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Argument preview: Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?

The federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), is a severe repeat-offender statute. It provides that a federal firearms offender who has three prior convictions from “any court” for “a violent felony” must be sentenced to a mandatory minimum fifteen-year imprisonment term. Subsection (2)(B) of the statute then defines “violent felony” as one that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last “otherwise” category has become known as “the residual clause.”  In four prior decisions over the past seven years, the Court has struggled to determine what offenses, not obviously violent in themselves, Congress meant to include, or not include, within it.

So far we know that “vehicle flight from law enforcement” (Sykes v. United States) and “attempted burglary” (James v. United States) do count, while “driving under the influence” (Begay v. United States) and “failure to report for incarceration” (Chambers v. United States) do not. But these decisions have stated differing rationales for how to apply the residual clause; and various Justices have dissented or concurred in each case, disagreeing with the majority’s interpretive rationales (yes, there have been more than one) as well as the results of their application.

In the most recent ACCA decision, three years ago in Sykes, Justice Antonin Scalia strongly stated his view in dissent (which he had first suggested in James), that because “the clause is too vague to yield ‘an intelligible principle,’” the residual clause of the ACCA should be declared unconstitutionally vague. The Court, said Justice Scalia, had been unable to offer a consistent clarifying rationale, despite four attempts. Meanwhile, lower federal courts continue to “split” over whether the same type of state criminal offenses should, or should not, count as a “prior” for the ACCA’s three-prior-violent-felonies penalty. Because the statute offers no clear definition and the Court was unable to agree on one, Justice Scalia opined that innumerable state offenses would continue to be presented to the Court for resolution: “[T]he residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.” Justice Clarence Thomas, while concurring with the majority’s result in Sykes, agreed that the Court’s rationale “further muddie[d]” understanding of the ACCA. And Justice Elena Kagan (joined by Justice Ruth Bader Ginsburg), while disagreeing with Justice Thomas’s and the majority’s result in Sykes, expressly agreed with Justice Scalia’s “cows come home” critique.

By my count, that is four votes. Lower courts have continued to split over whether various state felony offenses “count” for the ACCA’s residual clause, and the Court has stayed away from the issue for three full Terms. But on Wednesday morning, the Court will again confront the Sphinx-like (Justice Scalia prefers “Delphic”) residual clause, in Johnson v. United States, this time over whether “possession of a short-barreled shotgun” – often colloquially called a “sawed-off” shotgun — constitutes “conduct that presents a serious potential risk of physical injury to another.” Either the answer is self-evident – potential risk of injury seems likely, although the circuits have split (the exact numerical split always depends on how one counts) – or, as has been the case on other constitutional issues during his twenty-nine years on the Court, Justice Scalia has finally persuaded a majority of his colleagues to throw in the towel and declare the residual clause unconstitutionally vague.

Thus the most interesting aspect of Wednesday’s argument will be to see which tack the Justices take: focus on the specific question presented, or inquire about the larger constitutional question. Interestingly, no party or amicus in this case has argued the constitutional issue, despite Justice Scalia’s repeated suggestions and the apparent sympathetic views of some of his colleagues. The petition that the Court granted states only the narrow “possession of a short-barreled shotgun” question, although the constitutional vagueness question seems plainly subsumed within it if the Court wants to take it up.

This case: Are sawed-off shotguns inherently risky?

Samuel Johnson is not an attractive figure. Founder of a group called the Aryan Liberation Movement and having a number of prior convictions, Johnson discussed with an undercover FBI agent plans for various violent attacks on persons and institutions. When arrested, he possessed various firearms (including an AK-47 machine gun), in violation of the federal felon-in-possession law. He ultimately pled guilty, while reserving the right to contest applicability of the ACCA. At sentencing, the district judge found that Johnson’s prior state conviction for possession of a short-barreled shotgun counted, and that because he had two other qualifying prior convictions, the Section 924(e) mandatory minimum fifteen-year sentence was required. The judge noted, however, that were it not for the mandatory ACCA, he would have imposed only half to two-thirds of that sentence. On appeal, the Eighth Circuit affirmed, based on its precedent finding that possession of a sawed-off shotgun qualifies under the residual clause. Other circuits have ruled oppositely, and the Court granted certiorari on that narrow question.

