(B)  Gross Negligence.  Leocal held that negligence was an insufficient mens rea to qualify as an aggravated felony crime of violence for removal purposes, because there was insufficient intent to use force.  The same logically holds true for gross (or criminal) negligence, since it still constitutes negligence: the absence of any actual intent to use force.  The defendant is still stumbling, and the use of force is still accidental.

 

                In Park v. INS, [483] the Ninth Circuit had previously found that the mens rea of criminal negligence, defined as “aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or in other words, a disregard for human life or an indifference to consequences . . . .” was sufficient to show a substantial risk that force would be used in the commission of an offense, as required under 18 U.S.C. § 16(b).  The court had found this definition of criminal negligence to be “no less culpable than recklessness under Arizona law.”[484]

 

                In Lara-Cazarez v. Gonzalez,[485] the Ninth Circuit withdrew from Park and other decisions, finding that an offense committed with gross negligence could not be considered a crime of violence in light of Leocal, finding that “[g]ross negligence is still negligence, however flagrant, and does not constitute the kind of active employment of force against another that Leocal requires for a crime of violence.”[486]

               

                As traditionally understood, the distinction between gross (or criminal) negligence and recklessness “is that criminal negligence requires only a failure to perceive a risk, as compared to the recklessness requirement of an awareness and conscious disregard of the risk.”[487]  Some states, however, seem to define gross or criminal negligence in a way that more resembles recklessness.[488]

 

[483] Park v. INS, 252 F.3d 1018 (9th Cir. 2001) (involuntary manslaughter committed with criminal negligence is a crime of violence).

[484] Ariz.Rev.Stat. § 13-105 (“‘Recklessly’ means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.”). 

[485] Lara-Cazarez v. Gonzalez, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16, and so does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v. INS, 252 F.3d 1018 (9th Cir. 2001), and cases therein cited as no longer good law in light of Leocal v Ashcroft, 125 S.Ct. 377 (2004).  See also United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. May 30, 2006) (California conviction for vehicular manslaughter, in violation of California Penal Code § 191.5(a) is not an aggravated felony crime of violence, in light of Leocal, for immigration purposes).

[486] Lara-Cazarez v. Gonzalez, 408 F.3d at 1221 (emphasis in original).

[487] In re William G, 192 Ariz. 208, 963 P.2d 287, 292 n. 1 (Ct. App. 1997); accord 1 Charles E. Torcia, Wharton’s Criminal Law § 27 (15th ed. 1993).

[488] See § 20.18, infra.

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " INTENT
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (an offense that may be committed recklessly may still be considered an aggravated felony crime of violence under 18 U.S.C. 16(b)).

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER WANTON OR RECKLESS THEORY CONSTITUTED CRIME OF VIOLENCE UNDER 16(b) SINCE IT HAS A SUBSTANTIAL RISK THE DEFENDANT WILL USE FORCE TO COMMIT THE OFFENSE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under the wanton or reckless theory of assault, constitutes a crime of violence under 18 U.S.C. 16(b), since it offers a substantial risk the defendant will use force to commit the offense; the court found that Massachusetts law required physical or bodily injury to convict).

Third Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " RECKLESS MENS REA DOES NOT NECESSARILY BAR CRIME OF VIOLENCE UNDER 18 U.S.C. 16(b)
Aguilar v. Attorney General of the U.S., ___ F.3d ___, 2011 WL 5925141 (3d Cir. Nov. 29, 2011) (Pennsylvania conviction of sexual assault, under 18 Pa. Cons.Stat. 3124.1, constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though the offense has a minimum mens rea of recklessness; because sexual assault raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under 16(b).).

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Constante, 544 F.3d 584 (5th Cir. Oct. 6, 2008) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3) [enters a building or habitation and commits or attempts to commit a felony, theft, or an assault] did not constitute a crime of violence for ACCA purposes where statute of conviction does not require specific intent).