On September 7, the United States House of Representatives passed a bill (247 to 152) that would define the term "crime of violence."
H.R.6691, otherwise known as the "Community Safety and Security Act of 2018," was drafted in response to a recent ruling by the Supreme Court that the term "crime of violence" as it pertains to immigration law was too vague.
According to Kevin Johnson of SCOTUSBlog:
An immigrant convicted of an "aggravated felony" under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of "aggravated felony" incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a "crime of violence" to encompass "any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
A lawful immigrant from the Philippines, James Garcia Dimaya has lived in the United States since 1992. He has two residential burglary convictions, neither of which involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit overturned the BIA’s order, finding that Section 16(b) was unconstitutionally vague.
The Supreme Court agreed.
The text of H.R.6691 reads in part (modified for clarity):
The term "crime of violence" means an offense [that] is murder, voluntary manslaughter, assault, sexual abuse or aggravated sexual abuse, abusive sexual contact, child abuse, kidnapping, robbery, carjacking, firearms use, burglary, arson, extortion, communication of threats, coercion, fleeing, interference with flight crew members and attendants, domestic violence, hostage taking, stalking, human trafficking, piracy, or a terrorism offense as described in chapter 113B (other than in section 2332d);
or...involves the unlawful possession or use of a weapon of mass destruction; or...that involves use or unlawful possession of explosives or destructive devices described in 5845(f) of the Internal Revenue Code of 1986;...that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or...that is an attempt to commit, conspiracy to commit, solicitation to commit, or aiding and abetting any of the offenses set forth in paragraphs (1) and (2).
...The term "firearms use" means conduct described in section 924(c) or 929(a), if the firearm was brandished, discharged, or otherwise possessed, carried, or used as a weapon and the crime of violence or drug trafficking crime during and in relation to which the firearm was possessed, carried, or used was subject to prosecution in any court of the United States, State court, military court or tribunal, or tribal court. Such term also includes unlawfully possessing a firearm described in section 5845(a) of the Internal Revenue Code of 1986 (such as a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun), possession of a firearm in violation of sections 922(g)(1), 922(g)(2) and 922(g)(4), possession of a firearm with the intent to use such firearm unlawfully, or reckless discharge of a firearm at a dwelling.
There are multiple concerns regarding the bill. It names several seemingly non-violent offenses as "crimes of violence," and appears to state that the mere possession of a firearm during a criminal offense, even when unused, enhances the severity of such a criminal offense.
Only four Republicans voted against the bill, which was sponsored by Rep. Karen Handel (R-GA). One of the representatives who voted against it was Thomas Massie (R-KY).
The Daily Wire spoke with Massie, who is concerned that the firearms provision could be used as the "basis for other laws."
DW: What are your concerns regarding this bill?
MASSIE: Right now, the definition would be used to determine the threshold to initiate deportation proceedings for somebody who’s here illegally or even possibly legally. One of my concerns is that once you establish a definition in the federal register, that definition now becomes the basis for other laws. For instance, I can imagine in my lifetime a law being introduced that says one cannot buy a firearm if they’ve perpetrated a "crime of violence." And "crime of violence" will be defined very conveniently here in the context of deportation hearings, but it will be used elsewhere. It’s important to look at the definition for that reason because it will get recycled into other laws.
[Massie noted that drug trafficking while in possession of a firearm seems to be defined in the bill as a "crime of violence."]
I reject the notion that something that is legitimately a crime becomes a worse crime merely because you possessed a firearm at the time. So, I have a real problem with the firearms possession enhancement part of the bill. If you’re a conservative and you don’t want more gun control, then this bill should concern you because it reinforces and extends the notion that the crime is enhanced by the presence of a firearm.
DW: Why didn’t other Republicans vote against this bill?
MASSIE: I think this is one of those bills where you’re considered tough on crime if you vote for it and you’re considered possibly weak on crime if you don’t. I don’t have a problem deporting people who commit crimes; I have a problem with a new definition of a whole category of crimes in our federal register that will now be used in other contexts.
Massie also spoke about the process by which this bill was moved through the House:
It’s rather arrogant to think that a bill that’s this important doesn’t need a committee hearing, or a committee markup. This hasn’t been thought through very well. It should have had a hearing in front of the whole Judiciary Committee; the "subject matter experts" could have vetted this bill.
Massie wryly concluded: "Maybe the reckless discharge of legislation like this should be considered a crime of violence against the American people."
The House Liberty Caucus, which is chaired by Rep. Justin Amash (R-MI), released a statement slamming the bill:
However, Reason reports that on the House floor, bill sponsor Karen Handel (R-GA) stated: "I can assure my colleagues this bill is not overly broad. It's not a dangerous over-expansion. Instead, it's a carefully crafted response to the Supreme Court's recommendations."