Unsurprisingly, Johnson argues that “mere possession” is not violent and carries no risk of injury by itself. In this regard, he argues that possession of a short-barreled shotgun is unlike any of the enumerated offenses in Section 924(e) that require “active conduct;” and that his offense is more like those in the Court’s prior ACCA decisions concluding that certain offenses do not count, rather than those finding that they do. And indeed, a number of federal appellate and district judges have agreed (including a 1992 decision from then-First Circuit Judge Stephen Breyer, although that case addressed firearms possession generally, not sawed-off shotguns in particular). Interestingly, an amicus brief from the Gun Owners Association points out that possession of short-barreled shotguns is lawful in many states, and it argues that such guns are particularly useful for lawful, non-criminal, self-defense in the home. (Note however that this point still suggests there is “risk of injury to another”; Section 924(e) does not say “unlawful.”)

In response, the government offers its own relatively predictable counter-arguments. First, a number of circuits have ruled the way the Eighth Circuit did here. More importantly, the government argues that, whatever may be true of possession offenses in general, people who specifically possess sawed-off shotguns, unlawfully, present a high risk of violence and injury. The government’s brief marshals an impressive compilation of statutes, legislative history, appellate cases, and tragic media accounts to support this claim. Analogously, in Sykes the majority wrote that “serious and substantial risks are an inherent part of vehicle flight.” It seems that a similar “inherent risk of injury” argument, about short-barreled shotguns in particular, is the Solicitor General’s basic position.

In its prior ACCA decisions, the Court has additionally looked to various statistical sources to evaluate whether an offense is seriously risky, not conclusively but to “confirm common sense conclusions” (Sykes). In that regard, an amicus brief filed by three law professors suggests that the Court consider statistics gathered by the FBI’s National Incident-Based Reporting System (NIBRS), which for the first time links the multiple crimes listed in police reports, on a national basis. (Disclosure: Professor Evan Lee, primary author of this amicus brief and its underlying research, is my colleague at UC Hastings.) These statistics show that weapons offenses in general are more often linked with reports of physical injury than are the other offenses enumerated in Section 924(e) (burglary, arson and extortion), thus supporting, say these amici, the Solicitor General’s position. If the Court decides simply to answer the narrow question presented, this statistical source is a new and useful addition to evaluating the statutory issue.

But as with virtually all statistical studies, there is room for argument about the NIBRS figures. They do not separate out possession offenses, let alone possession of sawed-off shotguns, but rather lump together all weapons offenses, including more active, violent weapons crimes. One might wonder whether simple possession crimes are actually charged only when a more serious, injuring, offense has not been committed.

NIBRS appears to be a better statistical source for residual clause cases than others previously used; but Justice Scalia, at least, is quite critical of all such sources, especially when “not mak[ing] an appearance … until the … merits brief to this Court.” Again quoting his Sykes critique: “[O]ur statistical analysis in ACCA cases is untested judicial factfinding masquerading as statutory interpretation.” Because the average citizen seeking fair notice is almost certainly unaware of statistical studies (let alone the Court’s post-hoc interpretation of them), says Justice Scalia, “far from eliminating the vagueness of the residual clause, it increases the vagueness.” Thus in Sykes, Justice Kagan’s opinion also questioned the majority’s statistical evidence and conclusions; and Justice Anthony Kennedy’s majority opinion noted that statistics cannot be “dispositive.”


The Court will face two very different paths on Wednesday: either answer the simple question presented – does the “ordinary case” of unlawful short-barreled shotgun possession represent “conduct that presents a serious potential risk of physical injury”? – or decide whether the conflicts that Section 924(e) repeatedly generates (in lower federal courts and among the Justices) demonstrate that its residual clause exceeds the boundaries for generalized legislative guidance that the Court’s vagueness precedents allow. In Sykes, Justice Kennedy’s majority opinion noted that a number of other federal criminal statutes contain general language that is “difficult for courts to implement” but nevertheless has been upheld as providing sufficient guidance to “allow a person to conform his or her conduct to the law.” He and a majority of the Court then proceeded simply to decide whether a particular offense fit within the residual clause’s purpose and intent.

Perhaps the Justices will decide to do this again — particularly because the parties have not argued the constitutional point and because the history of legislation and cases addressing short-barreled shotguns makes this particular case look easy. (Although in which direction it is “easy” will likely split the Justices – surely some will be attracted to the argument that “mere possession” by itself is never dangerous.) But then again, perhaps not. Johnson may in fact be one of the rare cases where oral argument may really make a difference. Stay tuned.



Recommended Citation: Rory Little, Argument preview: Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?, SCOTUSblog (Nov. 4, 2014, 10:50 AM),