Reply Brief — Gerald Scott, Petitioner v. United States

No. 20-7778

______________________________________________________________________________

______________________________________________________________________________

In the

Supreme Court of the United States

____________________________________

Gerald Scott,

v.

Petitioner,

United States of America,

Respondent.

______________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Matthew B. Larsen

Counsel of Record

Federal Defenders of New York

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

(212) 417–8725

Matthew_Larsen@fd.org

Counsel for Petitioner

______________________________________________________________________________

______________________________________________________________________________

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................... 1

DISCUSSION ................................................................................................................ 2

I.

The Circuits Are Decisively Split Over this Recurring Question ..................... 2

II.

Borden is the Latest Repudiation of the Second Circuit’s View ....................... 7

CONCLUSION............................................................................................................. 15

i

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Bailey v. United States,

516 U.S. 137 (1995).................................................................................................... 8

Borden v. United States,

141 S. Ct. 1817 (2021)...................................................................................... passim

Chambers v. United States,

555 U.S. 122 (2009)........................................................................................ 9, 13, 15

Dunlap v. United States,

784 F. App’x 379 (6th Cir. 2019) ............................................................................... 5

Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17,

531 U.S. 57 (2000)................................................................................................... 5-6

Jerome v. United States,

318 U.S. 101 (1943).................................................................................................... 2

Johnson v. United States,

559 U.S. 133 (2010)................................................................................................ 5, 8

Johnson v. United States,

576 U.S. 591 (2015).............................................................................................. 2, 14

Johnson v. United States,

2d Cir. 21-481 ............................................................................................................ 2

Leocal v. Ashcroft,

543 U.S. 1 (2004).............................................................................................. passim

Michigan v. Long,

463 U.S. 1032 (1983).................................................................................................. 2

Sessions v. Dimaya,

138 S. Ct. 1204 (2018).............................................................................................. 14

Smith v. United States,

508 U.S. 223 (1993).................................................................................................... 9

ii

TABLE OF AUTHORITIES (cont.)

Page(s)

Stokeling v. United States,

139 S. Ct. 544 (2019) ........................................................................................... 9, 10

United States v. Burris,

912 F.3d 386 (6th Cir. 2019) .................................................................................. 4-5

United States v. Castleman,

572 U.S. 157 (2014)......................................................................................... 3, 10-12

United States v. Harris,

3d Cir. 17-1861 ...................................................................................................... 1, 3

United States v. Lanier,

520 U.S. 259 (1997).................................................................................................. 15

United States v. Laurico-Yeno,

590 F.3d 818 (9th Cir. 2010) ..................................................................................... 6

United States v. Martinez-Rodriguez,

857 F.3d 282 (5th Cir. 2017) ..................................................................................... 4

United States v. Mayo,

901 F.3d 218 (3d Cir. 2018) ........................................................................... 1, 3, 4, 5

United States v. Padilla (Angel),

2021 WL 3056292 (S.D.N.Y. 2021). .......................................................................... 2

United States v. Padilla (Eladio),

2d Cir. 21-978 ............................................................................................................ 2

United States v. Resendiz-Moreno,

705 F.3d 203 (5th Cir. 2013) .................................................................................. 3-4

United States v. Reyes-Contreras,

910 F.3d 169 (5th Cir. 2018) ..................................................................................... 4

United States v. Rumley,

952 F.3d 538 (4th Cir. 2020) .......................................................................... 6, 11-12

United States v. Taylor,

873 F.3d 476 (5th Cir. 2017) ..................................................................................... 4

iii

TABLE OF AUTHORITIES (cont.)

Page(s)

United States v. Trevino-Trevino,

178 F. App’x 701 (9th Cir. 2006) ............................................................................... 5

United States v. Verwiebe,

874 F.3d 258 (6th Cir. 2017) ..................................................................................... 5

Voisine v. United States,

136 S. Ct. 2272 (2016).................................................................................. 7, 8, 9, 10

State Cases

People v. Steinberg,

79 N.Y.2d 673 (1992) ............................................................................................... 13

People v. Wong,

81 N.Y.2d 600 (1993) ............................................................................................... 13

Other Authorities

Baez-Martinez v. United States,

Sup. Ct. 20-5075, Petition for a Writ of Certiorari................................................... 6

