overly broad and so it doesn't meet the purposeful standard under big a which is the threshold inquiry in the case under the government as taking issue with the with the ordinary trying accidents or we also have mishandling of firearms you know i agree with you that probably most north carolina assaults are committed intentionally but this court has specifically rejected the idea that under the residual funds you're hypothetical scenarios we're looking at north carolina case law and looking at north carolina cases in which real people have been convicted of assaulting serious bodily injury based on no more than negligent conduct we ha for example the case of mitchell which involved a man heating up a gun that he thought was unloaded and then the gun accidently just charges and the jury specifically rejected the theory of inten and that is that we know from recent supreme court law that we apply the ordinary case analysis to determine the degree of risk right crap why would we not do it when we're also determining whether it's similar in  it seems just very odd to me to use a different kind of analysis when maybe your answer is well we can do it and i still would but if your answer is don't do that tell me why no my answer is not i'm not saying that the ordinary case approach does not apply to it and now says here i'm simply saying that this court has twice rejected the notion that you just look you that you would look to all of the crimes broadly and say well because carolina blue light statute running or running away evading police officer the government made this exact argument that said that because most of the south carolina violations are intentional th then the ordinary case must be that they are intentional and fall under that and this court specifically rejected that argument and said no you have to look to the subset if you know that the crime would be minute without purposeful concept you keeps changing the rules here if you will this argument was made again in the martin your honor in two thousand and fourteen in touch on that panel and this was also the government's argument risk why don't we do it with respect to simulate this and learn can you do that as i don't buy the government's argument that the recent supreme court case over rule martin but it seems to me that it marks decided today at best be really that is what we're supposed to do but i mean as in you and i don't think that's what martin did and you're saying it did and that's that your response is that richard the first thing to me there was that that and specifically the point of purposeful but most of the courts in the united states most of the circuits don't follow that particular skew and they get were put ourselves there i mean many correctly they seem to think that subsequent whether your lead in cases involve people that were charged under fourteen dash thirty two eric and the answer my question was not and what i'm looking for or this could be committed by criminal negligence criminal negligence is sort of different from your ordinary car accident or whatever criminal negligence whereas culpable negligence rests on the assumption that he knew the probable consequences but was intentionally recklessly or wantonly indifferent to the results that's the definition and ordinary negligence is not enough for an  decades where the model penal code has every right so the fact that they use slightly different words to decide to define use these definitions it's essentially meaningless unless you're going to assume that these people are all the same room which they never are and so the other case that i would i would commend to the or any part of this is steve versus money and this was a case where a person fell asleep while driving if someone was charged with manslaughter for doing so in the court specifically said just f harm as compared to the understanding that is substantially likely to do so i mean these are obvious apples right here this is one reason i ask you a question can you just still think that the similar contents has continually relevance in light of the legal landscape as the majority opinion of mark doesn't actually address what we're debating in this case today which is should you express leigh apply the ordinary case approach should be first determine whether the ordinary case of this crime is purposeful or do we just throw it straight out we don't care if it's possible to if it's possible to commit or not purposefully that it's out i don't think this court has a case but johnson and johnson to i think is very clearly before you get there so you would say that tried it in a hideous proceeding to challenge the intent for his guilty plea or it wouldn't really address that issue either but what happened next is what's most fascinating so gaskill decides he wants to get the money from his insurance company for the tourists and nationwide in this case we brief nation by mutual insurance yes it's at six twenty six out the second eight seven he says where nationwide insurance said we're not paying you have a provision in your policy that excludes intentional conduct it was  crime that they charge when you beat someone to within an inch of their life and i mentioned earlier i've read all these cases i read it the brits only see if you commit this crime is couple of things i didn't find any i have a giant excel spreadsheet of all these  and i didn't find any but you know i also learned that this crime is just on what are you making an argument is the alternative aren't you saying there aren't any north carolina cases doing finding this them who knows what its fate is going to be under forty one but which of these she says that he's all these theories don't don't matter  of the road people be convicted on negligence i think that a good job in running them but what is sure you've got all these different theories but if you decide that this crime cannot be solved by all the other assaults potentially with the exception of the ones with intent to kill will fall and i do want to make clear it's my colleague suggested that perhaps it's time to kill them the federal public defender for the eastern district of north carolina is making the argument right now in our courts and i believe in this or that those crimes don't count in this exact same well you make the argument that orse and it's a different case altogether but i think your decision in this case will direct we've been able to parse out the various assault crimes in north carolina dr was an exception to the general rule right so we can distinguish there will be a few and we do think the ones with intent to kill have a specific intent harm changes all angry but to be clear and respond to has about thirty five different result crimes and most of them under this reasoning would be solved a deadly weapon inflicting serious assault on a law enforcement officer assault on a handicapped person they're all going to follow the same argument made here so this  have to intend the force in order to use it so what we say is that all these violent assaults not just this one but the assault with a deadly weapon cetera they involve the use of force because they have to be committed with either actual intent which is a use of conduct require you to undertake the action listen only with awareness of the risk that the injury might occur force might be applied just left that that's not consistent with it's right i think for starters this it is a misdemeanor crime doesn't come down to the mens rea it comes down to whether you have the understanding it's likely to apply not the knowledge not the intent not the purpose and that is what is left of the other circuits in this country to adopt that this categorically violent crime by some other thank you vinson and in peterson the north carolina culpable negligence is less than reckless since so we we would we would argue that to adopt the government's position you would have to overrule your decisions in peterson and that's and because make no mistake the government's argument the force clause is going to result in north carolina involuntary manslaughter also qualify under the violence no your honor i don't believe it and so the supreme court was actually very very careful to note in footnote four we are not saying that our discussion here of recklessness necessarily applies to other force class provisions because and this is something that justice scalia when out in the johnson one when he was talking about physical force of the saying look all of these this use of force in all of these statutes the context matters and that's why i would really recommend the first circuit discussion of this and bennett i think is very are thorough and awful first of all in the misdemeanor crime of domestic violence prevention you're talking about a conduct that would at a minimum it seems too good involve a real real subsidiary this injury and in fact the whole of statute is a title inflicting serious injury there's a reason that that statute was called quite a bit but and then it defined serious bodily injury so it was even saying this conduct involving a real risk of serious injury navigate that trades on that this statute seems to map on to what was even were saying and i'm twenty two g now whatever it was was i don't understand how this serious injury could be inflicted without indifference to the risk of it your honour's and it's a different for two if culpable negligence is the standard wires and that's why it isn't out of and beyond ordinary negligence and something that maps known to recklessness so you've got you've got t two different question your honor the reason the reason why the government is so concerned about this is salt question is that because north carolina probably apply this culpable negligence standard to all sorts of variety of a problems one is getting around why is it which i have never seen happen and the other is trying to convince of this if this is an ordinary negligence statute or something like that  venture that it's not a recklessness stretch both are by the way it's worded and by the north carolina case law and those are two pretty significant problems and your honor i think the difficulty with your interpretation is that it