you the single issue presented in this case is whether mr hankins north carolina conviction produce charge of a firearm into an occupied building qualifies as a violent felony for purposes of the arm career criminal act if it does not then he is eligible for relief from his unconstitutional fifteen year mandatory minimum sentence before i get to mr higdon's primary argument i want to say a few words rea i know a lot of been written about mens rea in this case about whether reckless offenses as a category qualifies violent felonies under the c c a about whether the north carolina conviction intentional or knowingly or recklessly or something else but this case does not rise or fall on mens rea in fact mens rea is a distraction what this case is about is about whether the act criminalized by the north carolina statute by its essential elements consist of the act that the arm career criminal act requires for an offense to qualify under the force clause fights essential element is the absence of a victim exactly so by it's essential elements the north carolina conviction does not require a victim but because the properties occupied isn't there of the them in the occupied property that is exactly the core question in this case does the fact that the north carolina statute requires that the uk the building be then occupied at the time of the discharge of the firearm does that fact mean that the force used was against the person of another as required by the force clause and the answer we know is from north carolina law and the north carolina supreme court has told us that the statute by its essential elements and uses those words does not include an assault against a person so the bullet doesn't have to hit anybody exactly the person could sleep through the whole thing one of things i think that is most interesting about the debate really oddly about whether reckless offenses qualify which is not what we're talking about but in the recent decisions in which this court has debated whether reckless to offenses qualify it has said things to show that it is in complete agreement about the act required for the force costs and in fact  require the attempt or threatened use of harm or even the attempted or threatened you i mean that that is in the exactly it is in the force here right the use attempted use threatened you right so you don't actually have to have the harm  if it's attempted or threatened or threatened offense an attempted offense still have victims there's still a person on the other end of the threat there's still a person on the other end of the attempt well the attempt i mean it would seem it well the use of force there we have use of force against the person of another and there's no victim here is your position so per you know both sides of the cases you mentioned there is no use of force against a person of another and then we have attempted use of force against the person of another and threatened use of force now attempt is a specific intent crime all day long yes and that means i mean ironically in light of  you must specifically intend to shoot the person would that be your view well if we're talking about mens rea right yes i mean i think there's there's a mens rea asked requirement for an ten that is not present the same way for use my position is that even if it's an attempt requires a specific intent that doesn't answer the question whether the act house and somebody shoots in they're actually trying to get that person specifically intending that they fail to hit the person person again doesn't wake  and person drives off i mean that's that is a complete offense of you know attempted use of force against that person right where you've just described the factual circumstances of a particular offense the issue here is whether the essential elements of the north carolina conviction by its terms right requires that there be a person harmed or a victim on the other side of the only what i'm saying is i don't see the harm i don't really see a harm requirement for attempt but i do see a very stringent mens rea a requirement ok so let's talk about that i mean that's ok so since i feel like well just before we move on to men's right because it looks like we're going to have to step just a little bit into that quagmire and you know the tricky thing about these cases is there's men rip mens rea as to two different things exactly ray as to the employment of force and mens rea as to the consequences of that employment and it's really important keep it straight and so we might want to just kind of that's a reference i was going to go there but before i do i just want to point out in our briefs it wasn't completely clear as it was written in the briefs but in our briefs there are actually five cases the deal with occupied buildings and five circuits have held and two of them were actually looking at this north carolina statute five have held that discharge of a firearm into an occupied building does not qualify because the act of doesn't encompass the force  against the person of another so and i'm glad we're going to actually step a little bit into mens rea because you're exactly right the north carolina statute has been interpreted by the north carolina supreme court to require only that the defendant have reasonable grounds to believe that a person or the building might be occupied might be occupied that's it objective test that is an objective test and the beauty of this is we don't even have to worry about whether this court sticks with its for me make sure i read it exactly recklessness a person acts with recklessness when he quote disregard substantial risk of harm of which he is aware that's a subjective awareness a north carolina statute doesn't require the defendant be subjectively aware and in fact the best case to show this is this is the case state versus everett that's the case that involves the nightclub the flying salsa and in that case the court itself looked at the objective evidence some of which didn't