United States v. Taylor,

Sup. Ct. 20-1459, Reply Brief for United States ...................................................... 3

iv

INTRODUCTION

Two developments since Scott filed his petition confirm the need to resolve

the split over whether crimes of physical inaction require the “use of physical force

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

First, the Third Circuit has made certain the “conflict on the question” here

will “persist.” Brief for the United States in Opposition (“BIO”) at 18. The

government had claimed the split could dissipate if the en banc circuit overruled

United States v. Mayo, 901 F.3d 218 (3d Cir. 2018), which holds that causing “injury

without any affirmative use of force [does not] satisfy” the clause here. Id. at 228.

But rather than scuttle Mayo as the government asked, see United States v. Harris,

3d Cir. 17-1861, Brief for the United States (Aug. 27, 2018) at 16-30, the circuit has

vacated the en banc proceedings that imperiled it. See id., Order of Sept. 17, 2021.

Thus Mayo, and this split, are here to stay.

Second, this Court decided Borden v. United States, 141 S. Ct. 1817 (2021), in

which all the Justices agreed the clause here requires physical action. This guts the

Second Circuit’s premise that “a defendant’s use of force does not depend on his own

actions in initiating or applying injurious force.” Pet. App. 8a. Borden is the latest

confirmation that physical inaction is no “use of physical force against” anyone.

What we have here, then, is a stubborn split where one side is plainly wrong.

Eleven circuits have weighed in (four en banc), and the stakes are immense:

whether a whole class of crimes fits this ubiquitous clause, which will determine if

people face consequences like deportation and years-longer prison sentences or not.

Certiorari is warranted.

1

DISCUSSION

I.

The Circuits Are Decisively Split Over this Recurring Question

“[I]t cannot be doubted that there is an important need for uniformity in

federal law.” Michigan v. Long, 463 U.S. 1032, 1040 (1983). But there’s no

uniformity in the application of the clause here, which arises daily: people convicted

of crimes like Scott’s will face consequences such as a 15-year mandatory minimum

(§ 924(e)(2)(B)(i)), a far higher Sentencing Guidelines range (U.S.S.G. § 4B1.2(a)(1)),

a consecutive sentence of at least 5 years (§ 924(c)(3)(A)), and deportation (§ 16(a)) –

or not – based solely on where in the country their cases are litigated. 1

But as “the application of federal legislation is nationwide,” Jerome v. United

States, 318 U.S. 101, 104 (1943), there can be only one answer to the question here.

And courts – including, tellingly, the Second Circuit – are waiting. “Given the

pronounced divisions in the Second Circuit’s en banc decision,” and the pronounced

circuit split, “there is reason to think that certiorari may be granted.” United States

v. Angel Padilla, 2021 WL 3056292, at *5 (S.D.N.Y. 2021) (staying that case for this

one). See also, e.g., Eladio Padilla v. United States, 2d Cir. 21-978, Docket Entry 30

(same); Johnson v. United States, 2d Cir. 21-481, Docket Entry 40 (same).

Indeed, Johnson v. United States, 576 U.S. 591 (2015), has led to several

lower-court disputes this Court has had to resolve. And “more are likely to follow.”

Borden, 141 S. Ct. at 1835 n.2 (Thomas, J., concurring). Here we are.

If the district court has to “reinstate Scott’s original sentence” of 22 years,

Pet. App. 54a, then he – who was released on January 5, 2018, is now 56, and has

lived without incident since his release – would have to go back to jail for 11 years.

2

1

The government acknowledges this split: “Almost every court of appeals that

has considered the issue after Castleman has recognized that a crime that can be

committed by omission may qualify . . . under the [] clause” here. BIO at 17.

One of the contrary courts is the Third Circuit, however, which just decided it

will not “revisit the holding of Mayo.” Id. at 18. The chance for that was Harris, an

en banc case involving crimes of recklessness and inaction in which the government

asked the circuit to overrule Mayo. But rather than do so, the circuit dissolved the

en banc case “[i]n light of Borden” and sent Harris back to the 3-judge panel for

adjudication per Borden and circuit law: Mayo. See Harris, Order of Sept. 17, 2021.

This now “indisputable circuit conflict” would warrant certiorari even if the

Third Circuit were alone. Reply Brief for United States at 1, United States v.

