i would like to first address some of the arguments that were raised in the government's telling stories specifically in take them for twenty five point zero argument that the government repeatedly makes is that the legislative legislative history given the language of the statute is clear regarding the use of force and if the language of the statute is clear you don't even get to the legislative history however if you look at the legislative history it would seem to include common law salts which was a willful intentional crime and perhaps common law that every common law battery however included negligence which has already been decided by the supreme court in lieu of karr to be overly broad in terms of what is a crime of violence under section sixteen so therefore even if whether a dui offense constitutes a crime of silence but the reasoning employed by layer call i would argue applies not only to negligence but also to recklessness crimes because the court in that call is highly personal a sieve it's not controlling on the issue of recklessness and especially in the context of recklessness and criminal negligence as defined in arizona which the arizona definitions are clearly not that unusual in any case but arizona courts have held repeatedly that that closeness under arizona the arizona criminal statute is an intentional ac conclusion that crimes of recklessness are not included in crimes of violence because although criminal negligence was an issue in that case so once again you did not address the specific issues here the reasoning employed by our seem to include reckless conduct because it focuses on the active use of force and it says that layer can holding up five equally to gross negligence and the reason why is because gross negligence written before lay a call and later call changes the scope even though it may not be controlling because it did not deal with recklessness i think it definitely changes the scope and the other courts the third circuit enforced circuit have relied only a call to voluntary intoxication so therefore the under the well i think that there's i think that there's numerous examples on what i would point out as a general proposition it's something that the government stated in their brief and intoxicated in prison in the government's case they d intoxicated driver but what the government said is the an intoxicated driver is not normally understood to have a conscious awareness that using gaging product that will result in the employment of force against persons or property well i don't see how you can logically limit that to intoxicated driving and you could have been convicted under the arizona statute for  would say that it's not not necessarily that different but i would also say that in that case that would not meet the standard for the use of force either me you're not actively intending you're not actively using between a criminal negligence and recklessness because both and the distinction you knowing brilliancy specifically know it's both criminal negligence and recklessness are unintentional because the exactly and that's where i think that recklessness to exactly why recklessness is not is not included in a crime of violence because it could be that first time that you hit somebody and that would not be also perhaps  certainly under his own a law if somebody was would you give the same answer to just might have to question if it were your first time loading a bullet into a magazine or spinning a magazine and pulling the trigger pointing it to don't think that's the case here because have to look at the least at the least culpable act that could possibly fall under the statute and take that act and decide whether that act qualifies as a crime of  well i mean it could be under the arizona law it could be so much as tripping and falling while your your in talking on terribly intoxicated to take the reckless and tripping and falling into somebody with whom you have a domestic relation or with somebody who you had a former domestic relations it could be  it's recklessly causing physical injury so if you were driving drunk and you ran into ran over bumped into anybody a spouse a child a roommate somebody with whom you lived in a domestic situation that would meet the requirements of both the stature center which mr friend and this ruiz was convicted or if you were driving intoxicated with somebody in a domestic relation in the car with you and ran into something and that caused injury to that  arguments loud arguments lead to arrest all the time thousands of permanent basis will be separated from the us citizen and permanent resident family members if you rule that either this statute constitutes a crime of violence or car to really i mean they just have to get home and you know if they're you know they're not saying hey i want to put someone there just are responsible about their behavior well i think as judge work why sad it's hard for those people that have  in a container where it wasn't clear what it was that would be a reckless act with no force involved that would constitute domestic violence because the identity of the victim if i were to drive and my ex roommate was in the car and i were to drive a truck i could be convicted drunk and drive and injure somebody my passenger that's that's that's a conviction under the statute well if i swing a little you call when you're talking about the burglary that comment is that a burglary is a crime of violence not because the acts that would qualify sir your honor as you know and this is totally separate point there's a difference between injury and force that many courts have recognized so that if i were to leave out hazardous materials anything anything i throw whether i'm drunk i have absolutely no intent to anyone or whether i'm i'm not dry but i have no no intent to use force against anyone intent to use of force is exactly what the words more or container where a child could get to it a child could injure themselves also not an example necessarily of assault