Thursday, October 28, 2021

Assault by a prisoner by “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease," as prohibited by 18 Pa. Cons. Stat. § 2703, is not a crime of violence under the career offender guidelines

 Under the career offender guidelines, a crime of violence is defined as the “use, attempted use, or threatened use of physical force.” U.S.S.G. § 4B1.1(a)(1). The “use of physical force” involves the “intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.” The qualifying physical force may be direct or indirect so long as it is “strong enough to constitute power,” and more than the “slightest offensive touching.” See United States v. Chapman, 866 F.3d 129 (3d Cir. 2017).

 In United States v. Quinnones, https://www2.ca3.uscourts.gov/opinarch/202709p.pdf, the Court determined that the least culpable form of assault by a prisoner under 18 Pa. Cons. Stat. § 2703 was not a crime of violence. In analyzing § 2703, the Court used the modified categorical approach because “certain elements of the statute fit within the definition of a crime of violence, while other alternative elements d[id] not.” United States v. Jones, 740 F.3d 127, 134 (3d Cir. 2014). The parties agreed that Quinnones was convicted of the statutory section of “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease. The Court then decided that “spitting or expelling fluid in their least culpable forms do not involve force for the purpose of § 4B1.2 because such acts are not capable of causing physical pain or injury.”

 This spitting a communicable disease offense is also not a crime of violence because it can be committed with recklessness or negligence. Section 2703 has two state of mind components. To violate § 2703, the actus reus must be performed knowingly or intentionally, a defendant must knowingly or intentionally cause another to come into contact with a fluid by engaging in certain specified acts, such as spitting. But the defendant only needs to have known or should have known that the bodily fluid came from someone with a communicable disease. “Should have known” embodies the standard for negligence and cannot be a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 9, 13 (2004).

 

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