Violent force required for violent felony
on Mar 3, 2010 at 5:18 pm
Below, Natasha Fedder of the University of Pennsylvania Law School recaps the opinion handed down yesterday by the Court in Johnson v. United States.Â Natasha’s commentary on oral arguments in the case can be read here and here.Â Check the Johnson v. United States (08-6925) SCOTUSwiki page for additional information. [Disclosure: Akin Gump filed an amicus brief on behalf of the petitioner, but Natasha was not involved in the case.]
On Tuesday, the Court issued its opinion in No. 08-6925, Johnson v. United States.Â The Court held that Floridaâ€™s felony battery statute, which requires the â€œactual and intentional touchingâ€ of another person, does not have the use of â€œphysical forceâ€ as an element and thus does not constitute a â€œviolent felonyâ€ for purposes of the federal Armed Career Criminal Act (â€œACCAâ€)
In an opinion by Justice Scalia, the Court began by rejecting Johnsonâ€™s argument that the Court was bound by the holding of the Florida Supreme Court that unwanted touching does not constitute physical force.Â Rather, the Court held, the meaning of â€œphysical forceâ€ in the provision of the ACCA at issue is a question of federal law.Â The Court did, however, find itself bound by the Florida Supreme Courtâ€™s holding that the Florida felony battery statuteâ€™s â€œactually and intentionally touchingâ€ requirement was satisfied by any intentional physical contact, â€œno matter how slight.â€
The Court next turned to both the ordinary meaning of â€œphysical forceâ€ and the statutory context of the ACCA.Â Relying on dictionaries, the Court concluded that the term â€œforceâ€ contemplates strength or energy, violence, and pressure directed against a person â€“ that is, a degree of power not satisfied by the merest touching.Â While acknowledging that â€“ as the dissent contended â€“ at common law â€œforceâ€ was a legal term of art satisfied by even the slightest touching, the Court reasoned that the meaning of a statute is ultimately determined by its context, as it declined to â€œâ€˜force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.â€™â€Â The Court deemed it clear that, in the context of a statutory definition of â€œviolent felony,â€ â€œphysical forceâ€ means violent force.Â And although â€œmisdemeanorâ€ meant something close to â€œfelonyâ€ at common law and gradually came to mean â€œminor offense,â€ nothing in the text of the ACCA suggests that Congress meant to define â€œviolent felonyâ€ with a term of art which defined a misdemeanor at common law.
In an opinion joined by Justice Thomas, Justice Alito dissented.Â In his view, because â€œphysical forceâ€ can mean â€œthe merest touching,â€ Floridaâ€™s felony battery statute falls within the scope of the ACCA.Â Â Justice Alito emphasized that Congress had explicitly limited the term â€œforceâ€ in other sections of the ACCA, such as Section 924(a)(2)(B)(ii) â€“ in which it defined violent felony to include any conduct presenting â€œa serious potential risk of physical injury to anotherâ€ â€“ and Section 922(g)(8)(C)(ii) â€“ in which Congress criminalized physical force â€œthat would reasonably be expected to cause bodily injury.â€Â Had Congress intended to similarly limit â€œphysical forceâ€ in this case, it could have done so.Â (The absence of such language, the Courtâ€™s majority countered, does not suggest that without such qualification â€œphysical forceâ€ would consist of the merest touch.)
Justice Alito also argued that the ACCA uses the phrase â€œviolent felonyâ€ as a term of art which encompasses a wider meaning than would ordinarily be attributed to the phrase.Â For example, although offenses such as burglary and extortion can be committed without force, they nonetheless qualify as â€œviolent feloniesâ€ under Section 924(a)(2)(B)(ii) of the ACCA because they often lead to violence.
The majority and the dissent disputed the implications of the Courtâ€™s decision.Â Justice Alito warned that the decision will remove statutes involving both the use of violent force and offensive touching from the scope of the ACCA; moreover, he cautioned, the decision renders the removal of aliens convicted of domestic violence more difficult insofar as the relevant statute, 8 U.S.C. Â§ 1227(a)(2)(E), defines â€œdomestic violenceâ€ to include the use or attempted use of â€œphysical force.â€Â The majority downplayed Justice Alitoâ€™s concerns as â€œexaggerat[ing] the practical effect of our decision,â€ and it pointed to the governmentâ€™s success in obtaining ACCA convictions under the modified categorical approach, which allows a court to determine the basis for conviction by consulting the trial record.Â Though absence or incompleteness of records may make a modified categorical approach less plausible in some cases, the majority explained, it does not follow that Congress meant to avoid that â€œcommon enough consequenceâ€ by â€œimport[ing] a term of art [into the ACCA] that is a comical misfit with the defined term â€˜violent felony.â€™â€