FEATURED IN VEHICLE OPS
Recently, the Supreme Court ruled that leading officers on a high-speed chase could be considered a violent felony used to enhance the sentencing of career criminals under the Armed Career Criminal Act (“ACCA”).1 The ACCA was designed to get tough with habitual felons.
In Sykes v. United States,2 Marcus Sykes was convicted in a federal court of being a felon in possession of a firearm, and was sentenced to 188 months in prison. He appealed to a federal appellate court, which affirmed the lower court’s decision. Sykes petitioned his case to the U.S. Supreme Court.
The issue before the U.S. Supreme Court was the interpretation of a particular section of the ACCA to determine whether a previous conviction was for a “violent felony.” More specifically, does the “residual clause” of the statute, which identifies violent felonies, include conduct stemming from fleeing and eluding the police on a prior occasion?
In this case, Sykes pleaded guilty to being a felon in possession of a firearm in violation of a federal statute3 due to an attempted armed robbery of two people at gunpoint. At the time of this incident, Sykes had at least three prior felony convictions: two armed robberies and a felony involving Indiana’s “resisting law enforcement” law.
The federal statute for unlawful possession of a firearm statute carries a maximum sentence of 10 years of imprisonment.4 However, if when the crime of unlawful possession occurs while the felon had three previous convictions for a violent felony or serious drug offense, the punishment is increased to a minimum term of 15 years.5
In this case, the previous conviction in question resulted from a violation of an Indiana statute, which makes it a criminal offense whenever the driver of a vehicle knowingly or intentionally flees from a law enforcement officer.6 This statute is commonly referred to as Indiana’s “resisting law enforcement” law.
When Sykes was convicted under the Indiana “resisting law enforcement” statute, he used a vehicle to flee after a police officer ordered him to stop. The police officer, after observing Sykes driving without using headlights as needed, activated his lights to conduct a traffic stop. Sykes refused to stop and a chase followed. According to the police reports, Sykes wove through traffic, drove on the wrong side of the road and through yards occupied by bystanders, passed through a fence and struck the rear of a residence. He then fled on foot and was only located with the assistance of a police canine. Sykes was convicted of a Class D felony as a result of that incident.
With the case involving the sentencing of Sykes for the federal statute for unlawful possession of a firearm, the federal court ruled that Sykes’ felony conviction for fleeing and eluding the police, and two prior armed robbery convictions, were violent felonies for purposes of
§ 924(e) under the ACCA and sentenced Sykes to 188 months in prison.
Sykes appealed to the Seventh Circuit Court of Appeals. There, he conceded that his two prior armed robbery convictions were violent felonies. He also didn’t disagree that his fleeing and eluding the police was a felony. However, he claimed that the latter offense wasn’t violent within the meaning of the ACCA.
Unfortunately for Sykes, the Seventh Circuit agreed with the lower court’s decision, which was also consistent with the Courts of Appeals in the First, Fifth, Sixth and Tenth Circuits, where they generally interpreted the act of fleeing from the police as a crime of violence. Yet, the Seventh Circuit’s decision conflicted with the 11th Circuit and was “in tension, if not in conflict, with the reasoning” of the Eighth and Ninth Circuit Courts of Appeals.7 As such, the U.S. Supreme Court took on Sykes’ further appeal to interpret the meaning of § 924(e) of the ACCA.
The Supreme Court’s Decision
The Supreme Court, in a 6-3 decision, took a categorical approach in determining whether the offense at issue—fleeing and eluding the police—is a violent felony. In doing so, the Court looked at the specific elements of § 35-44-3-3 of the Indiana Code.
Under § 924(e), an offense is deemed a violent felony if it’s a crime punishable by more than one year of imprisonment that:
(i) has as an element of use, attempted use or threatened use of physical force against the person of another; or
(ii) is burglary, arson or extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B).
No doubt, resisting law enforcement through felonious vehicle flight doesn’t meet the condition set forth in paragraph (i) and it’s not listed as one of the specific offenses in paragraph (ii). Thus, to be a violent crime under § 924(e), the offense must “otherwise involve conduct that presents a serious potential risk of physical injury to another.”
According to the Court, the question was whether Indiana’s fleeing and eluding by vehicle fell within the “residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another.”8
The Court stated that the offenses listed in Section (ii) of § 924(e)(2)(B) provide guidance:
“When a perpetrator defies law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.”9
The Court continued: “Another consideration is a comparison to the crime of burglary. Burglary is dangerous because it can end in confrontation leading to violence. The same is true of vehicle flight, but to an even greater degree. The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case, requires, the officer to give chase. The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide.”10
“Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended. Scott v. Harris11 rejected the possibility that police could eliminate the danger from a vehicle flight by giving up the chase because the perpetrator ‘might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.’ And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest. Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.”12
More importantly: “Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.”13
Finally, “[u]nlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.”14 Therefore, based on all of the foregoing, it was easy for the Court to find that felony vehicle flight is a violent felony for purposes of the federal law.
Officers must be mindful of the fact that a felon engaging in the crime of fleeing and eluding as one of the underlying crimes leading to one of three convictions may not be enough to trigger the sentence enhancement of the ACCA. It’s only when the felon has been convicted of the felony of fleeing and eluding in a vehicle that it may be used for ACCA purposes.
Without question, several states have yet to make the offense of fleeing and eluding in a vehicle a felony, which is all the more reason to do so in law enforcement’s efforts to keep violent felons behind bars longer.
Indiana’s “Resisting Law Enforcement” Statute
(a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;
(2) forcibly resists, obstructs or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
(3) flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop;
commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).
(b) The offense under subsection (a) is a:
(1) Class D felony if:
(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or
(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on another person or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person.
1. 18 U.S.C. § 924(e).
2. U.S., 131 S.Ct. 2267 (June 9, 2011).
3. 18 U.S.C. § 922(g)(1).
4. 18 U.S.C. § 924(a)(2).
5. 18 U.S.C. § 924(e).
6. Ind. Code § 35-44-3-3.
7. 131 S.Ct. 2267, 2272.
8. Id. at 2273.
10. Id. (citations omitted). Indeed, Sykes had marijuana in his possession and two prior felony convictions.
11. 550 U.S. 372, 385 (2007). See July 2007 Law Officer for article on this favorable decision for law enforcement.
12. 131 S.Ct. at 2273-74.
13. Id. at 2274 (emphasis added).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.