In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida’s assault statutes:
- Does the first element of assault as defined in Fla. Stat. § 784.011(1) — «an intentional, unlawful threat by word or act to do violence to the person of another» — require specific intent?
- If not, what is the mens rea required to prove that element of the statute?
The Court reconsidered its opinion after the Supreme Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021). In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)–wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA’s elements clause–because Florida aggravated assault is not a specific-intent crime. In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault. Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or something just like it, and Florida’s lower courts are split on the mens rea required by the Florida assault statutes, the Court certified the above questions to Florida’s Supreme Court for its consideration.