The U.S. Supreme Court held this week that the phrase “physical force” means “violent force” for purposes of a statute that uses the exact language as the statutory definition of “crime of violence.” Johnson v. United States, No. 08-6925, slip op. (March 2, 2010) (Scalia, Roberts, Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor). Scalia wrote for the majority; Alito dissented and was joined by Thomas.
This case involved a conviction for Florida’s felony offense of battery, Fla. Stat. § 784.03(1)(a), (2). The question before the Court was whether the battery conviction constitutes a “violent felony” for purposes of sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). A “violent felony” is defined, in relevant part, as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
This definition exactly matches the definition of “crime of violence,” 18 U.S.C. § 16(a), referenced by the crime of violence category of aggravated felony, INA § 101(a)(43)(F). As such, the Court’s interpretation of this phrase is significant to immigration attorneys. Indeed, the Court turned to its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), in which it addressed the definition of “crime of violence” for purposes of determining whether an LPR had been convicted of an aggravated felony. Johnson, No. 08-6925, slip op. at 5-6 (discussing Leocal, 543 U.S. at 11). In Leocal, the Court held, “The ordinary meaning of this term [crime of violence], combined with § 16’s emphasis on the use of physical force against another person…suggests a category of violent, active crimes….” Leocal, 543 U.S. at 11.
In Johnson, the Court adapted this interpretation of “physical force” to the definition of “violent felony.” Johnson, No. 08-6925, slip op. at 6. The Court clearly announced, “We think it clear that in the context of a 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.” Johnson, No. 08-6925, slip op. at 6.
The dissent criticized the majority’s holding because, in the view of Justices Alito and Thomas, it will undermine DHS’s ability to remove non-citizens convicted of assault or battery offenses in many states. Johnson, No. 08-6925, slip op. at 6-7 (Alito, J., dissenting). Alito cited to statutes in 28 states, including Arizona, California, Texas, Massachusetts, and Virginia, which he thinks are affected by the majority’s position. Johnson, No. 08-6925, slip op. at 7 n.3 (Alito, J., dissenting).
According to Alito, “Although the great majority of convictions under these statutes are, no doubt, based on the use of violent force, the effect of the Court’s decision will be to take all these convictions outside the scope of ACCA—unless the Government is able to produce documents that may properly be consulted under the modified categorical approach and that conclusively show that the offender’s conduct involved the use of violent force.” Johnson, No. 08-6925, slip op. at 7-8 (Alito, J., dissenting).
The majority responds that this is an “exaggerat[ion].” Johnson, No. 08-6925, slip op. at 10. Under the modified categorical approach allowed by Shepard v. United States, 544 U.S. 13, 26 (2005), and Taylor v. United States, 495 U.S. 575, 602 (1990), the majority points out, courts can and do “consult 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.” Johnson, No. 08-6925, slip op. at 10.
Because the Johnson Court defined the physical force needed for a “violent felony” by borrowing from Leocal’s definition of the physical force needed for a “crime of violence,” the greatest benefit that this case offers to immigration attorneys is likely its reiteration of that interpretation of physical force. The Court has signaled that the physical force required for violent offenses—whether termed “crime of violence” or “violent felony”—is indeed a “violent force,” rather than a mere touching.
Because the Florida battery offense allows for a conviction based on “any intentional physical contact, ‘no matter how slight,’” the Johnson Court held that this offense is not a violent felony. Johnson, No. 08-6925, slip op. at 11. Presumably, therefore, Florida battery also does not constitute a crime of violence.