even happen the night of the shooting it was the one of those with the lights were dim there were a lot of people on the streets the the club was closed but usually the club was open late on other days these are objective pieces of evidence that the court looked up to hold that the person that the jury reasonably found that the defendant had reasonable grounds to believe that the building might be occupied the standard which is also very interesting is that the standard this objective standard isn't even a knowing standard right and knowing standard requires what and this is just from the model penal code aware that his conduct is only required nature or that the required attendant circumstances exist so even if we had if you even have his court were to hold that shooting into an occupied building necessarily means use of force against the person of another mr hamdan still prevails because the north carolina statutes mens r it isn't knowing it isn't intentional because each one of those require subjective awareness not going to satisfy their use or attempted use it will not satisfy the almost basically negligence standard it comes very close to negligence standard in fa but really when you look at an actual negligence standard in criminal law it's actually a little bit closer to strict liability which is we could debate that forever but it's at least closer to a negligence standard so you i mean you say it's not attempted because require some form of intent to threat or for some paul i would say intent that's similar to the attempted use case law that says threatening bad things is a specific intent crime you have to say this you know intending that the person receive it as a threat rather than misunderstand it or whatever why think well i have to say i don't have a my fingertips and i'd be glad to submit that if you want to but i do know from my experience with this question i can say off the top of my head that there is case law to support the proposition that the person have to intend to threaten the recipient of the threat and again i have to go back that there has to be a recipient of the threat so even if there isn't a specific intent requirement and there is some case law in the hobbs act robbery area i will tell you digital question just i was just curious is it use attempted use or threaten years our primary theories that would fall under use however i would point out that judge wilkinson and his very powerful the saints in that fourth circuit case that we've been discussing did suggest offense might also might also count under an attempted use or threatened use theory but we think the most direct and easiest way to see this is under the use theory and the reason why i think there was a lot of discussion for that was distracting about the use of force because there was some discussion about whether there's a another it doesn't say that the force has to result in injury or harm to the other says there must be a victim it's i mean that's her bail but right well that there must be a victim with the question is is the person does the person that you use force against do they have to actually be harmed when you use force against them i mean you know that having a victim with respect to the use of force against the person of another would suggest that the force most harm that person i mean how can you have a victim with the use of force against the person of another without harming the person of another because you can watching what i was a force in somebod direction you can be directing force against them and not actually harm them that would still count as a use of force against the person of another what's an example of a case where that's happened an example a case i mean take the shard throwing incident provided in for example provided and was seen somebody throws a plate against the wall now that shirt may hit the other person but it may not hit the other person in either case force his or her example justice kagan example it hits and injures the person in that example and let us in that's not just i mean she put that in there on purpose i mean if the government's position today is that you can have a victim from the use of force against  person of another with with nobody getting hurt i mean that that just takes this i mean i did that doesn't make a lot of sense to me i'm having a hard time understanding that but let me try and explain what the position is just catholic's the position is that you can use force against another when you are volitionally employing force in the direction of another person against means yes sitting on the person not in their direction against means i mean at some point there's got to be you know a bedrock bottom in this whole regime i mean against the person of another means you hit the person the force interacts directly with the person of another not nearby not in the direction interacts directly with that person i think that that i that's one way of reading the word against but i don't think that's the only way everyone the word against against is a direction yesterday i mean what's what's a better way now not one way or another what's a better way a better way reading it as a directional proposition indicating where is the force being directed is it being directed against the person is being directed against that's you know like bob seger against the wind right it just depends on the context though against the wind is a little different from against the person well i think it's important when you look at the definition that the supreme court has used force right then when the supreme court talked about violent force in johnson they said force capable of causing physical pain or injury to another doesn't have to be force that actually causes pain or injury to another it simply has to be capable with success at the use of force in the force cause doesn't have to actually result in pain or injury to another certainly if it does then it then would count but it doesn't have to