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.
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