by Josh Taylor

Justice Neil Gorsuch joined his liberal colleagues to declare that “[i]n our constitutional order, a vague law is no law at all.”  United States v. Davis, 588 U.S. __ (2019).  That first line of Justice Gorsuch’s majority opinion refers specifically to the federal statute imposing long prison sentences for people using a firearm in connection with other federal crimes, 18 U.S.C. § 924(c).  Vague laws, Gorsuch continued in the introduction, “transgress . . . constitutional requirements” in that it “[t]hey hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.”  Id.

The vagueness described and invalidated by Gorsuch’s majority deals with exactly what crimes carry heavy prison penalties when committed with a gun.  “The statute’s residual clause points to those felonies ‘that by their nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’”  Id. (internal brackets omitted when quoting 18 U.S.C. § 924(c)(3)(B)).  But, in many contexts this definition provides no clear standard for what constitutes a “crime of violence.”

The Court’s decision this morning outlines a difference between the two statutory definitions of “crime of violence” contained in § 924(c)(3).  First, there is an elements clause stating that a crime of violence is a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  That clause, the majority pointed out, does not raise a constitutional issue of vagueness, as it relies on the elements outlined in the underlying charged felony, i.e., robbery, which builds an assault element into 18 U.S.C. § 2114.  It is the residual clause that poses constitutional issues of vagueness.  That clause allows crime of violence to be defined, exclusive of the elements clause, as a felony 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.”

The Court took on Davis to resolve a deep circuit split on the constitutionality of § 924(c)’s residual clause.  The Court compared the clause to two other vague clauses it has invalidated recently because of similarly open-ended language requiring prosecutor’s and judge’s to impose their own categorical case-by-case views.

The dissent framed an interesting tension between President Trump’s two Supreme Court appointees, with Justice Kavanaugh penning the dissenting opinion for himself, Alito, Roberts, and Thomas.  “Crime and firearms form a dangerous mix,” Kavanaugh begins the dissent.  He goes on to cite numerous statistical rises in aggravated assaults with firearms and the impetus for the law at issue.  Kavanaugh and the dissenting conservative wing of the Court note that, unlike the similar clauses Gorsuch uses to invalidate for vagueness, the law at issue is based entirely on present actions and not past convictions: “I fully understand how the Court has arrived at its conclusion given the Court’s recent precedents in Johnson v. United  States,  576  U.  S. __ (2015), and Sessions v. Dimaya, 584 U.S. __ (2018).  But this case presents an entirely different question.  Those cases involved statutes that imposed additional penalties based on prior convictions.  This case involves a statute that focuses on the defendant’s current conduct during the charged crime.  The statute here operates entirely in the present.”  To wrap it all up in a horrifying bow, Justice Kavanaugh’s dissent employed a parade of horribles “[t]o get a flavor of the offenders who will now potentially avoid conviction under § 924(c).”

You can read the entire majority opinion and dissent here:

You can listen to oral arguments from April 17, 2019, via here.

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