the “taking
of the property of another from the person or presence of another by force
or violence.” §1202(c)(8). At the time, as had been true at common law,
see 4 W. Blackstone, Commentaries on the Laws of England 241–242
(1769), many state statutes defined robbery in a way that did not require
that the defendant have intent or knowledge that his conduct would
cause bodily injury. In 1986, when Congress expanded the number of
violent offenses against the person so as to include crimes such as assault, rape, and homicide in addition to robbery, Congress did not suggest that it suddenly wanted to require intent or knowledge for robbery
offenses. If Congress understood reckless robbery as a taking by force
under the 1984 language, it follows that Congress would naturally also
have understood reckless robbery as the use of physical force against the
person of another under the 1986 statute. And there is no good reason
(textual or otherwise) to think that Congress wanted to include reckless
robbery but to exclude reckless assault and reckless homicide from the
use-of-force clause.
18 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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
——————
13 The plurality also equates “in opposition to” with “targeting.” Ante,
at 8–10. But the plurality cites no dictionaries or similarly authoritative
support for that subtle move in its analysis. The plurality’s equating of
“in opposition to” with “targeting” is seemingly woven out of whole cloth.
14 Indeed, the plurality eventually seems to acknowledge that point.
After dedicating pages to asserting that the ordinary meaning of the
phrase “use of physical force against the person of another” necessarily
requires conduct that is intentionally or knowingly directed at another
person, the plurality concedes that if the word “recklessly” appeared in
ACCA’s use-of-force clause, then that clause would in fact “cover reckless
offenses.” Ante, at 15. That is a surprising acknowledgment. It is hard
to square with the plurality’s suggestion that it is not possible for one to
recklessly use physical force against another person. After all, if the plurality’s ordinary meaning argument were correct, adding the word “recklessly” to the front of the use-of-force clause would seem to render that
clause nonsensical. My reading of the statute avoids that incongruity in
the plurality’s interpretation by recognizing that the phrase “use of physical force against the person of another” encompasses reckless
Cite as: 593 U. S. ____ (2021) 19
KAVANAUGH, J., dissenting
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 ___ (slip op., at 12); see
——————
offenses.
15 For just a few examples, see Almonte v. Hines,
2020 WL 1164657, *2
(SDNY, Mar. 11, 2020) (“Plaintiff had not proved by a preponderance of
the evidence that Hines intentionally or recklessly used excessive force
against Almonte during the arrest”); Evanston Ins. Co. v. Break I, Inc.,
2019 WL 2995507, *7 (ND Ala., July 9, 2019) (“The security guard intentionally or recklessly used force against a person without her consent by
shooting a gun at the male patron and hitting Ms. Beasley”); O’Hara v.
New York,
570 Fed. Appx. 21, 24 (CA2 2014) (“[A] jury could have reasonably found” “that McAvoy intentionally or recklessly used excessive
force against O’Hara”); Whitlock v. Jackson,
754 F. Supp. 1394, 1400 (SD
Ind. 1991) (“[T]he due process claim required a finding that the defendants ‘unreasonably and recklessly used excessive force’ against Gaisor”);
State v. Tyson, 2011–Ohio–4981,
2011 WL 4488955, *6 (Ohio App., Sept.
29, 2011) (“[T]he State was required to prove that appellant recklessly
used or threatened the immediate use of force against Mr. Carter”); State
v. Adams, 2010–Ohio–1942,
2010 WL 1757931, *2 (Ohio App., May 3,
2010) (“[T]he State was required to prove that appellant ‘recklessly used
or threatened the immediate use of force’ against Stoops”); Cook v. State,
2005–0475, p. 3 (La. App. 1 Cir., 2/10/06),
928 So. 2d 589, 591 (“The jury
found that Arton did not intentionally or recklessly use excessive force
against Cook”); David v. State,
123 P. 3d 1099, 1103 (Alaska App. 2005)
(“[A] jury could not convict him of second-degree murder without also
finding that he had used reckless or criminally negligent force against
the victim”).
