Tuesday, March 30, 2010

Supreme Court Holds that Florida Battery Conviction Was Not “Violent Felony”

In a case with implications for aliens facing domestic violence deportation charges or with aggravated-felony crime of violence convictions, the U.S. Supreme Court in Johnson v. U.S., 2010 WL 693687, held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use ... of physical force against the person of another” and thus does not constitute a “violent felony” under 18 USCA § 924(e).

JOHNSON v. UNITED STATES ( No. 08-6925 )
528 F. 3d 1318, reversed and remanded.

Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony, in violation of 18 U. S. C.§922(g)(1). The Government sought an enhanced penalty under §924(e), which provides that a person who violates §922(g) and who “has three previous convictions” for “a violent felony” “committed on occasions different from one another” shall be imprisoned for a minimum of 15 years and a maximum of life. A “violent felony” is defined as “any crime by imprisonment for a term exceeding one year” 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.” §924(e)(2)(B).

Johnson’s indictment specified five prior felony convictions. The Government contended that three of those convictions—for aggravated battery and for burglary of a dwelling in October 1986, and for battery in May 2003—rendered Johnson eligible for sentencing under §924(e)(1). At the sentencing hearing, Johnson did not dispute that the two 1986 convictions were for “violent felon[ies],” but he objected to counting his 2003 battery conviction. That conviction was for simple battery murder Florida law, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before, §784.03(2).

Under §784.03(1)(a), a battery occurs when a person either “1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to
another person.” Because the elements of the offense are disjunctive,the prosecution can prove a battery in one of three ways. State v. Hearns , 961 So. 2d 211, 218 (Fla. 2007). It can prove that the
defendant “[i]ntentionally caus[ed] bodily harm,” that he “intentionally str[uck]” the victim, or that he merely “[a]ctually and intentionally touche[d]” the victim.

Since nothing in the record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts, see Shepard v. United States , 544 U.S. 13, 26 (2005) (plurality opinion), his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another person constitutes the use of “physical force” within the meaning of m§924(e)(2)(B)(i). The District Court concluded that it does, and accordingly sentenced Johnson under §924(e)(1) to a prison term of 15 years and 5 months.

The Eleventh Circuit affirmed. 528 F. 3d 1318 (2008).

In a 7-2 decision authored by Justice Antonin Scalia and joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, the Court first rejected the petitioner's argument that, in deciding whether any unwanted physical touching constitutes “physical force”m under 18 USCA § 924(e)(2)(B)(i), it was bound by the decision of the Florida Supreme Court in State v. Hearns, 961 So. 2d 211 (Fla. 2007), am case involving a Florida statute similar to the ACCA that held that, since § 784.03(1)(a) requires proof of only the slightest unwanted physical touch, “the use ... of physical force” was not an element of the offense. Rather, the Court said, the meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law, and in answering that question the Court is not bound by a state court's interpretation of a similar or even identical state statute. However, in determining whether a felony conviction for battery under Fla. Stat. Ann. § 784.03(2) meets the definition of “violent felony” in 18 USCA §     924(e)(2)(B)(i), the Court said, it was bound by the Florida Supreme Court's interpretation of state law, including its determination of the elements of Fla. Stat. Ann. § 784.03(2).

Because § 924(e)(2)(B)(i) does not define “physical force,” the Court, in accord with its past precedent decisions, gave it its ordinary meaning. In this regard, the Court referred to Black's Law Dictionary,
which defines “force” as “[p]ower, violence, or pressure directed against a person or thing” and defines “physical force” as “[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim,” and found that these definitions suggested a degree of power that would not be satisfied by the merest touching. The Court rejected the government's contention that “force” as used in § 924(e)(2)(B)(i) has the more specialized legal meaning that the common law gave it when it defined the crime of battery as consisting of the intentional application of unlawful force against the person of another and defined “force” as meaning even the slightest offensive touching. In reaching this conclusion, the Court relied upon its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), where it interpreted the statutory definition of “crime of violence” in 18 USCA § 16, a provision very similar to § 924(e)(2)(B)(i) in that it includes any felony offense which“has as an element the use ... of physical force against the person or property of another,” § 16(a). The Court there stated:

In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes.... 543 U.S. at 11, 125 S.Ct. 377.

