Violent force required for violent felony
Below, Natasha Fedder of the University of Pennsylvania Law School recaps the opinion handed down yesterday by the Court in Johnson v. United States. Natasha’s commentary on oral arguments in the case can be read here and here. 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. The Court held that Florida's felony battery statute, which requires the "actual and intentional touching" of another person, does not have the use of "physical force" as an element and thus does not constitute a "violent felony" for purposes of the federal Armed Career Criminal Act ("ACCA")
In an opinion by Justice Scalia, the Court began by rejecting Johnson's argument that the Court was bound by the holding of the Florida Supreme Court that unwanted touching does not constitute physical force. Rather, the Court held, the meaning of "physical force" in the provision of the ACCA at issue is a question of federal law. The Court did, however, find itself bound by the Florida Supreme Court's holding that the Florida felony battery statute's "actually and intentionally touching" requirement was satisfied by any intentional physical contact, "no matter how slight."
The Court next turned to both the ordinary meaning of "physical force" and the statutory context of the ACCA. Relying on dictionaries, the Court concluded that the term "force" contemplates strength or energy, violence, and pressure directed against a person "“ that is, a degree of power not satisfied by the merest touching. While acknowledging that "“ as the dissent contended "“ at common law "force" 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 ""force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.'" The Court deemed it clear that, in the context of a statutory definition of "violent felony," "physical force" means violent force. And although "misdemeanor" meant something close to "felony" at common law and gradually came to mean "minor offense," nothing in the text of the ACCA suggests that Congress meant to define "violent felony" with a term of art which defined a misdemeanor at common law.
In an opinion joined by Justice Thomas, Justice Alito dissented. In his view, because "physical force" can mean "the merest touching," Florida's felony battery statute falls within the scope of the ACCA. Justice Alito emphasized that Congress had explicitly limited the term "force" in other sections of the ACCA, such as Section 924(a)(2)(B)(ii) "“ in which it defined violent felony to include any conduct presenting "a serious potential risk of physical injury to another" "“ and Section 922(g)(8)(C)(ii) "“ in which Congress criminalized physical force "that would reasonably be expected to cause bodily injury." Had Congress intended to similarly limit "physical force" in this case, it could have done so. (The absence of such language, the Court's majority countered, does not suggest that without such qualification "physical force" would consist of the merest touch.)
Justice Alito also argued that the ACCA uses the phrase "violent felony" as a term of art which encompasses a wider meaning than would ordinarily be attributed to the phrase. For example, although offenses such as burglary and extortion can be committed without force, they nonetheless qualify as "violent felonies" 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 Court's decision. 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. § 1227(a)(2)(E), defines "domestic violence" to include the use or attempted use of "physical force." The majority downplayed Justice Alito's concerns as "exaggerat[ing] the practical effect of our decision," and it pointed to the government'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. 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 "common enough consequence" by "import[ing] a term of art [into the ACCA] that is a comical misfit with the defined term "violent felony.'"