Yes, murder is a crime of violence

Randly Begay accused his girlfriend of cheating on him with one Roderick Ben. After Begay told both he was "not scared to go to prison for life," he fatally shot Ben in the head. Last week, the 9th U.S. Circuit Court of Appeals concluded this was not a "crime of violence." U.S. v. Begay, 2019 DJDAR 7863 (Aug. 19, 2019).

The law imposes additional penalties for using, brandishing or discharging a firearm during a crime of violence, defined as one having as an "element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. Section 924(c)(1)(A). Fatally shooting someone in the head would seem to involve the use of force against another. The 9th Circuit found otherwise because it conflated the mens rea required for conduct and for consequences.

It relied on its precedent holding that shooting at an inhabited dwelling or vehicle (Cal Penal Code, Section 246) is not violent, because the shooter did not intend to achieve the consequence of hitting an inhabited dwelling or vehicle: "[W]e can gather with certainty only that Covarrubias intentionally discharged a gun with reckless disregard as to whether the bullet would hit an inhabited vehicle or dwelling." Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011) (emphasis added). Begay observed one could commit second-degree murder similarly (shooting into an occupied room and hitting someone) and this would be no more "intentional" (as to consequence) than the Section 246 violation already deemed nonviolent. Begay thus conflated the conduct (shooting), which must be intentional, with the consequence (hitting the vehicle or dwelling), for which reckless disregard suffices. (See also Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc): "[S]ubjective awareness of possible injury [consequence] is not the same as the intentional use of physical force against the person of another [conduct]." But they can -- and often do -- coexist.

The U.S. Supreme Court later clarified that a defendant must intend only the conduct, not the consequence. Voisine v. United States, 136 S. Ct. 2272 (2016). Conduct must be volitional; an "involuntary motion" (e.g., spasm or somnambulism) is not a use of force. But the resulting application of force against the victim need not be desired, or even expected to occur. "[If] a person throws a plate in anger against the wall near where his wife is standing ... That hurl counts as a "use" of force even if the husband did not know for certain (or have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife." The Supreme Court thus indicated Covarrubias was wrong; intentionally discharging a gun at a dwelling/vehicle/person is a crime of violence, even if the shooter does not intend or know someone (or thing) will be hit.

California distinguishes between "general intent" and "specific intent." People v. Hood, 1 Cal. 3d 444 (1969). General intent exists when a defendant "intended to do the proscribed act," whereas specific intent involves an "intent to ... achieve some additional consequence." Voisine confirmed that crimes of violence involve a general intent to do the act (throw the plate, fire a gun), but not necessarily a specific intent (to injure a person/property).

"Unintentional" second-degree murder, often described as "depraved heart," "extreme indifference," or "implied malice," requires an intent to do a proscribed act: "[T]he mens rea for extreme indifference murder -- intentionally engaging in conduct which creates a grave risk of death -- was not bottomed in the result of the act but in the conduct. ... extreme indifference murder, in other words, while not requiring a conscious object to kill, necessitates a conscious object to engage in conduct that creates a grave risk of death to another. ... the culpability element of extreme indifference murder is akin to what traditionally has been known as 'general intent.' " People v. Castro, 657 P.2d 932 (Colo. 1983) (emphasis added). Federal law likewise requires an intent to do the act if not achieve the result: "[T]o support a conviction for either first or second degree murder, the government need only prove that Shaw intended to shoot at the passing car with a 'heart ... without regard for the life and safety of others.' " U.S. v. Hicks, 389 F.3d 514 (5th Cir. 2004) (emphasis added).

Technically, Begay concerned Section 924(c)(1)(A), which enhances the sentence for violent crimes committed with a firearm, whereas Voisine concerned Section 922(g)(9), which proscribes gun possession by anyone formerly convicted of misdemeanor domestic violence, also defined to involve a "use of force." But the contrast warrants a more inclusive reach for Section 924. Determining whether a past crime was violent reviews a cold record, so courts take the "categorical approach," examining only the crime's elements, not what the defendant actually did. But Section 924(c)(1)(A) concerns the instant case being prosecuted; rather than read the record, courts -- or juries -- can specifically decide the section 924 enhancement as they decide the defendant's underlying guilt. U.S. v. Checora, 155 F.Supp.3d 1192 (D. Utah 2015).

Even 9th Circuit precedents compel finding that second-degree murder is a crime of violence. Depraved heart murder requires a greater mental state than California's aggravated assault (Pen. Code Section 245(a)(1)), which requires "an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." People v. Williams, 26 Cal. 4th 779 (2001). The assault defendant must be aware of the facts that would lead a reasonable person to perceive the probability of a battery, but need not subjectively realize a battery might occur. Implied malice murder in California likewise requires a "deliberately performed" dangerous act, but the defendant must also know his conduct endangers another and act[] with conscious disregard for life." People v. Knoller, 41 Cal. 4th 139 (2007). And he must proximately cause death. The 9th Circuit has found assault with a deadly weapon is a crime of violence. U.S. v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018). A fortiori, so is second-degree murder.

Though crimes of violence must include an intentional use of force, all depraved-heart murders do, as implied malice requires "an intentional act that ha[s] a high probability of resulting in death." Pollard v. White, 119 F.3d 1430 (9th Cir. 1998). The 9th Circuit has therefore indicated more than once that second-degree murder is a crime of violence. U.S. v. J.J., 704 F.3d 1219 (9th Cir. 2013); see also U.S. v. Begay, 567 F.3d 540 (9th Cir, 2009), rev'd on other grounds, 673 F.3d 1038 (9th Cir. 2011) (en banc): "Both first and second degree murder constitute crimes of violence. See 18 U.S.C. § 924(c)(3)."

As Judge N. Randy Smith's dissent observed in, Begay committed three predicate crimes that qualify as crimes of violence under 9th Circuit law: assault, brandishing a weapon in a vehicle, and criminal threats. It makes no sense to hold that showing a gun and threatening to use it are crimes of violence but actually firing at the victim's head is not.

It makes even less sense after the U.S. Supreme Court held in Voisine that misdemeanor assault is a crime of violence. Unfortunately, Voisine referenced "reckless assaults," as well as "knowing" and "intentional" ones, without distinguishing conduct from consequences. But it was clear that those three mentes reae concerned the consequence: there is a use of force regardless of "whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct. (Emphasis added.)

In determing murder is not a crime of violence because it requires only an intent to do the dangerous act but not to achieve the fatal consequence, Begay invests a "specific intent to kill" with an indispensability the Supreme Court has rejected -- even as a condition for capital punishment. "A narrow focus on ... whether or not the given defendant 'intended to kill,' however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. ... The reckless indifference to the value of human life may be every bit as shocking to the moral sense as an 'intent to kill.' " Tison v. Arizona, 481 U.S. 137, 157 (1987). Such wanton killings may present more danger to the public than intentional ones, and may be even more important to prevent. Keiter, "With Malice Toward All," 38 U.S.F.L. Rev. 261 (2004).

Begay appears to be the first case nationwide to decide murder is not a crime of violence. It creates a direct conflict with the 4th Circuit, which reasonably considered murder a "quintessential crime of violence." In re Irby, 858 F.3d 231, 237 (4th Cir. 2017) (see cases collected therein). If the Supreme Court finds the 9th Circuit has misconstrued its precedents, it will not be the first time. 