20 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
also id., at ___ (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 ___ (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.
Lest there be any doubt, keep in mind that we are talking
about reckless offenses such as reckless assault or reckless
homicide where a defendant made a deliberate decision to
endanger another by using force, and as a result injured or
killed someone. Applying ordinary meaning and employing
Cite as: 593 U. S. ____ (2021) 21
KAVANAUGH, J., dissenting
a modicum of common sense, one would say that such a defendant used force against the victim. If an individual fires
a gun recklessly at a house and injures someone inside, that
individual has used force against the victim. If an individual recklessly throws bricks off an overpass and kills a
driver passing underneath, that individual has used force
against the victim. If an individual recklessly drives 80
miles per hour through a neighborhood and kills a child,
that individual has used force against the child. It defies
common sense and the English language to suggest otherwise.
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
22 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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 ___ (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 ___ (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.
…
To sum up, the plurality’s reading of the statutory phrase
“against the person of another” fails for two alternative and
independent reasons. First, that phrase is a term of art
that limits the category of offenses covered by ACCA’s use-of-force clause to those involving force against the person
rather than against property. It does not serve as a roundabout way of heightening the mens rea requirement for violent felonies to intent or knowledge. Second, and in the
alternative, even if the phrase “against the person of another” is not a term of art, the ordinary meaning of that
Cite as: 593 U. S. ____ (2021) 23
KAVANAUGH, J., dissenting
phrase encompasses reckless offenses such as reckless assault and reckless homicide.16
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 §922(g) that bars individuals from possessing firearms if they have been convicted of
a misdemeanor crime of domestic violence. See
18 U. S. C.
§922(g)(9). The statute defines “misdemeanor crime of domestic violence” as a misdemeanor that “has, as an element,
——————
16 The plurality asserts that my two alternative and independent inter-
pretations of the use-of-force clause are “mutually inconsistent.” Ante,
at 12. But the point of alternative arguments is to explain that there
may be two different ways of looking at an issue (which may differ from
one another in certain respects), but that both ways of looking at the
issue lead to the same bottom line. So it is here.
24 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
the use or attempted use of physical force” and was committed against a “victim” who was in a domestic relationship
with the defendant. §921(a)(33)(A); see also Voisine, 579
U. S., at ___ (slip op., at 1).17
The question in Voisine was whether that statutory definition “applies to reckless assaults, as it does to knowing or
intentional ones.”
Id., at ___ (slip op., at 4). The Court held
that the statute applied to reckless assaults.
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 ___ (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 §921(a)(33)(A) does not require that a defendant
intend or know that his conduct will cause harm. Instead,
it is enough that he recklessly employs force—that is, acts
in “conscious disregard” of a “substantial risk of causing
harm.” Id., at ___ (slip op., at 6). For example, a man who
——————
17 Section 921(a)(33)(A) provides in relevant part: “[T]he term ‘misde-
meanor crime of domestic violence’ means an offense that—
“(i) is a misdemeanor under Federal, State, or Tribal law; and
“(ii) has, as an element, the use or attempted use of physical force, or
the threatened use of a deadly weapon, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabiting with or
has cohabited with the victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or guardian of the victim.”
(Footnote omitted.)
Cite as: 593 U. S. ____ (2021) 25
KAVANAUGH, J., dissenting
“throws a plate in anger against the wall near where his
wife is standing” has used force against his wife even if the
man “did not know for certain (or have as an object)” that
“a shard from the plate would ricochet and injure his wife.”
Ibid. It suffices that the man “recognized a substantial
risk” that his forceful act would harm his wife.
Ibid. That
example, the Court explained, illustrated that the statute
was “indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness with respect
to the harmful consequences of his volitional conduct.”
Ibid.
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 ___ (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 §922(g)’s ban on possession of firearms by individuals convicted of certain offenses. Both definitions apply to offenses that have as an
element the “use of physical force.”
