Argument Preview : Johnson v. U.S.
Below, Natasha Fedder previews Johnson v. U. S., one of the three cases to be heard by the Supreme Court on Tuesday, October 6. Natasha is a rising third year at University of Pennsylvania Law School and a summer associate at Akin Gump. Check the Johnson v. U. S. SCOTUSwiki page throughout the summer for additional updates and newly filed briefs.
18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act ("ACCA") subjects an individual with three prior convictions for a "violent felony" to a fifteen-year mandatory minimum sentence. On October 6, 2009, in No. 08-6925, Johnson v. United States, the Court will consider whether, for purposes of the ACCA, a prior state conviction for battery is in all cases a "violent felony," even when the state's highest court has held that the offense does not have as an element the use or threatened use of physical force.’ Background
In 2007, petitioner Charles Darnell Johnson pleaded guilty to and was convicted of possession of ammunition by a convicted felon. Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2002 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.
On appeal, Mr. Johnson argued that federal courts applying the ACCA are bound by the Florida Supreme Court's recent decision in State v. Hearns (2007), holding that physical force or violence is not a necessary element of simple battery. Thus, the crime of battery does not fit the ACCA's definition of "violent" crime as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another." The Eleventh Circuit rejected this argument and affirmed Mr. Johnson's conviction, applying federal law to find that the elements of his crime satisfied the definition of "violent" crime under the ACCA. Mr. Johnson filed a petition for certiorari, which was granted on February 23, 2009.
Petition for Certiorari
In his petition, Mr. Johnson argues that the Eleventh Circuit's decision conflicts with the well-established principle that state legislatures and state courts, rather than federal judges, define the elements of a state criminal offense. Thus, he continues, the Court should hold that Hearns is binding on federal courts determining whether simple battery conviction in Florida qualifies as a "violent felony" under the ACCA. Certiorari is also warranted, Mr. Johnson contends, to resolve circuit splits over the meaning of "physical force" for purposes of the ACCA, and over whether Florida battery contains the element of "physical force." Applying the ACCA, some circuits require "physical force" to be violent in nature, while others hold that even de minimus touching rises to the level of physical force. Construing Florida battery, some circuits find that the offense contains the element of "physical force," while others do not.
Opposing certiorari, the government emphasizes that the Eleventh Circuit's position is correct: the question whether Florida felony battery involves "physical force" and is therefore a "violent felony" under the ACCA is a federal question, rendering the Florida Supreme Court's decision in Hearns inapplicable to Mr. Johnson's case. The government challenges Mr. Johnson's contention that there is a circuit split over the definition of "physical force"; it argues that the cases on which he relies do not define "violent felony" for purposes of either the Florida general battery statute or the ACCA. In any event, the split over whether Florida battery contains the element of "physical force" to which Mr. Johnson points arises out of mere dicta.
In his brief on the merits, Mr. Johnson frames the issue as whether battery by touching is a violent felony under the ACCA. He begins by drawing on Supreme Court precedent to argue that physical force must be defined in terms of its ordinary and natural meaning. The Supreme Court has consistently used the terms "violent," "aggressive," and "purposeful" when analyzing the element of physical force. Violence and aggression are in concert with the ordinary and natural meaning of "physical force," whereas mere touching is not. Such a definition is also supported by dictionary definitions "“ both legal and non-legal "“ of all three terms, which show that the words "force," "violent" and "violence" have similar definitions and are often used to define each other. "Touch," on the other hand, has a different meaning which encompasses neither force nor violence. Several courts of appeals have thus held that physical force requires violent, aggressive conduct likely to create a serious potential risk of physical injury. In particular, Judge Easterbrook of the Seventh Circuit has emphasized that courts must treat the word "force" as having a meaning in the legal community that is distinct from its meaning in the physics community. "Force" in the physics sense means any acceleration of mass, whereas force in the legal sense means something more.
The way to differentiate between the physics meaning and the legal meaning is to insist that "force" in a legal sense be violent in nature. By contrast, the definition advocated by the government and the Eleventh Circuit fails to take into account the history of the ACCA, which is rife with testimony indicating that Congress's intent in passing the ACCA was to target the very worst offenders, and not those who commit garden-variety battery by touching. Finally, if doubt remains as to the meaning of physical force, the rule of lenity requires the ACCA to be construed in favor of the defendant and in keeping with the ordinary and natural meaning of the statutory language. Under such a construction, the "physical force" required for a "violent felony" means more than mere touching.
In Hearns, the Florida Supreme Court adopted precisely the meaning of "physical force" that Mr. Johnson now advocates; in his view, that decision binds federal courts applying the ACCA. But even if the Court should conclude that Hearns is not determinative of the issue, Mr. Johnson urges the Court to look to Hearns as highly persuasive authority when defining "physical force."
The government in its merits brief argues that Florida's definition of battery tracks the common law approach by finding battery where a person applies force to another person which results in physical injury or offensive touching, as opposed to the modern approach that limits battery to instances of physical injury. Because it proscribes the application of physical force to another person, Florida battery is an offense that has as an element the use of physical force. Moreover, courts of appeal acknowledge that even the slightest touch involves physical force. Though petitioner points to some extraordinary and hypothetical cases to show that courts have construed battery over-broadly, battery as ordinarily interpreted is a categorically violent crime. In passing the ACCA, Congress intended to reach not only crimes that present a risk of injury, but crimes likely to lead to confrontations that present a risk of injury. Given its legislative history and its plain meaning, the ACCA provision at issue plainly contemplates Florida felony battery. There is thus no grievous ambiguity in the statutory language that justifies resorting to the rule of lenity.
Distinguishing Hearns from the instant action, the government maintains that the Hearns Court interpreted a state battery statute not at issue in Mr. Johnson's case and materially different from the relevant ACCA provision. Hearns is therefore neither binding nor persuasive authority.