United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)
In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).
In getting there, the majority looked beyond the statute’s title – which “suggests an obvious answer ” – to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and those who “follow in the proscribed activity.”
In Begay, the Supreme Court held that the “otherwise involves” clause applies only to offenses that are similar “in kind” as well as “in degree of risk posed” to the offenses that are listed in ACCA – burglary, arson, extortion, and the use of explosives.
First, for “in kind” similarity, the test is whether the conduct proscribed by the statute “typically involves purposeful, violent and aggressive behavior.” The court held that the rioting statute satisfies this test, rejecting the defendant’s argument that the statute could cover “many forms of passive and nonviolent conduct.” The court found that it was not a strict liability statute, but rather required proof of “general intent,” which satisfied the “purposeful conduct” requirement of Begay. The court also had “little doubt” that rioting at a correctional institution “typically involves” violent and aggressive conduct. In every reported decision under the statute, the conduct involved either use of a weapon or injury to another person, or both.
To the majority, it did not matter that some arguably nonviolent conduct – such as a hunger strike – might violate the statute, or that some unreported cases might have involved nonviolent conduct. Under the majority’s reading of the statute, each of the acts proscribed by the statute “typically involves violent and aggressive behavior.” To find that the Connecticut statute was not categorically violent would require a realistic probability, not a theoretical possibility, that the state would apply the statute to nonviolent conduct. But the majority found no evidence that Connecticut “regularly” applies the statute to nonviolent conduct.
The majority had an even easier time on the “degree of risk” analysis. The statute “in the ordinary case” presents a serious potential risk of injury to another because prisons are “inherently dangerous institutions” and the conduct proscribed by the rioting statute “renders confrontation with guards or other law enforcement authorities a virtual certainty.”
Judge Parker dissented. In his view, the majority incorrectly concluded that each of the acts proscribed by the Connecticut statute is violent. In fact, the statute “sweeps broadly,” punishing such nonviolent infractions as “disregarding an order to move, engaging in a work stoppage, or counseling another inmate to disobedience.” Judge Parker would have applied the “modified categorical approach” and required the government to “show what part of the statute Johnson actually violated.” To him, unless the underlying conviction had been for “actually rioting,” it is “far from obvious that such an offense” is an ACCA predicate.