                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 06-2431
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.
ARTEMAS BOYD,
                                               Defendant-Appellant.
                           ____________
              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
           No. 1:05CR00209-001—Sarah Evans Barker, Judge.
                           ____________
   ARGUED NOVEMBER 14, 2006—DECIDED JANUARY 30, 2007
                           ____________


  Before EASTERBROOK, Chief Judge, and POSNER and COFFEY,
Circuit Judges.
  POSNER, Circuit Judge. The defendant pleaded guilty
to being a felon in possession of a gun and was sen-
tenced to 46 months in prison. The sentence was influ-
enced by the district judge’s determination that the de-
fendant had used the gun to commit another felony. A
person who, “while armed with a deadly weapon,”
“recklessly . . . performs . . . an act that creates a substan-
tial risk of bodily injury to another person” (“recklessly”
being defined as committing the act “in plain, conscious,
and unjustifiable disregard of harm that might result and
2                                                 No. 06-2431

the disregard involves a substantial deviation from accept-
able standards of conduct”) is guilty of a felony under
Indiana law. Ind. Code §§ 35-41-2-2(c), 35-42-2-2(b), (c).
  Except for being limited to cases in which the defendant
is armed and the risk created by his conduct is that of
physical injury, the Indiana statute tracks the normal
understanding of criminal recklessness: “consciously
disregard[ing] a substantial and unjustifiable risk that a
material element exists or will result from his conduct.”
American Law Institute, Model Penal Code § 2.02(2)(c)
(1962). There is no doubt that the defendant was armed
with a deadly weapon and had the mental element re-
quired by the statute—conscious disregard of the risk. See
Farmer v. Brennan, 511 U.S. 825, 836-37 (1994); United States
v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998);
United States v. Gonsalves, 435 F.3d 64, 70 (1st Cir. 2006). The
only question is whether his conduct created a substan-
tial risk of bodily injury. The judge’s finding that it did
is entitled to deference, United States v. Markovitch, 442
F.3d 1029, 1031 (7th Cir. 2006); United States v. Wyatt, 102
F.3d 241, 246 (7th Cir. 1996), as in other cases in which a
trial judge is asked to apply a legal standard (here that of
substantial risk) to basic facts, by which we mean facts
uninfluenced by legal concepts, such as the fact that the
defendant fired the gun. Whether the judge got the stan-
dard right—that is, correctly understood the meaning of
“substantial risk of bodily injury” in Indiana law—is a
separate question from whether she applied the correct
standard correctly. Review of the answer to the first
question is plenary and to the second deferential.
  At 3:00 a.m. one morning, the defendant and his girl-
friend left the Guvernment Bar and Lounge, a nightclub
in downtown Indianapolis. The club was on the verge of
No. 06-2431                                               3

closing for the night and other patrons were leaving,
though we do not know how many. The front entrance to
the club is on Market Street, and the couple left by that
entrance and walked to an “alley” behind the club, though
the satellite photograph appended to this opinion sug-
gests that it is actually a parking lot. While there, the
defendant fired six shots from a gun described in the
record only as an FN Herstal pistol that holds 20 rounds of
ammunition that can “penetrate up to 14 levels of body
armor.” The shell casings were found in the parking lot. No
one was injured. The club is only a couple of blocks from
Monument Circle, the Times Square of Indianapolis (but a
very tame and quiet Times Square), and is situated among
buildings. There is no indication of the bullets’ trajectory
or where they landed, though it seems undisputed that
the defendant fired the shots into the air. The club has a
rear entrance, but there is conflicting evidence on wheth-
er anyone was using it when or just before the defendant
was shooting, and the judge made no finding.
  The defendant argues that given the hour and the fact
that there were no people in the direct line of fire (though
his girlfriend, at least, was nearby, and there may have
been other people in the parking lot as well), his shooting
the pistol did not create a “substantial” risk of causing
bodily injury. The FN Herstal (presumably the reference is
to the FN Herstal Five-seveN Pistol, the only pistol Herstal
makes that holds 20 rounds) “fires the SS190 5.7x28mm ball
round. This projectile will perforate any individual pro-
tection on today’s battlefield including the PASGT kevlar
helmet, 48 layers of kevlar body armor and the CRISAT
target (titanium and kevlar).” “The Arms Site,” www.
remtek.com/arms/fn/57/index.htm, visited Jan.18, 2007.
Firing multiple shots from a powerful gun (as the FN
4                                                No. 06-2431

Herstal is conceded to be, though the details in the rec-
ord are sparser than those available on the Web) in the
downtown of a large city at a time when pedestrians (the
other patrons who were leaving the nightclub) are
known to be in the vicinity creates a risk of harm that,
while not large in probabilistic terms, is “substantial”
relative to the gratuitousness of the defendant’s actions.
See, e.g., Woods v. State, 768 N.E.2d 1024, 1028 (Ind. App.
2002) (defendant fired shots in residential area and there
were persons near the line of fire); Smith v. State, 688
N.E.2d 1289, 1291 (Ind. App. 1997) (defendant shot at old
car parked in his backyard near a crowd that was attend-
ing a festival and there were homes in the vicinity);
United States v. Cole, 298 F.3d 659, 662 (7th Cir. 2002)
(“discharging a firearm is an inherently risky act”); United
States v. Rutherford, 54 F.3d 370, 376 (7th Cir. 1995) (drunk
driving deemed reckless act because of the risk of physical
injury that it creates); Orban v. Vaughn, 123 F.3d 727, 733
(3d Cir. 1997) (“courts frequently have found that motor
vehicle drivers exhibited the required level of reckless-
ness while driving to justify a conviction for recklessly
endangering another person”); McNabb v. State, 887 So. 2d
929, 975 (Ala. Crim. App. 2001) (“the offense of reckless
endangerment embraces such conduct as . . . ’reckless
driving[,] . . . dangerous conduct with firearms[,]. . .throw-
ing objects at common carriers, dropping objects from
toll bridges, placing equipment within six feet of a high
voltage wire, shooting at an unoccupied building, shoot-
ing at an aircraft, placing an obstruction on railway
tracks, tampering with a railroad safety appliance, and
throwing substances likely to injure persons on public
highways’ ”), quoting the American Law Institute’s Model
Penal Code, supra, § 211.12.
No. 06-2431                                                5

