Eleventh Circuit Holds Crime of Eluding a Police Officer at High Speed or with Wanton Disregard for Safety is a Crime of Violence in the Same Category as Burglary and Arson

Last week, the Eleventh Circuit decided U.S. v. Harris. Anthony Harris was charged in federal court with being a felon in possession of a firearm. Mr. Harris’s felony conviction was under Florida Statute § 316.1935, which makes it a second degree felony to flee or attempt to elude a police officer while driving at a high speed or in any manner which demonstrates a wanton disregard for the safety of persons or property.

Mr. Harris fled from police while driving between 70 and 80 miles per hour, eventually crashing his car into a tree and injuring his passenger. The Eleventh Circuit held that such a crime qualifies as a “crime of violence” along the same lines as burglary and arson.

As we mentioned in this post two weeks ago, the law regarding “violent felonies” under the Armed Career Criminal Act (ACCA) has been in a state of flux following the Supreme Court decisions in Chambers, Begay, and James in the past couple of years. We discussed Chambers in this post. Courts have looked to those decisions to define “crime of violence” under the Sentencing Guidelines, as well, because the definitions for both phrases are virtually identical.

In James, the Supreme Court held that federal courts should look at the elements of the predicate offense categorically to determine “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” In Begay, the Supreme Court further enhanced the test, explaining that the predicate offense must be similar in kind and degree to the examples specifically enumerated in the ACCA: burglary, arson, and extortion. The Court in Begay held that drunk driving did not fit the bill.

Last week in Harris, the Court applied James and Begay, finding that “[f]leeing from the police at high speed or with ‘a wanton disregard for safety of persons or property’ does indeed ‘show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.'” It held that the crime is violent, like burglary, because it displays callousness toward risk, and aggressive, like arson, because the driver “wields a weapon in a place … populated with innocent drivers and pedestrians.” For those reasons, it held that the predicate offense was a crime of violence for the purposes of the Sentencing Guidelines.

Because we see more parallels between this crime and drunk driving than with burglary or arson, we are disappointed with this decision.

The Eleventh Circuit’s opinion in Harris is available here.