In Leocal v. Ashcroft, ___ U.S. ___, 160 L. Ed. 2d 27 (2005), the Supreme Court held that to be a crime of violence under 18 U.S.C. 16(a) and 16(b), there must be (1) a risk of the use of force (as distinguished from resulting harm) in committing the offense; (2) the offense must be committed in an active manner which cannot encompass merely negligent or accidental conduct; and (3) in addition to being active, the use of force involved must be violent.       Although Leocal v. Ashcroft, ___ U.S. ___, 160 L. Ed. 2d 27 (2005), stated that it was not resolving the question of recklessness, it calls into serious question decisions like United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. Dec. 10, 2004), and others that rely on a "risk of harm/injury" analysis, including Park v. INS, 252 F.3d 1018 (9th Cir. 2001), United States v. Campos-Fuerte, 357 F.3d 956 (9th Cir. Feb. 04, 2004), and United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. November 12, 2003).  When Leocal gives the example that someone accidentally falling against another person might technically involve a use of force, but is not really be "using force" in the way we normally think of it, it undercuts United States v. Ceron-Sanchez, which stated "in order to support a conviction under [the statute in question] the reckless conduct must have caused actual physical injury to another person. Therefore, the use of physical force is a required element." and supports United States v. Hernandez-Castellanos, 287 F.3d 876, 879 (9th Cir. 2002) (AZ reckless endangerment statute is not crime of violence, since use of force means some kind of intent to use force is required).      Park should be revisited in light of Leocal.  Park found that involuntary manslaughter is a crime of violence based on an earlier Ninth Circuit case, United States v Springfield, 829 F.2d 860 (9th Cir. 1987).   Springfield was the first circuit case in the country to hold that recklessness was sufficient intent to constitute a crime of violence.   As the court admitted in Park, Springfield relied on a finding that was plain error -- in investigating the legislative history of a crime of violence, the Springfield court simply looked at the wrong page, which discussed an unrelated firearms offense, and found that recklessness was sufficient to commit that offense.  Park erred, however, when it said that this error was not  important to the Springfield decision.   In Springfield, the court essentially said: "This is a close case that could go either way, but the thing that tips the balance is the legislative history."  Given that the legislative history was incorrect, and the Springfield court stated that it was a close call, a proper application of the rule of lenity would have required the court to find in favor of the defendant.  Springfield should have gone the other way and been binding precedent for Park.  Park primarily cites Springfield and Ceron-Sanchez, and relies on the injury as opposed to use of force analysis.  The Park decision discusses Springfield and the intent requirement as follows: The misquoted legislative history is found only in a single footnote, which corroborated, not determined, our analysis. We reasoned in Springfield that involuntary manslaughter, by its nature, involves the death of another person, which is highly likely to result from violent force against that person. Springfield, 829 F.2d at 863. Thus, there is "a substantial risk that physical force against the person . . . of another may be used in the course of committing the offense." 18 U.S.C. 16(b). Park, at 1023.      The Ninth Circuit in Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan 12, 2005), reversed an obvious mistake in which Campos-Fuerte failed to consider the fact that "recklessness" under Calif. V.C. 2800.5 can include merely committing three minor traffic violations while eluding a police officer.  Since some of those violations do not require recklessness, Penuliar found that 2800.5 is at least divisible in that way.  The holding of Campos-Fuerte on regular recklessness should be addressed.      The court in Leocal did state, as to 18 U.S.C. 16(b) offenses: "It simply covers offenses that naturally  involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in 16 relates not to the general conduct or to the possibility that harm will result from a persons conduct, but to the risk that the use of physical force against another might be required in committing a crime." Leocal at 383. See also footnote 7.  While Leocal did not answer the question whether offenses involving reckless mens rea could be crimes of violence, this language seems strongly to suggest that where recklessness is defined as "reckless disregard" and such reckless disregard is in relation to the use of force, it is likely to be a crime of violence.       Many statutes defining "reckless disregard" or "recklessness" or even willful and wanton conduct do so in relation to "the possibility that harm will result from a persons conduct", rather than from the use of force.  These statutes should not be considered to qualify as crimes of violence under the Leocal analysis, because of the distinction between injury in general and injury that results from the use of force.      In Penuliar, the Ninth Circuit does not reassess the Campos-Fuerte analysis in light of Leocal, but rather seems to assume it is still good law.  The Penuliar panel did not find the California eluding an officer statute was no longer a crime of violence under the Leocal analysis, but rather said that since California had amended the eluding statute between Campos-Fuertes conviction and Penuliars conviction to include also what now would be merely regulatory offenses, Penuliars conviction may not be a crime of violence under a modified categorical approach unless the government could prove the conviction fell under the "willful and wanton" part of the statute (which it held to be a COV in Campos-Fuerte). In Campos-Fuerte, however, the court analyzed this eluding statute, and said that under California law "Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with wanton and reckless disregard of the possible results. Several phrases express this standard including: "serious and wilful misconduct, wanton misconduct, reckless disregard, recklessness, and combinations of some or all or these."  Given that the California law in relation to "willful and wanton" and recklessness focuses on the risk of injury, rather than intentional use of force, Leocal suggests that a conviction of violating this statute -- even the willful and wanton portion of it - is no longer a crime of violence.       Conflating "willful and wanton" intent with "recklessness" confuses the issue.  It would make sense, for example, that willfully driving your car into somebodys living room or somebodys person would be a COV.  However, recklessly driving your car into somebody or something -- say by looking down to change the radio station, or dial a cell phone - does not appear to be an active, violent use of force any more than driving drunk.  In many states, reckless driving (which involves willful/wanton disregard for safety of persons or property) is -- for all but noncitizens -- the "lesser" offense that prosecutors offer defendants as an alternative to a DUI offense.      Until this is resolved, criminal defense counsel should avoid conviction of violating statutes involving reckless mens rea whenever there is a danger of falling within crime-of-violence related grounds of deportation, i.e., aggravated felony or domestic violence grounds.       Thanks to Katherine Brady and Ann Benson for this analysis.