A Criminal Enterprise

Court-Watching: Johnson v. United States

Posted in Cases, News by Bidish J. Sarma on October 8, 2009

I had the opportunity to sit in on the second oral argument that the Supreme Court heard this Tuesday: Johnson v. United States.  For this post, I’ve relied on my own notes from the argument as well as the transcript posted on the Supreme Court’s website.

The federal Armed Career Criminal Act (ACCA) provides that a person who violates section 922(g) of the Act who “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another . . . shall be . . . imprisoned not less than fifteen years . . . .”  The State introduced three prior convictions against Curtis Johnson to enhance his sentence to the 15-year minimum under ACCA.  Johnson challenged the State’s use of a third-degree felony simple battery as a partial basis for his sentence enhancement.  Under Florida law, a simple battery can include “any intentional touching, no matter how slight . . . .”  State v. Hearns, 961 So. 2d 211, 218-19 (Fla. 2007).  The question presented to the Supreme Court is whether Johnson’s simply battery conviction qualifies as a “violent felony” under ACCA.

The oral argument was primarily shaped by the questions posed by Justices Breyer and Scalia.  Justice Breyer appeared to think that ACCA was designed to include the Florida simply battery as a “violent felony.”  Scalia, on the other hand, was extremely skeptical that the statute would qualify the slightest conduct as a violent crime.

Ms. Lisa Call appeared on behalf of Mr. Johnson.  She summarized her client’s legal position succinctly:

Mr. Johnson’s conviction for battery in the State of Florida can be sustained by the slightest contact. Such a conviction does not qualify as a violent felony under the Armed Career Criminal Act. A violent felony means one that has as an element the use, attempted use, or threatened use of physical force against the person of another. Physical contact is not the same as physical force.

Though Ms. Call agreed with Justice Scalia’s suggestion that the total number of cases that actually entailed the consideration of mere touching as a violent felony is irrelevant, Breyer pushed back:

JUSTICE BREYER: I would say that’s certainly wrong under our cases. I mean, I would have thought that the reason that burglary, for example, is a violent crime is not because in every instance there is a risk of physical harm, because in the mine run of instances there is a risk of physical harm, and I thought we said that in at least three cases.

Breyer’s underlying concern was that the Petitioner was asking the Court to interpret Congress’s words differently in the first subsection of the Act than it does in the second subsection.  Ms. Call explained why Mr. Johnson’s interpretation is viable:

MS. CALL: Your Honor, the reason why is that Congress was directing in the first prong those crimes that were directed against persons and would be defined by their elements. In the second prong Congress did list out four enumerated offenses that they thought were committed, A, by career criminals, and, B, that created that substantial risk. In the first part it does not talk about risk to others. It’s that offender’s conduct and an elements-based test.

Breyer was not convinced:

So if we interpret 1 a different way, we are going to take outside the statute the very things that Congress wanted inside; and, if we interpret it the same way, I think we would get to the right result.

When Justices expressed the concern that exempting the Florida simple battery statute from ACCA’s reach would “dramatically” reduce the number of cases that ACCA applies to, Ms. Call insisted that States had other avenues to trigger the ACCA sentencing enhancement.  Scalia supported this view:

JUSTICE SCALIA: You — you would have to have other States which only have a battery statute that is defined as broadly as this misdemeanor battery statute in Florida.  If they have a higher degree of battery, just as Florida does, which is a felony, then, if the –if the prosecutor wants this fellow to be convicted of a violent crime, he — he could charge him with that –with that higher degree.

Ms. Leondra Kruger appeared on behalf of the United States.  She summarized the Government’s position succinctly as well:

The primary definition of violent felony in the Armed Career Criminal Act, as, Justice Alito, you have noted and, Mr. Chief Justice, as you have noted, almost precisely tracks the general definition of the crime of battery; that is, the unlawful application of physical force to the person of another.

Justice Scalia became quite animated when he questioned Ms. Kruger:

JUSTICE SCALIA: You — you — you would have us believe that by “violent felony” in this — in this statute, Congress meant the threat — the threat? It doesn’t even have to be the act. You know, if you don’t shut up, I am going to come over and thwonk you on your shoulder with my index finger. I’m going to (snap). This is a violent felony under this statute which gets him how many more years? . . .  Fifteen years for (snap).

Ms. Kruger progressed continued to answer questions posed by Justices Scalia and Ginsburg when Justice Sotomayor posed an incisive question that clarified the Government’s ultimate position:

JUSTICE SOTOMAYOR: Counsel, you see that you don’t have the inquiry. The issue is not whether it causes serious injury or not, the issue is whether the nature of the force used is physical force.

Ms. Kruger responded:

Our submission is that every battery under Florida law, under common law and under the laws of 27 states and the Federal Government does have an — as an element the use of physical force. . . . The fact of the matter is, it is actually a very common usage in the criminal law. There are a number of judicial opinions, for example, that we instead of using the formulation that we see in Florida’s battery statute, instead use the formulation use of force of the slightest degree.

I think, in the end, Justice Scalia summarized the most critical question that the Justices must answer when they decide the case:

JUSTICE SCALIA: You know, I guess it comes down to whether we think that in — in B1, Congress was using technical language or Congress was using simply ordinary language, because you are quite right that the definition of — of battery covers even the slightest touching. The use of physical force, which would include the slightest touching.

He then made his own views on the matter clear:

But in using that definition to define the term “violent felony,” I find it hard to believe that Congress was using the term in a technical sense, and was not using the term “physical force,” “the use of physical force” to mean something more than a mere touching.

After argument, there is no doubt that Scalia leans towards Johnson’s position and Breyer leans towards the Government’s position.  The other Justices did not clearly stake out their territory, and it will be interesting to see how they (especially Sotomayor) will come out on this matter of statutory interpretation.

Professor Doug Berman at the Sentencing Law and Policy Blog notes that one of the interesting dynamics in this case is that the Justice Scalia sides with the criminal defendant.  Berman notes that this happens more often that people realize, and that our “knee-jerk” assumptions about the Justices do not always hold true.  That post can be found here.  The SCOTUSblog argument recap is here.

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