conviction requires proof that the defendant active politically consciously disregarding a known risk of serious bodily injury and actually cause such injury as was seen teaches us a defendant who so x is in fact involved different predicate statutes and defendant know that those statutes expressly required intentional conduct but so does one thirteen a sex it requires a conscious disregard of a known risk of serious bodily injury as was seen explained that such conduct involves a deliberate decision to endanger an another and is this court explain in sunni such an act amounts to an act on voluntarily and intentionally moreover  makes even more sense to apply was seen to nine twenty four see the statute at issue here than it does to the aca now there are several differences between various statutes that the defendant in the dish or court point to an argument that was does not apply here the penalties the statutory language and the context of the statute as for the penalties as the dish or court noted the penalties for a nine twenty two g nine violation that miss you no crime in domestic violence statute are less than four nine twenty four for c violation at issue here but that's because they criminalized very different types of conduct nine twenty two g nine criminalizes the simple possession of a firearm after a prior misdemeanor conviction nine twenty four c makes it a new crime to use or brandish or in the case of this particular defendant discharge a firearm in the course of a crime of violence so it's not surprising that the penalties for a nine twenty violation or greater secondly the statutory language there are several differences between the nine twenty two g nine the aca and nine twenty four c and how they define against whom or watch the force may be used for nine twenty two g nine they don't use and against phrase but rather define the relationship between the victim and the perpetrator but force must in fact be used against a person for the aca force must be used quote against the person of another nine twenty four c has the broadest of these definitions and requires only that force be used against the person or property of another that phrase does not mean that there is a higher mens rea requirement for  twenty four c e but simply defines where the force must be applied and then finally the context of the statute although that was deemed courts and analysis was based primarily on the turn use and the meaning of recklessness which do not change from statute to statute the was in court did note that its determination that a reckless causation of bodily injury really was a use of force comported with a commonsense understanding of what congress intended to hold otherwise would have meant that the majority of assault statutes for the various states would not count as misdemeanor crimes of domestic violence that result was in court said to not make any sense but so too for nine twenty four see a violation if we are to interpret nine twenty four c's crime violence definition the way the district court date and the defendant asks you would be excluding many federal assault and even arguably federal murder from the definition of a federal crime of violence that makes little sense to the contrary assaults resulting in serious bodily injury is the quintessential crime of violence for that reason the district court's decision to dismiss the indictment was in error and should be reversed under section one thirteen a six could you violate that statute by reckless driving so his uni was a tenth so yes in a sense is the answer zuni that was a particularly reckless driving yes well if you go back to the supreme court's decision and leave call if the supreme court says whether a state says that u of physical force against another person suggests the category of violent act of crimes that cannot be said naturally to include dui offenses if you had somebody knocked back a bunch of alcohol and then consciously in this regard for what that could do to people on the road gets in and drives their car they would fall under one thirteen they could be one thirteen does leave home and tell us that we shouldn't treat that statute is a crime of violence no it does not and why not for two reasons so first of all the drunk driving statute at issue in we it how did not have a reckless mens rea or requirement rather it was simple negligence or even strict liability and so that the court in we had how as the court later explained in was he was not drawing a line between knowing and reckless conduct but w of of drunk driving and that's not what one thirteen in the sex prevents one thirteen a sex requires that the jury actually finds that the defendant consciously disregarded a known risk now in fact in some cases that involve someone who is drinking and driving but you don't see simple drinking and driving negligence negligent conduct charge under one thirteen eighty six but rather quite extreme conduct as was at issue in zun and that case the defendant didn't simply drink and drive but rather he drove a one ton truck twenty five miles over the speed limit he swerved across the median he drove five or six cars off the road and then despite the victims of ace of maneuvers he hit the victim's car head on and the court of appeal said from that particular set of conduct a jury could infer that the defendant acted recklessly is it accurate to say that section one thirteen a six requires willful cond it does require willful conduct that's precisely the jury instruction that was given in zuni that this court blessed the that the jury was instructed then assault is they will pull attempt or threat to inflict injury upon someone else and that an act  willful when it is done voluntarily and purposely or and reckless disregard for the safety of others so yes