The only distinction between those two definitions is that
ACCA employs the phrase “use of physical force against the
person of another” while §921(a)(33)(A) employs the phrase
“use of physical force” and then makes clear that force must
be used against a “victim” who is a domestic relation. But
that distinction makes no difference for mens rea purposes.
The Court in Voisine took as a given that the object of the
26 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
reckless conduct would be another person—the “victim” as
the statute describes it. See id., at ___, ___, ___, ___, ___,
___ (slip op., at 1, 4, 7, 8, 9, 12). Indeed, given that Voisine
involved a domestic violence statute, it would have been unnecessary or even redundant to add the words “against the
person of another” to the statute. After all, a domestic violence offense, such as assault, is necessarily an offense
against the person of another. Recognizing that reality, the
Voisine Court explicitly stated that the “federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use . . . of physical force’ against
a domestic relation.” Id., at ___ (slip op., at 12) (quoting
§921(a)(33)(A); emphasis added); see also id., at ___ (slip
op., at 1).
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
——————
18 To be sure, to avoid a Second Amendment problem, the defendant in
Voisine also argued that the statute at issue there should not be interpreted to prohibit the possession of firearms by someone who had committed a single reckless misdemeanor offense. See 579 U. S., at ___, n. 6
(slip op., at 11, n. 6); see also
id., at ___ (THOMAS, J., dissenting) (slip op.,
at 16). But there is no such constitutional issue lurking in this case. This
case involves a sentencing enhancement, not primary liability, and applies only when the defendant has been convicted of three prior ACCA
violent felonies committed on different occasions and has then committed
a fourth felony by unlawfully possessing firearms.
19 See, e.g., United States v. Burris,
920 F. 3d 942, 951 (CA5 2019);
Cite as: 593 U. S. ____ (2021) 27
KAVANAUGH, J., dissenting
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 ___
(slip op., at 7). Leocal addressed whether a driving-underthe-influence offense that required only a negligent mental
state fell within §16(a)’s definition of “crime of violence.”
The Leocal Court held that it did not. The phrase “use . . .
——————
United States v. Haight,
892 F. 3d 1271, 1280–1281 (CADC 2018); United
States v. Pam,
867 F. 3d 1191, 1207–1208 (CA10 2017); United States v.
Fogg,
836 F. 3d 951, 956 (CA8 2016).
28 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
of physical force against the person or property of another,”
the Court reasoned, is “most naturally” read to suggest “a
higher degree of intent than negligent or merely accidental
conduct.” 543 U. S., at 9 (internal quotation marks omitted). As the Court explained: “While one may, in theory,
actively employ something in an accidental manner, it is
much less natural to say that a person actively employs
physical force against another person by accident.”
Ibid.
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 §16(a). Id., at 13 (emphasis in original).
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 ___ (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
Cite as: 593 U. S. ____ (2021) 29
KAVANAUGH, J., dissenting
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 §16(a)’s “crime of violence” definition is that it requires the “ ‘use . . . of physical force
against the person or property of another.’ ” 543 U. S., at 9
(quoting §16(a); emphasis in original). By the plurality’s
account today, Leocal’s analysis of §16(a)’s “against”
phrase—which was missing from the statute at issue in
Voisine—confirms that ACCA’s materially similar
“against” phrase is the “critical text for deciding the level of
mens rea needed.” Ante, at 21–22 (internal quotation marks
omitted).
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 ___, 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 ___ (slip op., at 7). As Chief Judge Sutton correctly pointed out, Voisine “tellingly placed no weight on the
absence of ‘against the person or property of another’ ” in
distinguishing the statute at issue in Voisine from the statute at issue in Leocal. Verwiebe,
874 F. 3d, at 263. All of
Voisine’s lengthy analysis of Leocal would have been entirely unnecessary if the Voisine Court actually thought
that the phrase “against the person or property of another”
30 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
in the Leocal statute distinguished the statute in Leocal
from the statute in Voisine.