Taylor, No. 20-1459. For example, review has been granted to resolve a “5-1” split

over whether one crime fits § 924(c)(3)(A)’s iteration of the clause here. Id. at 5.

The question whether crimes of omission fit this clause is likewise weighty,

and the Third Circuit is not alone: the Fifth, Sixth and Ninth Circuits agree with it.

(The Fourth Circuit is itself split, see Pet. 12-13). The circuits on the other side –

the First, Second, Seventh, Eighth, Tenth and Eleventh – say a single line in United

States v. Castleman, 572 U.S. 157 (2014), “Compels the Conclusion” that crimes of

omission fit the clause if injury results. Pet. App. 27a. See also Pet. 13-14.

But, the government admits, “Castleman did not decide the omission issue.”

BIO at 19. As such, the en banc Fifth Circuit did not disturb its prior ruling that

the “‘use of physical force’ is not necessary to . . . inflict excessive pain upon a child

3

by depriving the child of medicine or by some other act of omission.” United States

v. Resendiz-Moreno, 705 F.3d 203, 205 (5th Cir. 2013). “Castleman does not address

whether an omission, standing alone, can constitute the use of force.” United States

v. Reyes-Contreras, 910 F.3d 169, 181 n.25 (5th Cir. 2018) (en banc). The law of the

Fifth Circuit – like that of the Third – is thus “settled.” BIO at 19. As “Castleman

does not address” this issue, Reyes-Contreras, 910 F.3d at 181 n.25, the circuit has

reaffirmed, post-Castleman, that “causing injury to a child . . . is not categorically a

crime of violence . . . because [it] may be committed by both acts and omissions.”

United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017). See United

States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017) (“[U]nder Martinez-Rodriguez,

Texas’s injury-to-a-child offense is broader than the ACCA’s elements clause.”). 2

The Sixth Circuit also holds (also en banc) that a “‘failure to act’ to prevent

serious physical harm to a victim when the defendant has a legal duty to do so” is a

crime committed “without any ‘physical force’” and is thus “too broad” to fit the

clause here. United States v. Burris, 912 F.3d 386, 398-99 (6th Cir. 2019) (en banc).

The government says the crimes in Burris didn’t fit “because they could be

committed by causing ‘certain serious mental harms without using physical force.’”

BIO at 19 (quoting Burris, 912 F.3d at 399). Yet the “without using physical force”

part is what mattered. Besides “mental harms,” the case involved a mother’s

This additional split – over whether Castleman “Compels” the answer here,

Pet. App. 27a, or “avowedly did not contemplate the question,” Mayo, 901 F.3d at

228 – is additional reason to grant Scott’s petition. The circuits are divided over

both the inaction question and whether Castleman answers it. These two conflicts

can be resolved at once by deciding this case.

4

2

“failure to protect each child from physical and sexual abuse.” Burris, 912 F.3d at

399. The court explained that, because she “did not have any physical contact with”

two of the abused children, she committed that failure-to-protect crime “without any

‘physical force.’” Id. The government calls this “‘dictum,’” BIO at 20 (quoting a

concurrence), but the court didn’t see it that way, and its view that the clause here

requires “physical contact” is in lockstep with Sixth Circuit (and this Court’s) cases.

See United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (“A defendant uses

physical force whenever his volitional act sets into motion a series of events that

results in the application of a ‘force.’”) (quoting Johnson v. United States, 559 U.S.

133, 140 (2010)) (abrogated on other grounds by Borden); Leocal v. Ashcroft, 543

U.S. 1, 11 (2004) (The clause here requires force to “actually be applied.”). The

circuit has even cited Mayo in ruling that “failing to protect a child is not in itself a

violent felony.” Dunlap v. United States, 784 F. App’x 379, 389 (6th Cir. 2019).

The Ninth Circuit also agrees: As “one cannot . . . use force against another in

failing to do something,” a manslaughter offense requires no “‘use of physical force

against the person of another,’ because a defendant can be convicted of [it] for an

omission.” United States v. Trevino-Trevino, 178 F. App’x 701, 703 (9th Cir. 2006).

