Abstract
Federal law, 18 U.S.C. § 924(c), imposes a sentence enhancement on defendants who use or carry a firearm in relation to a “crime of violence.” In 2021, however, the United States Supreme Court decided the case of Borden v. United States, where it held that a similarly worded statute—and thus § 924(c)—applies only to crimes that have an element of “targeting” (i.e., a requirement that the defendant “consciously direct” his conduct towards a particular “target”). Deciding what crimes are targeted, however, has turned out to be a much more difficult task than anticipated. Fortunately, in Borden, the Court established some guideposts. Specifically, the Court held that crimes committed purposefully or knowingly are targeted, whereas crimes committed recklessly are not. But the Court explicitly refused to address crimes requiring a mens rea between recklessness and knowledge—crimes like arson and second-degree murder. Instead, Borden delegated this difficult task to the circuits.
Three years after Borden, the circuits are finally arriving at a consensus: Second-degree murder—a crime of malice aforethought—is targeted, but arson—a crime of malice—is not. A close look at the relevant decisions, however, reveals that Borden is being applied inconsistently. No distinction between malice and malice aforethought justifies disparate treatment between arson and second-degree murder.
Without a relevant distinction between malice and malice aforethought, arson and second-degree murder must be treated similarly under § 924(c). Using the reasoning of Borden, this Comment concludes that neither arson nor second-degree murder is targeted, and thus, both fall outside of the scope of § 924(c). But it is absurd, of course, to conclude that arson and second-degree murder are not crimes of violence. Therefore, this Comment suggests that the Supreme Court should more clearly define what kind of conduct is targeted. Specifically, this Comment proposes that the Court should define targeting as “the awareness that an act is ‘more likely than not’ to have a recipient.” If adopted by the Court, this definition brings heinous crimes like arson and second-degree murder into the scope of § 924(c).
Recommended Citation
Mateer, Nathan P.
(2024)
"In the Crosshairs: A Discussion of “Targeting” in Borden v. United States,"
Liberty University Law Review: Vol. 19:
Iss.
1, Article 5.
Available at:
https://digitalcommons.liberty.edu/lu_law_review/vol19/iss1/5