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.” Ibid. (internal quotation marks
——————
20 To reiterate, JUSTICE THOMAS declines to follow Voisine and, in doing
so, provides the fifth vote for the Court’s decision today.
Cite as: 593 U. S. ____ (2021) 31
KAVANAUGH, J., dissenting
omitted).
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. ___, ___ (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 “violent” as
defined in the statute but can be committed with or without
firearms. Contrary to the plurality’s intimations, the statute penalizes “career criminals” who then unlawfully arm
themselves with firearms. The plurality’s subtle reconfiguration of the statutory title for contextual support is off
base.
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
32 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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
Cite as: 593 U. S. ____ (2021) 33
KAVANAUGH, J., dissenting
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 passenger side of his vehicle”
“screaming in pain.”
2008 WL 199851, *2 (Tenn. Crim.
App., Jan. 24, 2008). The accident left the victim “unable
to walk for three months” after the crash.
Ibid. As with the
other sanitized examples the plurality cites today, it strains
credulity to suggest that the drivers in either of those cases
did not use force against their victims—or that they could
not fairly be considered “career criminals” if convicted of
those kinds of violent felonies on three separate occasions.
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
34 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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
Cite as: 593 U. S. ____ (2021) 35
KAVANAUGH, J., dissenting
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-
36 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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 fourhour period, leaving blood on her hands and face, her eyes
——————
21 As the plurality notes, today’s decision should not be construed to
express any view on the application of the use-of-force clause to crimes
requiring a mental state of extreme recklessness. See ante, at 7, n. 4.
In my view, crimes committed with extreme recklessness, such as
depraved-heart murder, should obviously still qualify as predicate offenses under ACCA, even after today’s decision. And indeed, counsel for
Borden forthrightly acknowledged at oral argument that extreme recklessness crimes, such as depraved-heart murder, can still suffice under
ACCA. See Tr. of Oral Arg. 14–15, 19. But the plurality, for some reason,
refuses to even acknowledge that depraved-heart murder is a violent felony. The plurality’s reticence is telling, and that reticence shows just
how far the plurality’s interpretation of this statute has strayed from the
statutory text and basic common sense.
22 See Me. Rev. Stat. Ann., Tit. 17–A, §208 (Cum. Supp. 2021) (aggra-
vated assault); R. I. Gen. Laws §11–5–2 (Supp. 2020) (felony assault);
Utah Code Ann. §76–5–103 (Supp. 2019) (aggravated assault); see also
United States v. Rose,
896 F. 3d 104, 114 (CA1 2018) (although Rhode
Island case law is inconclusive, “it appears possible” that ordinary recklessness suffices for felony assault under R. I. Gen. Law §11–5–2); State
v. Seach,
2021 UT App 22, ¶18,
483 P. 3d 1265, 1271 (Utah Code Ann.
§76–5–103 requires the State to prove that a defendant acted “intentionally, knowingly, or recklessly”).
Cite as: 593 U. S. ____ (2021) 37
KAVANAUGH, J., dissenting
swollen shut, and bite marks all over her body. 557 F. 3d
1019, 1021, n. 2 (CA9 2009). The defendant was convicted
under a state statute that proscribed “ ‘intentionally, knowingly or recklessly’ ” causing “ ‘temporary but substantial
disfigurement.’ ”
Id., at 1021. Under the Court’s decision
today, that offense would not qualify as a violent felony under ACCA.
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.
——————
23 That is to say nothing of the collateral review petitions that will
likely inundate courts in the circuits that relied on Voisine to hold that
ACCA covers reckless offenses. See n. 19, supra. To be clear, defendants
who received an ACCA enhancement based on a reckless felony conviction may not necessarily prevail on collateral review. For example, many
petitions may fall outside §2255’s 1-year statute of limitations. But there
can be little question that many such petitions will be filed.
38 BORDEN v. UNITED STATES
KAVANAUGH, J., dissenting
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.
