“Crime of Violence” Definition is Unconstitutionally Vague

In the recent decision of United States v. Davis, the Supreme Court held a criminal statute unconstitutionally vague. In particular, the Court found that the federal definition of a “crime of violence” contained in 18 U.S.C. § 924(c), which that imposes substantial prison time for defendants who commit a crime with a firearm, is too vague to be enforced.

The Court’s decision was easy to predict. That is because the “crime of violence” definition at issue in Davis is strikingly similar to the language found to be unconstitutionally vague in two previous Court decisions.  Thus, legal commentators assumed that the “crime of violence” definition in Davis would also be found to be unconstitutional.

The Davis case creates a bigger hurdle for the federal government to charge defendants with the law that imposes enhanced penalties for offenses committed while carrying a firearm under 18 U.S.C. § 924(c).  In this case summary, we will discuss the facts of the Davis case, the Court’s decision, and Justice Kavanaugh’s dissenting opinion.

The Facts – Davis and Glover Receive Significant Prison Time Under 18 U.S.C. § 924(c)

Maurice Davis and Andre Glover committed a string of gas station robberies in Texas.  They were charged with federal robbery offenses.  Most importantly, they were also charged with commission of a crime while possessing a firearm, the § 924(c) charge.  Following a jury trial, Davis received a prison sentence of more than 50 years, and Glover received more than 41 years.  The length of those sentences was due to the enhanced penalties under § 924(c).

On appeal, they argued that the definition of “crime of violence” in § 924(c) is unconstitutionally vague.  Though first rejecting the argument, the Fifth Circuit Court of Appeals agreed with Davis and Glover following the Supreme Court’s decision last term in Sessions v. Dimaya(discussed further below).  The federal government appealed, and the Supreme Court agreed to hear the case.

The “Crime of Violence” Definition

Under § 924(c)(3), a “Crime of Violence” is defined as one of two things.

Under § 924(c)(3)(A), a “Crime of Violence” is defined as:

A Felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,

This portion of the law was not affected by Davis.

Under § 924(c)(3)(B), a “crime of violence” is defined as

Any other offense that is a felony and 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.

That language – especially the phrase “by its nature” – is significant in this case.  That is because it calls upon judges to determine whether a certain crime typically, or “by its nature,” involves violence.  That means that the judge cannot look at the actual facts of the crime to see whether it involved violence.  Rather, the judge has to speculate as to whether the crime is generally violent by its nature.

Accordingly, the issue in the Davis case is whether asking a judge to speculate as to what crime is violent in the “ordinary” case is too vague a standard to be enforced.  The Court found that it was too vague to pass constitutional muster.  

The Court’s Majority Opinion – Following Past Court Decisions

Justice Gorsuch wrote the majority opinion and essentially held that the issue in the case has been decided by previous Court decisions.  In fact, the definition of “crime of violence,” quoted above, is virtually identical to the “crime of violence” definitions in two other federal statutes.  And those two other statutes were found to be unconstitutionally vague in Johnson v. United States, and Sessions v. Dimaya (in which Justice Gorsuch also wrote the majority opinion).

Therefore, it would be inconsistent to find that the “crime of violence” definition in the Davis case was constitutional when two previous Court decisions found that the same language was unconstitutionally vague.

After finding the “crime of violence” definition unconstitutionally vague, Justice Gorsuch explained why the government’s arguments and the arguments in Justice Kavanaugh’s dissenting opinion were not persuasive.

First, Justice Gorsuch noted that the “crime of violence” definition cannot be saved by finding that it allows judges to look at the actualfacts of a particular case. That is not possible, according to the majority, because the language of the definition itself – especially the phrase “by its nature” – requires a court to look at the “nature” of a crime, not the actual facts in a particular case.

Also, Justice Gorsuch noted that historically § 924(c) has been read not to have judges look at the actual facts in a given case.  To do so now, in order to save the statute, would be the Court making law rather than interpreting it.

As for what should happen next for Davis and Glover, the Court determined that the lower courts need to make further decisions in light of the Court’s constitutional holding to resolve their cases.  They may get a new trial, or some other resolution.

Justice Kavanaugh’s Dissent – Trying to Show Differences from Johnson and Dimaya

Justice Kavanaugh’s dissent was joined by Justices Thomas, Alito, and Chief Justice Roberts (in part).  It focuses on the fact that 18 U.S.C. § 924(c) had been enforced for 33 years, and that a “sudden” decision that finds the law unconstitutionally vague would put many prosecutions into question.  He also added that the majority decision will make it harder to prosecute violent gun crimes in the future.

Aware that the Johnson and Dimaya decisions provided the motivation for the majority opinion’s analysis, Justice Kavanaugh tried to distinguish those cases from the Davis case.  He argued that the two earlier cases dealt with enhanced sentences based on prior convictions.  Davis, by contrast, “operates entirely in the present,” and that a “risk-based criminal statute” is both common and constitutional.

Conclusion

The Davis case, while focusing on a technical definition of “crime of violence” has important implications for federal prosecutions moving forward. Because the definition has been found too vague to be enforced, federal prosecutors will have a higher burden to bring prosecutions under 18 U.S.C. § 924(c).  Therefore, the enhanced penalties that flow from that law will be harder to prove for federal defendants.