it does require a willful act it simply doesn't require that the defendant intended the resulting harm and that's exactly what  us is that the word used is silent as to whether the defendant must have intended the the harm as was seen says there's no well there may be a line between reckless and negligent conduct there is not a line between knowing and reckless conduct because those two types of conduct are actually quite similar to one another both require that a defendant acted volitionally knowing that there was a rest that harm would result knowing conduct requires that you know there's a substantial certainty that the result will happen whereas reckless conduct requires less certainty than that that's what about what about the hypothetical i stumbled across in preparing for this about the the throwing the plate against the wall and a piece of plate ins up hurting someone and could that be a violation of one thirteen eighty six well it would have to result in serious bodily injury and the defendant would have to be aware of that risk the model penal code it got his hands is that force against the person or property it so be it is forced to know that it is force against the person because as this court held on to vero if you actually have serious bodily injury that can only result from the application of force to the person it doesn't matter whether the force is direct or indirect and so perhaps the force is indirect in this then that you don't yourself smack the person in the face or hit them but neither is it technically direct force if you pull the trigger on a gun and the bullet hit somebody so again you know these determinations always depend on the very specific facts of the case but if the facts are such that the jury can find that the defendant  threw a glass against the wall against the wall caught knew that there is a risk that they would cause serious bodily injury consciously disregarded that risk and in fact cause that serious bodily injury then yes the defendant could be convicted under one thirteen a sex you just got approvals yes we have to prove all of those things that's correct and that's why it is i mean that is not the easiest of standards to meet and so you know the judge decided justice thomas in his of wasn't dissent was concerned about the text messaging father who might be held liable for a crime of violence but of course you don't see prosecutions under one thirteen text messaging father because in addition to the conscious disregard of the known rest the model penal code also says that the defendant's conduct has to be a grossed based on the circumstances known to him so again requiring the defendant's knowledge must be a gross deviation from the standard of care that a law abiding person would take and that's not simply a criminal negligence or even a strict liability you would have under a dui statute but a much higher standard is it appropriate for you to rely on their decisions in hammons and pam when they addressed whether there was a crime of violence under the elements clause of the a c c and here we're looking at the elements cla nine twenty four c three a which contains the additional words or property well if anything that phrase or property makes nine twenty four c apply to a broader category of crimes but i think that the you can look to the reasoning of pam and hammond and certainly the fact that they were applying was outside of a misdemeanor crime of domestic violence contests strongly encourages the application of y z in to the nine twenty four c in most of the arguments about why not to apply was even or that it is limited so we to that specific statute and of course pam hammons at least in this court that's not correct the district court at it properly and dismissing the indictment which charge mr mann with just charging a firearm during a crime of violence because assault resulting in serious bodily injury is not categor of violence to be guilty of discharging a crime during a crime of violence the defendant must use violent purposeful physical force against the person the defendant has to act intentionally or willfully which is liberally and most important without any kind of inch justification with as we would say in the mens rea context within a band in a malignant heart the defendant must choose to use the force and consciously desire that application against the person of another but what about reckless recklessness is not some soon then the definition of crime of violence hadn't yet around our decision and ham with pam is the interpretation of new mexico's assault statute and justice mchugh rightly looks to the jury instructions that define that as a willful attempt your honor you have to take a categorical approach but you're amendment rights and remember the facts of this case to illustrate how perilous and difficult that distinction is mr mann fired into a crowd of people on the night of july twenty first two thousand and ten he feared for his life when a mob attacked him when a man came under a barbed wire fence and continued to approach to him despite a warning shot he was charged with second degree murder and found not guilty of that offense he was charged with assault with intent to commit bodily injury and he was found not guilty of that affects the jury found him guilty of assault resulting in serious bodily injury which didn't require the same level of intent which requires only a general intent namely to do an act would result in serious bodily injury and although we find ourselves in the mire between hell and was seen it's important to recognize that reckless conduct was on the something a little bit more than foolish because volitional would mean anytime you pull the trigger and someone is injured you've committed in one thousand four c i'll give you three