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IS THE LAST JOHNSON DOMINO ABOUT TO FALL?
A few months ago, the 4th Circuit Simms decision described the residual clause in 18 USC § 924(c) as “the last Johnson domino to fall.” Last Wednesday, the Supreme Court heard argument on that domino in United States v. Davis.
The Supreme Court’s 2015 Johnson v. United States decision invalidated the Armed Career Criminal Act residual clause as unconstitutionally vague. The next domino after Johnson was 18 USC § 16(b), the criminal code’s general definition of “crime of violence,” which the court invalidated in Sessions v. Dimaya, and which had great significance for immigration.
Davis brings Johnson to § 924(c). Sec. 924(c)(3)(B) defines a crime of violence as “an offense that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Those are the same words Dimaya invalidated in § 16(b). Both provisions have been interpreted using the “categorical approach,” in which courts identify a crime’s “ordinary case” and then assess whether the ordinary case crime poses a substantial risk of force. In Johnson and Dimaya, the court concluded that the categorical approach made the provisions too vague.
In Davis, the government wants the Court to solve that problem by abandoning the categorical approach in favor of looking at the facts of the defendant’s particular case to determine whether the crime was violent. This, the government claims, would save 924(c)’s residual clause. Two circuits – the 1st and 11th – have already agreed.
The government, with its gift for understatement, argued in its brief, “As the facts of this case illustrate, defendants whose prosecution requires application of [this law] include some of the most violent criminals on the federal docket.”
At Wednesday’s argument, the justices pushed the government for a reason why they should abandon the categorical approach, wanting to know why 924(c) is better interpreted on the specific facts of a particular case instead of the “ordinary case.” Justice Neil Gorsuch asked the government how it could interpret the word “offense” in the introductory clause of 924(c)(3) to mean the ordinary case of an offense while interpreting the same word to mean “specific facts of a case” in § 924(c)(3)(B). Gorsuch called that “a problem,” telling the government attorney “I’m not tracking you at all.”
One observer suggested, “It seemed possible that Gorsuch would dictate the outcome of Wednesday’s case, with a series of questions suggesting skepticism, if not outright dismissiveness, of the government’s position.”
Chief Justice John Roberts said the government’s warnings that the “specific case” approach is needed to avoid visions of violent criminals running amok are self-defeating. Such predictions, he suggested, stack the deck against the government in future cases.
“The government in all of these cases keeps upping the ante, even though they continue to lose hands,” Roberts said. “I would have thought you’d be more interested in saying that there are plausible distinctions in these other cases so that you don’t automatically stack the odds against you when that next case comes up.”
A SCOTUSBlog analysis, reported that after the government argued, it seemed that up to five justices were already inclined to rule for Davis. His counsel did not appear to lose any votes during his argument, either, although Gorsuch at one point noted that the rule of constitutional avoidance (under which courts try to interpret statutes to avoid finding them unconstitutional) favors the government, while the rule of lenity (under which courts interpret ambiguity in criminal statutes in favor of the defendant) favors Davis. Gorsuch wondered how those two rules should be reconciled when they clash.
By the end of the argument, SCOTUSBlog recounted, “it was clear that at least three justices, and quite possibly five, are not inclined to abandon the categorical approach in order to save Section 924(c). The only question seems to be whether Breyer will join them, or whether Gorsuch will find a reason to apply the canon of constitutional avoidance (assuming the text is sufficiently ambiguous) instead of the rule of lenity.”
The case will be decided by the end of June.
United States v. Davis, Case No. 18-431 (Supreme Court)
SCOTUSBlog.com, Argument Analysis, “The Last Johnson Domino to Fall?” (Apr. 17, 2019)
Daily Caller, A law used to punish gun crimes is under attack at the Supreme Court (Apr. 17, 2019)
– Thomas L. Root