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Posted by on Jun 10, 2011 in Law | 2 comments

Vehicular Flight Is A Violent Felony (Sykes v. U. S.)

Sometimes cases don’t need to turn the world of constitutional jurisprudence on its ear to be worth a read. Sykes v. U. S. is one of those. It’s really pretty straight forward, mostly statutory interpretation.

Sykes was convicted of possessing a firearm during the commission of a crime. Under the Armed Career Criminal Act [ACCA], that results in a sentence enhancement of at least 15 years if the defendant has been convicted of three prior violent felonies. Sykes had been convicted of two qualifying violent felonies, plus a third felony for using a vehicle to flee from a police officer.

The ACCA defines violent felony as,

“…burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The key provision for this case is what is called the residual [catch-all] clause “or otherwise involves conduct that presents a serious potential of physical injury…” The Supreme Court majority agreed with both the trial court and court of appeals that fleeing in a vehicle, even if it does not involve high speed or other violations of rules of the road, meets the criteria of the residual clause.

What makes the case interesting is Scalia’s sometimes humorous, but biting, dissent where he argues that the residual clause of the ACCA should be struck down as unconstitutionally vague. Unconstitutional vagueness means that the average person reading the law would not know precisely what conduct was proscribed.

Scalia points out that this is the fourth time the Court has tried to define what the ACCA residual clause means and that this is the fourth different test the Court has tried to apply. He notes, correctly in my opinion, that Congress has taken to writing vague criminal statutes and relying on the courts to complete the legislative process by interpreting what such laws should mean. His dissent raises the specter of the courts encouraging congress to continue writing vague laws by engaging in the interpretive process.

If nothing else, it’s worth reading the dissent just to see a Supreme Court Justice refer to the majority writer as having produced a “tutti-fruity opinion” or opine that the Court will be interpreting the ACCA again and again “until the cows come home.” And there is one line, not the least bit humorous, that should hit home.

“Repetition of constitutional error does not produce constitutional truth.”

Whatever you may think of Antonin Scalia generally, his dissent here is worth a quick read both for style and substance. Scroll past the main opinion and Thomas’s overly-long-for-the-simple-point-he’s-making concurrence to save time if you wish. Then come back to the comments section and share your views.

[Oh, the image is the crash scene following one of the police chases in the “Blues Brothers” movie for any who haven’t seen the film.]