examples of why that's not true first think of the man in utah who's in gauging a target practice in a federal enclave like a forest and thinks no one's there thing serves no one unpopulated but he doesn't the hide of hunting season when he should reasonably know that there are lots of hunters there and he interests someone the trigger he was consciously disregarding the risk of injury to a hunter he's guilty of a crime but he did not use a firearm doing a crime of violence think of a woman in colorado who is on a military base and she celebrates the new year by firing a weapon into the air the ball comes out goes down it's an individual on that base she is guilty of assault resulting in serious bodily injury but teaching gaijin a crime of violence if you use a definition of volitional yes she polish we pull that trigger yes that bullet came down and hit someone crime of violence but that's not a crime of violence that doesn't have that violent active trigger but the intention of its consequences to be guilty defendant must choose to use force and desire that application of force if someone is reckless they're not even aware that they're all long as you consciously disregard the risk of harm to others i think that's right but i think what's more important for pam and hammond is in the elements of the statute whether as written or and interpret it as congress intended it to be interpreted because congress employ a common law term are and so they import incorporated broadly and then judge a judge sotomayor explained beautifully why that is necessary in a domestic violence context this that we're struggling with today is not a common law term of our it is a statutory word and we cannot assume the statutory word is used as a common ter but that's not a crime of violence against a person that's not a common law term that's a statutory term that's a statutory term that has you know kept lawyers and judges in this moment for years and in every moment the government person we're not talking about injuring a person we're not talking about harming a person we're not talking about committing reckless acts to be guilty of a predicate offense we're talking about violent intentional purpose see he doesn't even know was injured he never even named that then he does not have the intent to use force against the person could i can i just come back to wild xen i think that's force recklessness is a crime of violence whether what is nine twenty one a thirty three a required if a common law conviction for using force against a domestic partner it were lies in a common law definition and the court in and i go back to justice scalia increased johnson he was the one who emphasized but you know i mean dan you want to cite those but tell me why why you can get around that case because interpreted the common law definition of use of force because nine twenty four c does not rely on the common law definition of force nine twenty four c is a statutory phrase in which congress did not define what use of force subsumes and since we've been struggling to define it and we now find ourselves in the last unknown area where does recklessness fit in that statutory definition let me in was seen they were interpreting the language of the main statute yes that and the main statute that it was a violation for if you recklessly cause bodily injury to another and you are guilty of domestic violence  right and and they dissed and they held that they would get the person convicted of this main statute had committed a crime of violence they had committed a misdemeanor crime domestic had committed a misdemeanor offense of domestic violence under the common law definition of use of force by the us in there and alice they focused on the recklessness and crime as assault with intent to commit bodily injury that qualifies it as a crime of violence and i think the distinction is important mr mann was convicted of involuntary manslaughter and not given in one thousand four c because involuntary manslaughter is not a crime  statute with the jury instructions or the underlying crime but involuntary manslaughter is the same as assault resulting in serious bodily injury it's a general intent crime we don't dispute that he's guilty of these offenses we dispute that these offenses are not secondly as to the discussion of common law terms in castleman and johnson and there is a discussion of the meaning of the word force and the and in the court gave the discuss the common law meaning of  when discussing the meaning of the word force wasn't however did not discuss the common law but rather refer to dictionary definitions of the word use and the word use means the same thing whether it is in the misdemeanor crime of massive violence context or in the one twenty four c crime of violence context defense counsel that position appears to be that in order to commit a crime of violence one must have intended to do harm of course this court has already  ruled that out in ramon saul the even before of watson was issued holding that specific intent is not required in order to be have committed a violent felony under the aca i'd finally like to address some of all acts that defense counsel argues would fall under one thirteen a six such as shooting a gun in the air or accidentally hitting someone when you are hunting and of course there is one thirteen a sex does not simply require of the volitional act but it requires a volitional act in conscious disregard of a known risk of serious bodily injury to the person of another and so perhaps there may be an instance in which a hunter is guilty of one thirteen because he shoots consciously disregarding a risk to somebody but perhaps there may be instances in which one hundred shoots someone and is not guilty under that statute either there are no further