Safe Havens

 

(A)  Negligence and Strict Liability.  In Leocal v. Ashcroft,[416] the United States Supreme Court unanimously held that a Florida conviction for driving under the influence causing serious bodily injury[417] did not constitute an aggravated felony as a crime of violence,[418] for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense under either 18 U.S.C. § 16(a) or (b).  In doing so, the Court pointed out that Congress had distinguished between a crime of violence and a DUI offense “involv[ing] personal injury to another,” when it listed them separately in INA § § 101(h)(2), (3), 8 U.S.C. § § 1101(h)(2), (3) as alternative definitions of “serious criminal offense” for purposes of triggering inadmissibility for a noncitizen who had committed such an offense and exercised diplomatic immunity from prosecution.[419]  Since most states’ DUI offenses either require no mens rea at all, or mere negligence, a DUI conviction will generally not qualify as a COV aggravated felony for deportation purposes or for purposes of enhancing the sentence for illegal re-entry after deportation.

 

            The court employed common-sense interpretation of the words of the statute:

The critical aspect of § 16(a) is that a crime of violence is one involving the “use . . . of physical force against the person or property of another.” (Emphasis added.) As we said in a similar context in Bailey, “use” requires active employment.  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. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.  The key phrase in § 16(a)--the “use . . . of physical force against the person or property of another”--most naturally suggests a higher degree of intent than negligent or merely accidental conduct.  Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).[420] 

 

Although recognizing that the coverage of § 16(b) is broader than that of § 16(a), the court applied the same common-sense interpretation to find that § 16(b) does not include all negligent conduct, but only “offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.  The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime.”[421]  Under this interpretation, the risk is not that in committing an offense a person will be injured or property damaged.  Instead, the risk is that in the course of committing the offense, the actor will be required to apply violent force to the person or property of another.  Applying this analysis to DUI offenses, the court concluded that “[t]he risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may ‘use’ physical force against another in committing the DUI offense.”[422]

The rationale of this decision — that an offense must involve a mens rea greater than strict liability or negligence to qualify as an aggravated felony crime of violence — applies to any criminal offense.  There is a powerful argument that the statute requires intentional use of force.  If this argument prevails, an offense that requires mere gross negligence or reckless conduct will also fail to come within the aggravated felony crime of violence definition.

           

            The court also reaffirmed the necessity to analyze the elements of the offense of conviction, rather than look to the facts of the conduct involved:  “This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.”[423]

           

            The court distinguished between the mental state required by the essential elements of the offense of conviction and different elements requiring causation of injury.[424]

 

            The courts of appeals are applying this reasoning to hold that other offenses that allow conviction for merely negligent conduct cannot be considered crimes of violence under the aggravated felony definition.[425]  For example, the Oregon assault statute includes a negligence prong. If a noncitizen has been convicted under this prong, or if the record of conviction is not clear, the offense is not a crime of violence or domestic violence.  In United States v. Trinidad-Aquino,[426] the Ninth Circuit held that a person cannot negligently “use” force.  The “use of force” or the risk there of requires a certain level of volition which may include recklessness, but does not extend to a negligent mens rea, and therefore a negligently committed assault cannot be an aggravated felony crime of violence.

[416] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (November 9, 2004).

[417] Florida Stats. Ann. § 316.193(3)(c).

[418] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[419] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, at 384 (November 9, 2004) citing INA § 212(a)(2)(E), 8 U.S.C. § 1182(a)(2)(E).

[420] Id. at 382 (internal citations omitted).

[421] Id., at 383.

[422] Id., at 383 n.7.

[423] Id. at 381.

[424] Id. at 382.

[425] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. January 12, 2005) (California conviction of evading an officer, in violation of Vehicle Code § 2800.2(a), was not a crime of violence, within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), because the statute and charge were both overbroad with respect to the definition of a crime of violence by encompassing merely negligent conduct).

[426] United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).