under the arizona statute because that doesn't necessarily involve the use you know if spills on you know he situation you know they tend to go with that structure rather than go a little more general well it conceivably could be i think we would concede that at least in that factual situation of leaving the caustic substance out where the child could get it could it even if it could conceivably be prosecuted under arizona law it might not qualify as a crime of violence anyway because because it may be missing the element of the but when when the supreme court is talking about not looking to the particular facts they're talking about looking not looking to the actual behavior that part yet that resulted in this criminal conviction but but the modified focus let's say let's say hypothetically let's say that there were some types of offenses that could be committed under the u s arizona assault statute that would not be categorically time for violence under section a it included the language that relates to that reflects common law battery and a common law battery all of these things that we're talking about things where and eat you leave a dangerous condition knowing that you're creating a risk that somebody could walk into that dangerous situation and become injured that would constitute a common law battery so it would come under the sixteen a definition what what i'm saying that what might not come anything to help them or or perhaps the situation of leaving the container out where a child could could get stuck in the container but not necessarily an active intense or a reckless and to create the danger to the child but these distinctions are vic are pretty refined and i'm not quite sure where that where the dividing line has but at common law if if an individual for instance rolled a boulder out in front of a vehicle and the vehicle flames into the boulder they're not actually applying force to the vehicle with the vehicle fine force it's its own force to the boulder that would still under common law that would still constitute common law battery and so therefore it would be included in the section response before that and under common law it's not necessary to actually use direct force against a person in order to be in order to commit battery the the example of is also is the same because arizona has actually helped that and in the context of the arizona law the injury in the act of injuring a person either recklessly or whatever the  an important point because if we have if we come up with hypotheticals that could conceivably in and in the academic world satisfy the statutory definition but if those types of crimes are never i may have may have misspoke and sense that of course in this case and many similar cases the court does apply a modified categorical approach but i think what i should've said was if the court is going to say that the math modify categorical approach does not meet the federal generic definition the court has to have a basis for that and if the and the basis for the court's decision have to be something in the case law to indicate that the squarely after your cow come out the other way and none have come out yet and if we were to go your way we would have to open so i could slip  i think that's correct but only with respect to the third circuit i think the third circuit in popal is really the only circuit that has addressed this issue squarely with has an assault statute that is almost identical to the arizona assault statute so i do agree at least with respect to the third circuit that the court's decision would create a split in a nutshell where did the third circuit alon with the third circuit went wrong in equating in equating negligence with recklessness that's where the third circuit has gone on it's also where the second circuit went wrong in jobs  d the third circuit incorrectly assuming that if somebody commits a reckless act that that is purely accidental or was purely negligent it's not when somebody commits a reckless act they have an awareness of the risk that they are creating and they go ahead and they do it anyway and that's the difference and that's why the third circuit's decision is actually not required underlay a co there has to be specific intent but it ignored the fact that that's only for common law salt which is an attempted battery or threatened battery and it ignored the fact that hundred battery specific intent is not require  had reckless way or the current statute as recklessly intentionally or knowingly causing an injury and i mistake versus gordon the causing an injury is the equivalent of use of force so far and least under arizona law that there's there's no probable argument that somebody could cause an injury without actually using force that circumstance under sixteen i certainly agree that the three judge panel in this case got it right on an all points that's a domestic violence disorderly conduct and that's that's not that's not an issue in this case we don't contend that that that is a that meets the definition of a crime of violence  that's true but but the finding of recklessness usually involves some other behavior going beyond just getting into the car and turning on the ignition and driving somewhere while you're intoxicated and reckless misuse may involve some aggravating factors  have to do those things hour they got into some kind of an accident and they cost somebody an injury so the injury itself is the use of force it's not the act of the ass getting into the car and driving is not a use of force it's the consequence that proof that the defendant threatened to use force constitutes an attempt to commit physical injury which is different than saying that the use of force and causing physical injury are the same and i would just like to rely relied extensively on last call and said that the later call reasoned reasoning quote strongly indicates that the resulting layer call would have been the same even had a violation of the statute there required recklessness rather than