In the Ninth Circuit, at least. This week in United States v. Begay, No. 14-10080, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), the Ninth Circuit held that second-degree murder, in violation of 18 U.S.C. § 1111, is not a crime of violence for purposes of 18 U.S.C. § 924(c).
In Begay, the defendant, “[a]fter a few hours of drinking and smoking methamphetamine,” “shot [the victim] in the head with a handgun,” killing him. The defendant was convicted of second-degree murder and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
The Ninth Circuit vacated the § 924(c) conviction. The Circuit applied the categorical approach to determine whether second-degree murder qualifies as a crime of violence, looking to the elements of that offense rather than the specific facts of the case. (And after United States v. Davis, an offense must qualify under § 924(c)’s so-called “elements” or force clause.)
Further, under the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), and Ninth Circuit precedent applying that case, a “crime of violence” requires “intentional,” “purposeful” conduct. But second-degree murder can be committed “recklessly,” that is, “with a depraved heart mental state—and need not be committed willfully or intentionally.” As a result, it is not categorically a crime of violence for purposes of § 924(c).
As you might imagine, there is a dissent. It begins like this:
“MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? ‘I feel like I am taking crazy pills.’” (quoting Ben Stiller, Zoolander).