True, that ruling was not issued “after Castleman.” BIO at 17. But as the

government implicitly admits, it makes no sense to use that case as a dividing line:

“Castleman did not decide the omission issue.” Id. at 19. Also true, the circuit’s

decision is “not precedent.” Id. at 20. Yet that makes no difference here, see, e.g.,

Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57,

5

61 (2000) (citing “unpublished” ruling among those in circuit split), and, as with

Burris, the Ninth Circuit’s ruling matches its (and this Court’s) precedents. See

United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010) (An offense must

“be in the category of ‘violent, active crimes’ before it can qualify” under this clause,

so a crime requiring “‘application of force on the victim by the defendant’” qualifies.)

(quoting Leocal, 543 U.S. at 11, and a state court ruling).

As for the circuits on its side, the government notes “this Court has declined

to grant review.” BIO at 17. But the early denials are explained by the lack of

percolation— which isn’t said to be lacking now that 11 of the 12 circuits (including

four en banc) have weighed in. See Pet. 10-14. And the recent cases either posed a

different question, see Baez-Martinez v. United States, No. 20-5075, Petition at i

(“Whether crimes that may be committed recklessly with a depraved heart mens rea

. . . can qualify as a ‘violent felony’”), or had vehicle problems— which aren’t present

in this case. See United States v. Rumley, 952 F.3d 538, 551 (4th Cir. 2020) (“‘There

must be a realistic probability’ . . . that the described conduct would be prosecuted

under the statute. And Rumley has not made this showing.”) (citations omitted).

In sum, “Castleman did not decide the omission issue,” BIO at 19, which has

divided 11 circuits and been debated exhaustively— most recently in the 120 pages

of dueling opinions in the en banc court below. Because the split here will not

dissipate, a resolution is needed to end the opposing answers to this recurring,

highly consequential question. Scott’s case, which presents the issue squarely and

has no vehicle problems, is the means of doing so.

6

II.

Borden is the Latest Repudiation of the Second Circuit’s View

This Court’s decision in Borden, issued after Scott filed his petition, is the

most recent rejection of the Second Circuit majority’s view: all the Justices agreed

the clause here requires physical action.

The four-Justice plurality: The clause “demands that the perpetrator direct

his action at, or target, another individual.” Borden, 141 S. Ct. at 1825. He must

have “deployed” or “directed force at another.” Id. at 1827. The clause reaches only

a “narrow ‘category of violent, active crimes.’” Id. at 1830 (citation omitted). “[I]t

captures [] ‘violent, active’ conduct alone,” namely conduct constituting an “active

employment of force against another person.” Id. at 1834 (citation omitted).

Justice Thomas: “As I have explained before, . . . the ‘use of physical force’ [is

a] phrase [that] ‘has a well-understood meaning applying only to intentional acts.’”

Id. at 1835 (Thomas, J., concurring) (quoting Voisine v. United States, 136 S. Ct.

2272, 2279, 2290 (2016) (Thomas, J., dissenting)). “When a person talks about

‘using force’ against another, one thinks of intentional acts— punching, kicking,

shoving, or using a weapon.” Voisine, 136 S. Ct. at 2284 (Thomas, J., dissenting).

“In my view, a ‘use of physical force’ most naturally refers to cases where a person

intentionally creates force and intentionally applies that force against a [person].”

Id. at 2285. Thus, “when an individual does not engage in any violence against

persons . . . there is no ‘use’ of physical force.” Id. at 2287.

And the dissent: The text “‘limits the scope’ of the use-of-force clause to

‘crimes involving force applied to another person.’” Borden, 141 S. Ct. at 1839

7

(Kavanaugh, J., dissenting) (citation omitted). The “word ‘against’ is often defined

to mean ‘mak[ing] contact with.’ That is the logical meaning of ‘against’ in the

context of ACCA’s use-of-force clause.” Id. at 1846 (citation omitted).

Accordingly, someone who sits and watches his charge suffer a heart attack,

slide below the water in a bathtub, or swallow a handful of allergy-inducing

peanuts, engages in no “active employment of force against [that] person.” Id. at

1834 (plurality op.). “The ‘use of physical force,’ as Voisine held, means the

‘volitional’ or ‘active’ employment of force.” Id. at 1825 (citing Voisine, 136 S. Ct. at

2279-81). Yet the heart attack, bathwater and peanuts, as with “waves crashing

against the shore,” id. at 1826, “have no volition— and indeed, cannot naturally be

said to ‘use force.’” Id. Nor has the caregiver used those forces “against” his charge:

he has not “direct[ed] any action at,” id. at 1825, or “deployed” force against anyone.

