Johnson v. United States: What Constitutes “Physical Force”? (Argument Recap)
Below, Natasha Fedder recaps Tuesday’s oral argument in Johnson v. United States. Natasha is a third-year law student at the University of Pennsylvania and a former Akin Gump summer associate. Check the Johnson v. United States (08-6925) for additional updates.
At oral argument on Tuesday, the Court grappled with the meaning of "physical force" under the ACCA. Arguing for petitioner Curtis Johnson, Assistant Federal Public Defender Lisa Call emphasized that a conviction for battery involving only "the slightest contact" does not constitute sufficient "physical force" to satisfy the ACCA elements of a violent felony. Ms. Call assured the Court that sentencing courts would be able to draw a qualitative line to establish the amount of force necessary to fall within the ACCA, suggesting that such physical force would be a violent, aggressive type likely to cause injury. However, the Justices expressed concern that such an interpretation would exclude crimes committed without using force from the purview of the statute even though Congress had surely intended some of these crimes "“ such as kidnapping and domestic violence "“ to be covered by the ACCA.
Arguing on behalf of the United States, Assistant to the Solicitor General Leondra Kruger contended that the ACCA contemplates the full range of common law batteries and that the criminal law commonly uses the term "physical force" to mean the use of force in only the slightest degree. To hold otherwise would compel federal courts to perform a difficult line drawing to determine how much force was enough to satisfy the amount required for "physical force." Justice Scalia pointed out, however, that states frequently engage in precisely this kind of line drawing "“ for example, by recognizing different degrees of battery. Moreover, the Justices appeared reluctant to accept a definition of force that would embrace merely the slightest touching. Justice Ginsburg quipped, "And [when] Congress was trying to get at the worst of the worst in the ACCA . . . they meant to [go] after people who go around poking other people in a rude manner?"
In her rebuttal, Lisa Call noted that pinpointing the meaning of "physical force" determined the length of the mandatory minimum sentence under the ACCA. An over-broad definition of "physical force," then, would take discretion away from the sentencing judge by including crimes which the Act was not designed to punish.