ILNews

SCOTUS takes case on whether vehicular flight from police is a 'violent felony'

Back to TopCommentsE-mailPrintBookmark and Share

Fleeing in a vehicle from police is a crime, without a doubt. No one disputes that.

But whether that crime is considered a “violent” one worthy of an enhanced sentence under a long-standing federal career criminal statute is a legal nuance now an issue before the nation’s highest court, and Indiana is playing a key role.

The Supreme Court of the United States will address that question Jan. 12 when it hears arguments in a case out of Indiana, and the result is likely to impact a handful of other cases already pending in the state’s federal courts as well as reshape precedent on how these and other sentencing standards are viewed across the country.

“We have a piecemeal, Scrabble board of caselaw on this topic right now, and it’s a case-by-case, crime-by-crime analysis,” said Indianapolis attorney Brian Paul, who represents one defendant appealing on this issue at the 7th Circuit. “It’s up to each individual judge and, as an attorney, you don’t have any guidance on how this might be determined except that it might fall under some vague catch-all provision in this federal act about what a ‘crime of violence’ is.”

The cases that are unfolding on this issue center on one provision in the Armed Career Criminal Act, first enacted in 1984 but revised periodically through the years. The controversial part of the law is the meaning of “violent felony,” which has an element of the use, attempted use, or threatened use of physical force. Specifically, the act lists burglary, arson, extortion, or the use of explosives as applying, but it also includes anything that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

That definition has been causing concern for years, and in recent years the SCOTUS has taken up cases to address it as applied to drunk driving, attempted murder, and other specific crimes. But now it’s being tackled in connection with the use of a vehicle to flee from police.

As its new term began about two months ago, the SCOTUS on Sept. 28 granted certiorari in the case of Sykes v. United States, 09-11311, which comes from the Southern District of Indiana.

The defendant, Marcus Sykes, pleaded guilty in 2008 to being a felon in possession of a firearm after he’d been arrested for brandishing a gun while attempting to rob two people sitting in a parked car outside an Indianapolis liquor store. Though Sykes didn’t follow through on his robbery attempt, police saw him toss the gun aside and arrested him. Sykes pleaded guilty and the probation office issued a pre-sentence report concluding that he was subject to a sentencing enhancement under the ACCA because of three previous violent felony convictions - two 1996 convictions for robbery and one in 2003 for resisting law enforcement in a vehicle, which is a Class D felony under state statute. Sykes objected to the sentence enhancement on grounds that his conviction for resisting law enforcement was not considered a violent felony under Indiana Code §35-44-3-3(b)(1)(A).

At the District level, U.S. Judge Larry McKinney rejected Sykes’ argument and applied the enhancement, resulting in a 188-month prison sentence. The 7th Circuit Court of Appeals ruled on the case in March and affirmed the trial judge’s enhancement decision, finding that it is considered a “violent felony” as the court had previously decided on other cases.

The appellate court applied its ruling in United States v. Spells, 537 F.3d 743, 753 (7th Cir.2008), finding that its precedent was “neither unworkable nor unsound” and grounds to reject Sykes’ push that the past holding should be set aside. Though Sykes acknowledged the 7th Circuit’s holding in Spells that vehicular fleeing from police counts as a violent felony under the ACCA’s residual clause, he contended that the appellate court should instead follow what the 11th Circuit has done in United States v. Harrison, 558 F.3d 1280, 1292 (11th Cir.2009). There, the court held that a nearly identical Florida statute that punishes “fleeing law enforcement” is not a violent felony under the ACCA.

With the Circuit split, and a history of accepting other cases focusing on the “catch all” provision in the ACCA, the SCOTUS agreed to hear the issue.

Indianapolis-based public defender Bill Marsh with the Indiana Federal Community Defenders represents Sykes and is making his debut appearance before the high court.

“We have several of these cases from Indiana and Wisconsin and other states that are in the pipeline, all with similar state statutes on fleeing that we’re talking about here,” Marsh said. “This means a lot to those who are being charged and convicted on these grounds, with the penalty having a maximum of 10 years normally but turning into a minimum of 15 years under this. This is an evolving area, but it’s narrow.”

It doesn’t make sense that a crime such as criminal recklessness, which sometimes is determined to be more serious than fleeing from police in a vehicle under state statute, has been determined to not be an ACCA predicate crime, March said. The U.S. Sentencing Guidelines also don’t consider this type of offense to be considered “violent” and subject to longer sentences, he said.

“We just need consistency,” Marsh said.

The U.S. Department of Justice and Solicitor General declined to comment on the Sykes case or the general issue prior to the arguments next month, instead referring to the merit briefs already submitted and whatever else may be on the record once the justices hear arguments.

But the impact of Sykes goes far beyond that particular case and will help determine the fate of other cases and the Hoosier attorneys representing those defendants.

Paul is an Ice Miller lawyer handling one of those cases pro bono before the 7th Circuit. That case is U.S. v. Jadrion Griffin, No. 10-2028, and stems from a ruling by U.S. Judge Richard Young in the Southern District of Indiana’s Evansville division. A federal grand jury indicted Griffin in 2009 for various drug and gun-related offenses dating back to February 2007, and part of his eventual 360-month sentence in April delved into a past conviction of fleeing from police by vehicle.

But now that the SCOTUS has agreed to hear the other Indiana case on this issue, Paul has asked the 7th Circuit to hold off on deciding the Griffin case until the high court issues a decision – likely by the end of June.

“It’s not totally shocking that the Supreme Court took Sykes, but it is somewhat because of how these cases continue going before the court,” he said, referencing the decisions from recent years on “violent crimes.”

In one case, Justice Antonin Scalia dissented and criticized that the court would likely have to decide this issue on each type of crime, rather than issuing some uniform guidance for judges and courts to follow. But what he finds even more troubling is that the government hasn’t produced specific studies or statistics about how vehicular fleeing from police might be considered “violent,” depending on speeds and demographics or other circumstances.

The Fair Sentencing Act is aimed at restoring fairness to federal sentences, and that same standard should apply here as it relates to crimes that under state law and even U.S. Sentencing Guidelines are not considered “similar” as far as “violence.” Judge Richard Posner has described this as “an embarrassment to the law,” Paul noted.

“I’m not a criminal lawyer and handle mostly civil cases, but I see how the confusion and lack of clarity here creates anxiety in the criminal justice community,” he said. “This comes down to accountability. Basically, it’s like prosecutors are saying, ‘trust me, this is a crime of violence because we say so’ and the judges are left to decide this by the seats of their pants, based on what they might consider is violent. We need to do better.”•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  2. Low energy. Next!

  3. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  4. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  5. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

ADVERTISEMENT