In August of 2019, the Ninth Circuit held in United States v. Begay that second-degree murder was not a “crime of violence.” You read that right. Second-degree murder is categorically not a crime of violence.
In 2013, Randly Begay was arguing in a car with his then girlfriend, Meghan Williams, regarding rumors that she was cheating on him with Roderick Ben. While Ben was in the car, Begay took out his gun and laid it on his leg. Begay continued to argue with Williams and then shot Ben in the head, stating he was not scared to go to prison for life. Subsequently, Begay was charged with and convicted of murder in the second degree and discharging a firearm during a crime of violence. The trial court sentenced Begay to a total of 324 months in prison.
On review, the Ninth Circuit applied a categorical approach to determine if second-degree murder is a crime of violence. Under the categorical approach, the court looks at the elements, not the underlying facts, to determine if a conviction constitutes a crime of violence. A conviction is categorically not a crime of violence when the conviction’s statute prohibition is broader than the crime of violence statutory definition.
First, the conviction. The Ninth Circuit Model Jury Instructions for second-degree murder instruct juries that second-degree murder can be committed with a mental state of “malice aforethought.” Malice aforethought includes an intentional mental state or a depraved heart mental state (such as reckless indifference). While depraved heart does not require intentional or willful conduct, it remains sufficient for second-degree murder.
Second, the definition of a crime of violence. Under 18 U.S.C. § 924(c)(3)(A), a “crime of violence” is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” which is essentially the same definition in 18 U.S.C. § 6. Regardless of the definition used, a crime of violence requires purposeful conduct.
Since second-degree murder can be committed recklessly, which is broader than the definition of a crime of violence, second-degree murder punishes conduct that is not purposeful and is not considered a crime of violence under the categorical approach.
On the other hand, Judge Smith notes this application of the categorical approach does not follow precedent and does not follow logic.
First, precedent cited by Judge Smith supports the proposition that negligent or mere reckless acts do not constitute crimes of violence, but a heightened recklessness standard could—especially when the standard is a depraved heart. Phrased another way, malice aforethought should be interpreted to cover intentional conduct to kill, cause serious bodily injury, or commit a felony and intentional conduct “that had a high probability of resulting in death” (the heightened recklessness standard).
Second, malice aforethought is an essential element in both second-degree and first-degree murder. Why should murder not be a crime of violence while battery, assault, exhibiting a firearm, criminal threats, and mailing communication are crimes of violence? It does not make sense for attempted murder to be covered and the actual act of killing to not.
Why does this matter?
One of the main goals of the criminal justice system is to deter dangerous behavior. The use of firearms is a dangerous activity, especially the use of a firearm during other illegal behavior. The Ninth Circuit’s new rule hinders the national policy of deterring the use of firearms during illegal behavior. Under Section 924(c), it is a crime to discharge a firearm during the commission of a crime of violence. If one of the most serious crimes, murder, cannot be considered a crime of violence, then the role of this statute is severely limited, perhaps obsolete.
A review of this decision by the Supreme Court of the United States is necessary to determine if the Ninth Circuit’s application of the categorical approach is improper. If the Court determines the application is proper, Congress will need to create a new mechanism to ensure the use of firearms during the commission of a felony is deterred by the criminal justice system.
SOURCES: 18 U.S.C. § 924(c); 18 U.S.C. § 16; United States v. Begay, 934 F.3d 1033 (9th Cir. 2019); Ninth Circuit Model Criminal Jury Instructions;
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.