   The point about the relativity of the concept of reckless-
ness deserves emphasis. An activity is not reckless just
because it is dangerous. Hunting quail is dangerous even
if it is done carefully. An activity is reckless when the
potential harm that it creates (the harm to reputation
caused by defamation, for example, where reckless disre-
gard called “malice” plays a critical role when the plaintiff
is a public figure), is wildly disproportionate to any
benefits that the activity might be expected to confer. Cf.
West by & through Norris v. Waymire, 114 F.3d 646, 651 (7th
Cir. 1997). The emotional gratification that defendant
Boyd derived from shooting into the night, though per-
haps great, is not the kind of benefit that has weight in the
scales when on the other side is danger to life and limb,
even if the danger is limited, as it was here. It was not,
however, trivial. Dangerousness is a function of the
magnitude of the harm that will occur if the danger
materializes and of the probability that it will materialize.
Although the probability that a shot fired in the air will
hit someone is small, it was increased sixfold by the
number of shots fired. Moreover, the angle of the shoot-
ing may not have been steep enough to assure that all
the shots would clear all the buildings within range, and
a high-velocity armor-piercing bullet would be more
likely to kill or seriously injure someone standing at a
window than a .22; it might even penetrate a wall.
  The defendant’s best case is Elliott v. State, 560 N.E.2d
1266 (Ind. App. 1990). The defendant fired five shots in
the direction of apparently empty fields and woodland.
The court held that his conduct had not created a sub-
stantial risk of bodily harm: “Since the evidence failed
to show any person put in harm’s way by Elliott’s con-
duct, there was no substance to the risk created by the
6                                                 No. 06-2431

firing of the pistol; the risk had no actual existence. Instead,
the presence of Elliott’s employees behind him and the
possibility of a concealed hunter in the woodlands pre-
sented only a remote risk of bodily injury.” Id. at 1287.
(Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. App. 1995),
was a similar case.) Read literally, the first sentence in
the passage that we quoted from Elliott would exonerate
our defendant, as there is no evidence that any person
was put in harm’s way by his shooting. But the meat of
the passage is in the second sentence; the possibility of a
“concealed hunter” was remote. In contrast, consider-
ing the power and range of the Herstal, the proximity of
buildings in some of which there may have been security
guards or cleaning staffs even at 3 a.m.—some of the
buildings may even have been apartment houses—and
considering too that patrons of the Guvernment Bar
and Lounge who were leaving the club were close to,
perhaps even in, the parking lot where the shooting took
place, we do not think the judge committed a clear error
or misinterpreted Indiana law in ruling that the defen-
dant’s reckless action created a substantial risk of bodily
harm.
  We are, however, distressed at the sloppiness with
which the case has been handled by both sides. Neither
party attempted to quantify the risk created by the defen-
dant’s conduct; and vague words such as “substantial” are
not a satisfactory substitute for data, as we remarked in
United States v. Chambers, No. 06-2405, 2007 WL 60874 (7th
Cir. Jan. 9, 2007). Our Rutherford opinion, quoted earlier,
examined statistics concerning the risks created by drunk
driving, and there are published statistics on accidents
from random shooting. See, e.g., Lawrence W. Sherman
et al., “Stray Bullets and ‘Mushrooms’: Random Shootings
No. 06-2431                                               7

of Bystanders in Four Cities, 1977-1988,” 5 J. Quantitative
Criminology 297 (1989).
  Less forgivably—for the enormous variety of the cir-
cumstances in which random shooting occurs may defeat
efforts to estimate the probability that a given incident
would result in injury—no satellite photo (available free
of charge from Google) was placed in evidence to in-
dicate the physical surroundings. Nor does the record
specify the model FN Herstal that the defendant was
using or the type of ammunition the gun contained. The
judge made no finding concerning the number of persons
on the streets near the shooting (another conflict in the
evidence that she did not try to resolve) or whether any
persons were in the alley when and where the shooting
took place. There was also no evidence on whether
there are apartment buildings as well as office buildings
in the vicinity of the shooting.
  Despite these gaps, we are reasonably confident that
the Indiana courts would hold that firing multiple shots
from a high-powered gun in downtown Indianapolis
for no better reason than an excess of animal spirits
creates a substantial risk of bodily injury within the mean-
ing of the Indiana statute.
                                                AFFIRMED.
8                                         No. 06-2431



    SATELLITE PHOTOGRAPH OF THE SCENE OF THE CRIME
No. 06-2431   9
10                                         No. 06-2431

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—1-30-07