Id. at 1827. His inaction entails no “force applied to another,” id. at 1839

(Kavanaugh, J., dissenting), and no “mak[ing] contact with” anybody. Id. at 1846.

He neither “creates [any] force” nor “applies [any] force.” Voisine, 136 S. Ct. at 2285

(Thomas, J., dissenting). His passivity, though criminal, is not an “act[] of violence.”

Id. at 2284. And as he “does not engage in any violence against [his charge] . . .

there is no ‘use’ of physical force.” Id. at 2287. His crime is outside the clause here.

Borden follows a long line of this Court’s rulings on that clause— all of which

have limited it to “violent, active crimes,” Leocal, 543 U.S. at 11, requiring a

“physical act” of force “exerted upon” or “directed against a person.” Johnson, 559

U.S. at 139. All the “various definitions of ‘use’ imply action,” Bailey v. United

8

States, 516 U.S. 137, 145 (1995), meaning “an active employment of force” is needed.

Voisine, 136 S. Ct. at 2279. And the “against” language means the force must

“actually be applied.” Leocal, 543 U.S. at 11. There must be “contact” resulting

from “‘the physical force of the offender.’” Stokeling v. United States, 139 S. Ct. 544,

553 & 555 (2019) (citation omitted). Thus, a crime “does not have ‘as an element

the . . . use of physical force against the person of another’” if the crime “amounts to

a form of inaction.” Chambers v. United States, 555 U.S. 122, 127-28 (2009).

The inevitable conclusion given this uniform wall of precedent is that a crime

of inaction – which involves no physical act, no application of force, and no contact –

entails no “use of physical force against” anyone.

The government’s argument to the contrary reprises the majority’s below. It

maintains that a caregiver who sits and watches his charge have a heart attack

“‘use[s]’ force in the ordinary sense of that word – he ‘employ[s]’ or ‘utilize[s]’ it for

his desired purposes – by intentionally taking advantage of the force to seriously

injure (and ultimately kill).” BIO at 12 (quoting Pet. App. 22a). This view derives

not from any ruling of this Court on the clause here, but from one definition of “use”

that means “to avail oneself of.” Smith v. United States, 508 U.S. 223, 229 (1993).

Yet Smith held “the exchange of a gun for narcotics constitutes ‘use’ of a firearm.”

Id. at 225. That is no “form of inaction.” Chambers, 555 U.S. at 128. “Language, of

course, cannot be interpreted apart from context.” Smith, 508 U.S. at 229.

The context here is a clause requiring not just the “use of physical force” but

the use of that force “against the person of another.” Again, this “demands that the

9

perpetrator direct his action at” someone. Borden, 141 S. Ct. at 1825 (plurality op.;

emphasis added). The text “‘limits the scope’ of the use-of-force clause to ‘crimes

involving force applied to another person.’” Id. at 1839 (Kavanaugh, J., dissenting)

(emphasis added; citation omitted). There must be “‘physical force of the offender.’”

Stokeling, 139 S. Ct. at 555 (emphasis added; citation omitted).

Sitting still while an external force strikes one’s charge doesn’t fit that bill.

Whatever “desired purposes” are advanced by “taking advantage of the force”

through complete passivity, BIO at 12, there is no “active employment of force

against another person.” Borden, 141 S. Ct. at 1834 (plurality op.). The caregiver

hasn’t “create[d] [the] force,” Voisine, 136 S. Ct. at 2285 (Thomas, J., dissenting), or

“deployed” or “directed” it, Borden, 141 S. Ct. at 1827 (plurality op.), or “applied” it.

Id. at 1839 (Kavanaugh, J., dissenting). He’s simply let the force run its course.

Though foul, his physical inaction is not a “use of physical force against” his charge.

Nothing in Castleman holds (or hints) otherwise. That case concerned a

crime of commission, not omission, and “did not decide” the question here. BIO at

19. Nonetheless, the government says the line in it the majority below seized on –

“the knowing or intentional causation of bodily injury necessarily involves the use of

physical force,” 572 U.S. at 157 – is “directly relevant” because the clause here is

“materially identical” to the one in Castleman. BIO at 15. Not so.