The Court found it “clear that in the context of statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force--that is, force capable of causing physical pain or
injury to another person.” (Emphasis by the Court.)

The Court also found it significant that the meaning of “physical force” that the government sought to import into the meaning of “violent felony” is a meaning derived from a common-law misdemeanor and concluded that it is unlikely that Congress would select as a term of art defining “violent felony” a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.

The majority found no merit to the dissent's contention that the term “force” in § 924(e)(2)(B)(i) cannot be read to require violent force because Congress specifically named “burglary” and “extortion” as “violent felon[ies]” in § 924(e)(2)(B)(ii), notwithstanding that those offenses can be committed without violence, noting that burglary and extortion are listed in § 924(e)(2)(B)(ii) as examples of felonies that “presen[t] a serious potential risk of physical injury to another,” not in § 924(e)(2)(B)(i) as felonies that have “as an element the use, attempted use, or threatened use of physical force.” Similarily, the court found no merit to the government's contention that, because Congress used the phrase “bodily injury” in connection with the phrase m“physical force” in § 922(f)(8)(C)((ii) (a provision forbidding the possession of firearms by a person subject to a court order explicitly
prohibiting the “use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury”), the absence of such language in §
924(e)(2)(B)(i) proves that the merest touch suffices. Rather, the Court found that specifying that “physical force” must rise to the level of bodily injury does not suggest that without the qualification “physical force” would consist of the merest touch. The Court also pointed out mthat this is not a case where Congress “include[d] particular language min one section of a statute but omit[ted] it in another section of the same Act” as § 922(g)(8)(C)(ii) was enacted in 1994--eight years after
enactment of the language in § 924(e)(2)(B)(i).

The Court also dismissed the government's contention that interpreting § 924(e)(2)(B)(i) to require violent force will undermine its ability to enforce the firearm disability in § 922(g)(9) for persons who previously have been convicted of a “misdemeanor crime of domestic violence,” which is defined to include certain misdemeanor offenses that have “as an element, the use or attempted use of physical force ... ,” §921(a)(33)(A)(ii), stating that it was interpreting the phrase “physical force” only in the context of a statutory definition of “violent felony” and was not deciding that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue was not
before the Court, and the Court explicitly did not decide it.

Similarly the Court dismissed both (1) the government's concern that the Court's interpretation would make it more difficult to remove, pursuant to INA § 237(a)(2)(E) [8 USCA § 1227(a)(2)(E)], an alien convicted of a “crime of domestic violence,” which is defined to mean “any crime of violence (as defined in [18 USCA § 16])” committed by certain persons, including spouses, former spouses, and parents, where the alien is convicted of a battery under a statute, like Florida's, that does not require the use of violent physical force, and (2) the dissent's concern that, in states that have generic felony-battery statutes that cover both violent force and unwanted physical force, the Court's interpretation will render convictions under those statutes outside the scope of the ACCA. The majority found these arguments to exaggerate the effect of its decision since, when the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the Court's modified categorical approach, Nijhawan v. Holder, 129 S. Ct. 2294 (2009),  permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record--including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. In this regard, the Court pointed out, the government has in the past obtained convictions under the ACCA in precisely this manner.

Finally, the Court declined to remand to the Eleventh Circuit for it to consider whether the petitioner's 2003 battery conviction is a “violent felony” within the meaning of the so-called “residual clause” in 18 USCA § 924(e)(2)(B)(ii). The Court found that (1) the government did not keep this option alive because it disclaimed at sentencing any reliance upon the residual clause, and (2) the parties briefed this issue to the Eleventh Circuit, which nonetheless reasoned that, if the petitioner's conviction under Fla. Stat. Ann. § 784.03(2) satisfied § 924(e)(2)(B)(i), then it was a predicate “violent felony” under § 924(e)(1), but “if not, then not.”

Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, dissented, arguing that the ACCA defines a “violent felony” to mean, among other things, “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another” and the classic definition of the crime of battery is the “intentional application of unlawful force against the person of another,” so that the crime of battery, as traditionally defined, falls squarely within the plain language of the ACCA. Justice Alito opined that the ACCA was meant to incorporate this traditional definition and that therefore the decision of the court of appeals should have been affirmed.

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