result and again that doesn't require it against the person rather or just against a building that occupied well against a building that's occupied and when you're directing a force in in a occupied willy but if there's a person it could be a very large building and the person could be way it want to end but if you fire the gun into any portion of the building it may not even be close to the person but it would still be a violation because it's a discharge of fire into a building that is occupied somewhere i understand your concern with that have with article but that is not a realistic there's no realistic probability the north carolina would apply its offense in that way but that ok what about domestic court of appeals margin of harm to an occupied vehicle actually i would like to address the message case because it's been mischaracterized repeatedly by the defendant here the holding of the message case was simply recognizing men are standard double jeopardy principles an assault with a with a deadly weapon which is that was involved there is a distinct offense than shooting into an occupied building because each offense involves an element that the other does not so north carolina's assault that you requires that bodily injury that person suffer serious bodily injury the shooting offense requires that you shoot into an occupied building that element is not in the assault statute the other one element is not in the shooting statute so there's no sort of broad presumption the say that shooting offenses can never be assault it's simply to point out that that line is been read out of context repeatedly by the defendant here to suggest that somehow this offense doesn't involve an assault it's just that this offense is a distinct offense from assault in many cases this offense will involve an assault especially when you shoot into an occupied building and in fact hit somebody and so the question is real quick i mean would you agree that this crime does not as to the intent temps which i know is not your principal argument this crime does not require the north as provided by the north carolina courts is that you have to intentionally fired the weapon with knowledge and i want to respond you know no not with knowledge with reason to believe which is a whole different ballgame than conscious knowledge well either with knowledge or when the person themself has reasonable grounds to believe it's not a objective standard it is a subjective standard as a person a person in that position has a reason to believe yes so that person must have that knowledge or believe there was anyone actually to hear a threat or to feel threatened right now necessarily i mean that means no ok i mean i just it's helpful to clean up the case you asked about mens rea and threats cases and i think one and the supreme court there expressively declined to address whether recklessness would be a sufficient mens rea but josh justice alito did suggest that in his concurrence the supreme court simply just decided not to address that issue remains an open issue but that that's  case where does directly address sort of mens rea elements in the context of threats oh ok so back to use of force against the person of another how does the use of force against a building get how does that t me the use of force against a person of another because you're not using force against the building you're using force against an occupied building you are directing force to into a place in which people are in fact present so your point is if the bullet is traveling in the same direction i mean within some factor of where the occupant is the nats if it is and the person of yes if it is being directed into an area where people are present then that hou another what kind of vector are we talking about i mean i'm not trying to be flippant but you know i mean let's say it's it's a forty or forty degrees off still striking the structure but they're forty degrees off from where the person located i mean how far does it go as opposed to a test where you actually have to hit the person well i think the issue is have they directed into an area where people are present and i mean if they've directed into it but they you know they've missed they have still you know sort of used force in that you know toward another they just unsuccessfully used force if that makes sense and which would count a they maybe in that case it would be an attempted use of force again the statute encompasses use or attempted use ok the i think the you know the fourth circuit has ruled on this issue and i know you like the  judge wilkinson but you know this is a north carolina statute we're not north carolina statutes are not routine for us to interpret but they are for the fourth circuit should we be somewhat reluctant to create a circuit the issue that the fourth circuit as a rule the court shouldn't be reluctant when the fourth circuit is misinterpreted federal law and that's what happened in this case the court in the fourth circuit misinterpreted the requirements of the use of force clause as requiring a specific targeting requirement that would essentially require a purposeful or intentional mens rea with respect to every use of force cause offense this court has never held that and especially after boise and her we that is not the law in this circuit so the to the extent that the force circuit has misinterpreted the use of force clause its analysis is really not persuasive and we would urge the court instead to follow the analysis that was used by the seventh circuit in the curtis case which involved a statute very similar to this where there was the statute required both actual occupancy and knowledge or constructive knowledge of that occupancy and the seventh circuit said that that in that kind of situation you do have use of force against the person of another and  cited several cases from other circuits all of those cases involve a statute either where occupancy was not required it's just it's just it seems