In Borden v. United States, the Supreme Court ruled in a 5-4 decision that a criminal offense with recklessness as its mens rea cannot qualify as a "violent felony" under the Armed Career Criminal Act (ACCA). Charles Borden Jr., who had three prior convictions for aggravated assault, pleaded guilty to federal gun possession charges and was sentenced under ACCA's mandatory minimum provision due to his previous violent felonies. However, he argued that one of his assaults fell into the category of reckless conduct rather than intentional or knowing harm - thus it should not be considered a violent felony. The court agreed with him stating that only crimes involving intentional or purposeful conduct can count towards an offender’s qualifying predicates under ACCA.

In the dissenting opinion for Borden v. United States, Justice Kavanaugh argued that the Court's decision unnecessarily complicates and confuses the Armed Career Criminal Act (ACCA). He contended that ACCA should apply to all crimes involving a substantial risk of physical force against another person, regardless of whether this force is applied intentionally or recklessly. According to him, both intentional and reckless conduct can result in serious harm; hence they should be treated similarly under ACCA. Furthermore, he criticized the majority's reliance on statutory interpretation principles like "the rule of lenity" and "constitutional doubt," stating these were improperly used as tie-breakers in an otherwise clear case. He also expressed concerns about potential negative implications for federal criminal law more broadly if recklessness was not considered a “use” of force.