The clause in Castleman defined a “misdemeanor crime of domestic violence”

as requiring only the “use of physical force.” 572 U.S. at 161. Unlike here, it didn’t

require force to be used “against the person of another.” As Borden explains,

10

“‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator

direct his action at” someone. 141 S. Ct. at 1825 (plurality op.). The text “‘limits

the scope’ of the use-of-force clause to ‘crimes involving force applied to another

person.’” Id. at 1839 (Kavanaugh, J., dissenting) (quoting government brief). 3

The government says Castleman’s “key reasoning” is that “the ‘use of force’ in

poisoning a drink ‘is not the act of “sprinkling” the poison; it is the act of employing

poison knowingly as a device to cause physical harm.’” BIO at 16 (emphasis in BIO;

quoting Castleman, 572 U.S. at 171). Yet “employing” the poison is done by adding

it to the drink: that’s how the poisoner “direct[s] his action at” the victim. Borden,

141 S. Ct. at 1825. Castleman’s “key reasoning” is simply that an indirect

“application of force,” 572 U.S. at 170, counts just as much as a direct one: “That the

harm [of poisoning] occurs indirectly, rather than directly (as with a kick or punch),

does not matter. Under Castleman’s logic, after all, one could say that pulling the

trigger on a gun is not a ‘use of force’ because it is the bullet, not the trigger, that

actually strikes the victim.” Id. at 171. Poisoning, kicking, punching and shooting

are all uses of force: one person needn’t lay hands on another, as the “concept of

‘force’ encompasses even its indirect application.” Id. at 170. But this “Court has

never held, in Castleman or any other case, that omissions constitute indirect force.”

The government claims the distinction between the clauses in Castleman and

Borden “does not support petitioner’s argument here, which concerns the language

regarding ‘use’ of force.” BIO at 15-16 n.*. But Scott’s argument obviously isn’t

based solely on the word “use.” As explained throughout his petition, “[o]rdinary

English and this Court’s rulings thoroughly confirm that physical inaction is not a

‘use of physical force against the person of another.’” Pet. 2.

11

3

Rumley, 952 F.3d at 552 (Motz, J., concurring; emphasis in original). No wonder:

an omission entails no “application of force,” directly or indirectly, by or to anyone.

Castleman, 572 U.S. at 170. There’s no “force applied” or “contact” at all. Borden,

141 S. Ct. at 1839, 1846 (Kavanaugh, J., dissenting).

As Borden also confirms, the clause here doesn’t come from the common law:

the “phrase ‘use of physical force against the person of another’ is [not] a term of

art; there is not, even in the dissent’s imagining, any historical or distinctly legal

meaning associated with that language.” Id. at 1828 (plurality op.). And contra the

citation-less claim of the majority below, there is no “common law background

recognizing omission as action.” Pet. App. 25a. As shown, see Pet. 24-28, the

conflation of inaction and action is a product of modern state statutes decreeing that

“omit[ting] to perform an act” is an “act.” BIO at 13. Many states had so decreed by

the time Congress wrote the clause here in the 1980s, but if that’s what the majority

meant by “common law background,” it doesn’t change anything. If Congress had

wanted to incorporate the states’ practice of deeming inaction action, it would have

used like text. It didn’t: the clause Congress wrote speaks of the “use of physical

force against the person of another”— not of an “act” or “omitting to perform an act”

or, for that matter, the “causation of bodily injury.” BIO at 15. And Borden is but

the latest case to make crystal clear that Congress’s text requires physical action.

That’s why the circuit had to “perform[] contortions” to rule against Scott.

Pet. App. 75a (Leval, J., joined by Katzmann, Lohier, Carney and Pooler, JJ.,

dissenting). This Court has always said the clause here requires action; thus, when

12

asked in Chambers if a crime of inaction qualified, the Court said no. This is not a

close question: physical inaction is no “use of physical force against” anyone.

