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SCOTUS hears Indiana case

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Indiana Lawyer Rehearing

Indiana Federal Community Defender Bill Marsh made his debut appearance before the nation’s highest court on Jan. 12, arguing an Indiana case that questions whether vehicular flight from police is considered “violent” and warrants a higher sentence under the Armed Career Criminal Act.

The case is Marcus Sykes v. U.S.A., No. 09-11311, and it comes from the Southern District of Indiana with the potential to impact many other pending cases inside and outside the state.

U.S. Judge Larry McKinney rejected Sykes’ argument that fleeing police in a vehicle wasn’t “violent,” and the judge applied an enhancement to reach a 188-month prison sentence. The 7th Circuit Court of Appeals ruling affirmed the enhancement decision in March 2010, finding that it is considered a “violent felony” as it had previously decided on other cases and was dictated by SCOTUS precedent.

Representing Sykes, Marsh is arguing that the ACCA-applied conviction for vehicular flight was inconsistent with the SCOTUS ruling in U.S. v. Chambers, 555 U.S. 129 S. Ct. 687 (2009), which held that failing to report for parole was separate and distinct from escaping from a penal institution, and therefore falls outside of the category of violent felonies listed in the ACCA. Marsh is relying on a distinction the court made in Chambers, that fleeing from police is a distinct category of flight under Indiana Code § 35-44-3.

Transcripts of the arguments show the justices expressed some hesitation in finding this offense falls under the ACCA use of “violent” felony. Justices questioned both sides about various types of police chases and whether the degree of a chase dictates whether it’s considered “violent,” and several of the jurists pointed to examples from Indiana cases and hypothetical scenarios.

Justice Antonin Scalia noted that he doesn’t think fast fleeing is such a violent activity, saying at one point to U.S. Assistant Solicitor General Jeffrey Wall: “Do words mean nothing? I mean, we’re talking about a violent felony. That’s what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony. That seems to me a big leap.”

He wondered whether speeding might be considered a “violent felony” under this statute, and Justice Elena Kagan asked whether drag racing or running away on foot might meet that definition.

Chief Justice John Roberts also noted that a person’s simple “running away” isn’t aggressive, though it may be considered “purposeful” and could even be considered “violent” if it causes injury or death that isn’t intended.

“Certainly the other option is to turn and confront, and he doesn’t want to,” the chief justice said. “There’s nothing aggressive about running away. Those are the three words, ‘purposeful, violent, and aggressive.’ I’ll give you purposeful, I’ll give you violent, but aggressive?”

The SCOTUS is likely to rule on this case by the time its term ends this summer, but it could also delay a decision until after it hears McNeill v. U.S.A., No. 10-5258, a case that also involves ACCA.

Rehearing "Crime of violence?" IL Dec. 8-21, 2010
 

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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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