Two cases decided less than a month apart form a pair of ironically matched bookends, symmetrical in their contradictions.
The first case is SCOTUS’s Rosemond v. United States, decided on March 5, 2014. Rosemond was charged with aiding and abetting a violation of §924(c) of Title 18, which prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.” The defense’s contention was that Rosemond, although a willing participant in a drug deal, was completely in the dark about the presence of a gun until his confederate started shooting when the deal went bust. The issue was whether a person must know that a firearm will be used in order to be held liable as an abettor under §924(c).
The second case is the Minnesota Supreme Court’s State v. Garcia-Gutierrez, decided on April 2, 2014. Garcia-Gutierrez and his co-defendants were charged with burglary in violation of Minn. Stat. §609.582, subd. 1(b), which makes it a first degree offense when a burglar “possesses, when entering or at any time while in the building, . . . a dangerous weapon.” The defendants allegedly (it is a pretrial appeal) broke into a home in Shakopee and carried away a locked safe, which, unbeknownst to them, held a handgun. The defendants were caught after the Prior Lake police received a complaint that a man was slamming a box onto the ground. The issue was whether a person must know that he possesses a dangerous weapon in order to be found liable under §609.582, subd. 1(b).
A Double-Barreled Crime
Justice Kagan’s characterization of the federal firearm-in-furtherance statute in Rosemond seems equally apt as a description of Minnesota’s armed burglar law. Section 924(c), writes Justice Kagan for the Court, creates a “double-barreled crime.” The prosecutor “must show the use or carriage of a gun; so too he must prove the commission of a predicate . . . offense.” The statute “punishes the temporal and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm.”
The holding in Rosemond is that the §924(c) abettor must know that a firearm will be used. He may be convicted “only if his intent reaches beyond a simple drug sale, to an armed one.” He may not have brought the gun to the drug deal himself, but he must have known that a confederate would do so. He must possess “a state of mind extending to the entire crime.”
In Rosemond even the government conceded that an unarmed accomplice must have “foreknowledge” of a gun’s presence. The real question was what that means. The government argued that it is enough if the accomplice continues any act of assistance after having learned of the firearm — maintains his post, for instance, after he spies a gun beneath his buddy’s jacket just as the drugs are changing hands. A standard requiring the abettor to quit his participation at that point, said the Court, might not only increase the risk of gun violence, but it would “diminish too far the requirement that a defendant in a §924(c) prosecution must intend to further an armed drug deal.” For the intent standard to have meaning, the accomplice must have
“advance knowledge–or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. . . . [It] means knowledge at a time the accomplice can do something with it–most notably, opt to walk away.”
An Exercise in Relativity
Garcia-Gutierrez arrives from what feels like a parallel universe. The Court holds that a §609.582, subd. 1(b) violator need not know that he possesses a dangerous weapon. He need not possess “a state of mind extending to the entire crime.” The only mens rea that is required to be convicted under Minnesota’s armed burglary statute is the intent to commit a burglary.
What is most important to the Court is that subdivision 1(b), the “possesses . . . a dangerous weapon” clause, contains no knowledge element. But neither does Rosemond’s §924(c); its “uses,” “carries” or “possesses a firearm” is unqualified by any mental state requirement. The well-regarded Minnesota Court of Appeals judge who authored the unanimous lower court opinion in Garcia-Gutierrez did not view the absence of a knowledge element as determinative. Judge Chutich relied on the Minnesota Supreme Court’s State v. Ndikum, which says (citing lots of SCOTUS cases) that statutory silence is not normally a sufficient basis to dispense with mens rea since statutes lacking mens rea impose strict criminal liability and are disfavored.
But identifying a “crucial distinction,” the Minnesota Supreme Court distinguishes the cases imputing intent elements into silent statutes, and essentially mints a new criminal strict liability rule. In “those other cases,” says the Court, it was “the act of possession itself that was a crime. Were no mens rea implied, the crimes at issue in those cases would have been strict liability crimes” — read: genuine strict liability crimes. Failing to impute a knowledge-of-possession element into a hybrid statute such as §609.582, subd. 1(b), says the Court, does not result in genuine strict liability because §609.582, subd. 1(b) still requires proof that the actor intended to commit a burglary. Traditionally, strict liability analysis has distinguished between “public welfare” offenses, where such liability may be imposed, and felony and other offenses carrying severe punishments, where it may not. The Court’s possession/possession-plus binary is new. Its suggestion that strict liability can only describe a statute whose intent elements total zero is, likewise, new.
“Just what I choose it to mean,” said Humpty Dumpty
The bottom line, says Garcia-Gutierrez, is that
“the crime here is not possession; the crime is burglary. Possession of a dangerous weapon determines the severity of the punishment, not whether a crime has been committed.”
Recall Rosemond’s “double-barreled” crime. Garcia-Gutierrez involves, apparently, only a single-barreled one. The statute in Rosemond criminalizes “the temporal and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm.” The statute in Garcia-Gutierrez does not criminalize the conjunction of anything. That is because only one of the two acts that together pose an extreme risk of harm is a crime. But take care if you happen to have also done the thing that is not a crime. It will double your prison sentence.
Justices Wright and Page concur in the majority’s conclusion that knowledge of possession is not an element of armed burglary based, in part, on “the structure” of §609.582, subd. 1(b). (They go on to chide the prosecution for charging the defendants with that offense in the circumstances of the case.) I acknowledge the structural difficulty. A parallel provision to subdivision 1(b), subdivision 1(a), converts a burglary from second to first degree where a burglar enters a dwelling when someone is home. I have a gut response to that. I don’t care if the damned burglar didn’t know that someone was home. I don’t want him to be able to raise not knowing as a defense.
But there are principled bases for selectively imputing intent elements into §609.582. A good starting point would be to look at the types of misconduct for which proof of mens rea was deemed necessary at common law. There has been plenty of discussion lately about incarceration addiction; modern gun and drug regulatory schemes are replete with strict liability elements. We jack up criminal sentences for no better reason than that Joe Blow had it coming; he shouldn’t have been there, he shouldn’t have been doing that in the first place. As Rosemond reminds us, criminal culpability is supposed to be proportionately related to degrees of moral choice. When the criminal code cannot be bothered to take an interest in matters of conscience, it is just a bully.