Indeed, the government acknowledges that in Chambers this Court “stated

that [a] failure-to-report [to prison] offense would not qualify under the ACCA’s

elements clause,” objecting only that “the Court did not explicitly rely on that . . . in

resolving the question presented.” BIO at 21. Yet the question presented was

“whether the ‘failure to report’ crime satisfies ACCA’s ‘violent felony’ definition,”

Chambers, 555 U.S. at 127, which of course required deciding if the crime fit either

of the definition’s then-extant clauses— including the one here. The Court said no.

“It is easy to imagine a failure to report to prison,” the government says,

“that does not involve any use of force whatsoever. But the same is not true of a

homicide committed by a defendant who ‘inten[ds] to cause serious physical injury

to another person.’” BIO at 21 (quoting N.Y. Penal Law § 125.20(1)). Yet one need

“imagine” nothing here: New York’s highest court has held a “‘passive’ defendant”

can commit manslaughter by “failing to seek emergency medical aid” for his charge.

People v. Wong, 81 N.Y.2d 600, 608 (1993) (citing People v. Steinberg, 79 N.Y.2d 673,

680 (1992)). Thus, the government “abandoned” its initial claim that the crime can’t

be committed by inaction, Pet. App. 20a, and the en banc court accepted that the

“least serious conduct [the crime] covers,” Borden, 141 S. Ct. at 1832 (emphasis in

original), is “no physical action at all.” Pet. App. 21a. It’s immaterial that such

inaction must be “intentional.” BIO at 22. Intentional or not, “no physical action,”

Pet. App. 21a, is no “use of physical force against” anybody.

13

Unable to identify any ruling of this Court in its favor, the government tries

to distinguish the multiple precedents above that doom its argument. See BIO at

21-23. But that effort is just a rehash of the circuit majority’s “slicing the baloney

mighty thin.” Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018). It focuses on the

technical holdings of the cases while ignoring why the Court ruled as it did: because

the clause here requires one person’s application of force to another person’s body.

See Pet. 30-35. The offense here requires no such thing.

The upshot of all this is that New York manslaughter isn’t a “violent” crime.

However odd this might sound to “a man on the street,” Pet. App. 5a, that guy

doesn’t decide this question. As shown, courts across the country have ruled in the

years since the 2015 Johnson decision that all kinds of “violent”-sounding crimes –

murder, manslaughter, rape, carjacking and armed assault – require no “use of

physical force against” a person for one reason or another. See Pet. 20-21 n.3.

Those rulings, like those of the district court and 3-judge panel here, are the result

of faithfully applying this Court’s precedents in the post-Johnson world: without the

capacious (but unworkably vague) residual clause definition of “violent” crime,

fewer crimes qualify as “violent.” If Congress wants to change that, it knows how.

Meanwhile, “shoehorning” a crime “into statutory sections where it does not fit”

isn’t an option. Leocal, 543 U.S. at 13. See also Borden, 141 S. Ct. at 1835 (Some

courts’ “workaround [to Johnson] was to read the elements clause broadly. But the

text of that clause cannot bear such a broad reading.”) (Thomas, J., concurring).

Finally, the rule of lenity. As shown, there’s no need for it here given the lack

14

of any ambiguity. This Court’s rulings could not be clearer that physical inaction is

not a “use of physical force against the person of another.” But were there actual

confusion about that, this case would be the poster child for lenity: this Court has

always said the clause here requires action; it has never said inaction qualifies; and

in Chambers, the government agrees, it said a crime of inaction does “not qualify

under the ACCA’s elements clause.” BIO at 21. No “contortions” to the contrary,

Pet. App. 75a, can justify a 15-year mandatory minimum that neither that clause

nor any ruling of this Court even suggests— let alone clearly requires.

Lenity, a rule of due process, “bars courts from applying a novel construction

of a criminal statute to conduct that neither the statute nor any prior judicial

decision has fairly disclosed to be within its scope.” United States v. Lanier, 520

U.S. 259, 266 (1997). Again, that describes this case to a tee. See also Brief of

FAMM and the National Association of Criminal Defense Lawyers as Amici Curiae

in Support of Petition for a Writ of Certiorari.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

September 29, 2021

Matthew B. Larsen

Counsel of Record

Federal Defenders of New York

Appeals Bureau

52 Duane Street, 10th Floor

New York, NY 10007

(212) 417-8725

Matthew_Larsen@fd.org

15