like the government is just writing as in for revenge is just writing against the person of another out of the statute it's a restrictive clause and means something and here i mean there had to do with the mens rea of it here it hasn't do with just having a victim i mean rebase said you must have a victim very day said that individuals who are inside buildings that have been shot at are victims of that offends i mean they have received force directed against them it's not an element of the north carolina crime and that's where your argument goes down well i think the  issue is that this court has consistently said that whether the element is specifically listed in the statute is is is somewhat irrelevant under the use of force cause as long as the commission of the offense itself involves the use tempted use or threatened use of force this court has been consistent in that if you look at that the use of force somehow has to be baked into one of the elements there yes and here there is a use of force a discharge of a firearm the use this whole thing the whole thing has to use of force against a person of another that that whole phrase whatever it means all that meaning must be captured within elements in the crime there must be captured within the offense yes and the offense does require people to be present in the location where the forces are good but know what it but that just being present doesn't mean you're a victim does it it means of course has been directed against you if you were in an area well i mean yes or no yes or no are you a victim if you're just president when the force it's the building yeah as a matter of the elements of this offense yes you are a victim you are a recipient of that force that has been directed in  into the area in which you are present you may not have actually been injured but that doesn't mean you're not a victim in fact i think it's important to look at how north carolina courts have interpreted the statute they've consistently said that this statute was designed to protect people in the statute doesn't say that when the person has to be aware of it and be frightened or whatever adverse consequence you're implying victim victimhood from all the person sort of hit the building you know and somebody's got to be in doesn't that there's no sort of you rea with the person inside in terms of what they have to think or feel as though there is no requirement as to what the individuals inside the building have to feel but there is a requirement that the firearm be discharged into the building well people are in fact present in it in the defendant has to do so intentionally and he also has to know or have constructive knowledge that people are in fact inside the building it's our contention that in doing so he will have  against pete the person of another namely the people inside the building and that's what's required under the use of force cause and for that reason we submit that this offense counts ok unless there are other questions were all right thanks for your patience and  do have a two or three very quick point want to as i want to make sure it's clear that mr higdon does not assert that there has to be some kind of injury to a person in order for there to be a victim or that  be harm to a person in order for there to be a victim a person be a victim because of their perception of the force being directed at them so this court can actually hold there is no victim  even even if we assume that there is no injury there has to be some sort of perception of the harm that's what makes someone well i mean doesn't that does that potentially create a problem for you i mean they're going to presumably in most cases they're going to be aware at some point that somebody shot into their house well there has to be an immediate perception of harm and we're going to do it well that's what the person that's what against a person means we're talking about a body in time at the time of the force being exerted but we can actually move away from well before i move away from that i also want to sort of correct something which is that the cases that we cite that involve occupied buildings are actually in those states statutes it's required that the building be occupied and yet the courts of appeals held that there was no force used against the person of another in ford kansas statute it was required that the building be occupied the fifth circuit pharo it was required that the building be occupied the district court was actually incorrect when it said that the building did not have to be occupied but the case law is clear that the building has to be occupied in what the what the fizzer get said in that case was that in some cases the building might not be occupied but in fact one of those class four felonies was occupied building the ninth circuit unnerve as gomez although it decided the case on the men's rate grounds it said that the act need only be directed toward the dwelling or building and under that statute the building had to be occupied the last thing i like to point out is the case and i believe judge griffin you might have been talking about this case i'm not sure cannady is the state case that involves a defendant who actually intentionally pointed the firearm away from people in order to avoid harming them and the and the bullet went into the exterior of the building so under north carolina law into doesn't mean into into means act it also means against like crashing into a tree and so the bullet can just go to the exteriors of of the first floor of a ten stor building and your person could be up on the tenth floor and there could still be a confection the last thing is about mens rea i have to go back to that even if a threat could be conveyed recklessly because this statute has an objective test a reasonable grounds to believe that the building might be occupied that doesn't even qualify as reckless for these reasons again we asked the disc that this court reversed the just record fake hate m