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The United States Law Week

Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute

April 16, 2019, 8:56 AM

The government wants violent criminals off the street. Defendants want laws that make clear what’s illegal.

Arguments at the U.S. Supreme Court in a consequential criminal case on Wednesday could give clues about which side will win the dispute implicating those arguably competing ends.

It could turn on a contentious 5-4 decision from last term in which Justice Neil M. Gorsuch cast the tie-breaking vote for an immigrant the government wanted to deport.

Gorsuch could again be the deciding vote here, but it’s unclear which way he and a majority of the court will go. A decision is expected by late June.

The issue in the case of Maurice Davis and Andre Glover, convicted in a string of armed robberies, is whether the definition of “crime of violence” in a federal law used to prosecute gun crimes is unconstitutionally vague.

The Justice Department says the law, 18 U.S.C. § 924(c)(3)(B), which helps the government secure stiff sentences for gun offenders, is “of critical importance to the prosecution of violent crime,” warning of dangerous consequences if the high court lets stand a federal appeals court ruling that struck the law down on vagueness grounds.

Approving that ruling from the U.S. Court of Appeals for the Fifth Circuit “would forestall current and future prosecutions of clearly dangerous criminals under Section 924(c)(3) and allow already-incarcerated ones back on the streets,” the government claims.

Defendants like Davis and Glover dispute that doomsday scenario. And they say the law’s broad scope offends vaunted due process protections enshrined in the Fifth Amendment, and therefore cannot stand, no matter the consequences.

In seeking to resolve the technical question of great importance to the criminal justice system, the high court will look to last term’s decision in Sessions v. Dimaya, where it split 5-4 in finding a similarly-worded immigration law too vague.

Dimaya followed the court’s 2015 decision in Johnson v. United States, an opinion authored by the late Justice Antonin Scalia, which struck down another part of a criminal law with similar “crime of violence” language.

“The test here is whether the Court will accept an obvious consequence of its decision” in Johnson, said Amir Ali, Supreme Court and Appellate Counsel at the MacArthur Justice Center in Washington. He argued for the defendant in Welch v. United States, which involved retroactive application of Johnson.

But although the same five justices from the Dimaya majority are still on the court and the statutory language is nearly identical in this case, it’s unclear how the court will rule, said UC Irvine School of Law professor Leah Litman, an expert on this line of cases.

That’s partly owing to Gorsuch. He wrote a separate concurrence in Dimaya, expressing some views that were different from those in Justice Elena Kagan’s opinion for the four Democratic-appointees, which Gorsuch joined as to its result and some of its reasoning.

Litman noted that the government offers a different approach to resolving this case, one that, as Gorsuch observed in his Dimaya concurrence, the government didn’t offer there.

That provides a different path for the court this time—one that, given the consequences the government warns of, perhaps a majority will want to take.

Robberies, Different Approaches

Davis and Glover were prosecuted for a string of gunpoint store robberies in and around Dallas in 2014, culminating in a high speed chase that started in a McDonald’s drive-through and ended with their gold SUV crashing into a concrete ditch.

They were convicted of multiple robbery-related counts and sentenced to decades in prison each—over 50 years for Davis; over 40 years for Glover—due in large part to 924(c).

Arguing against the appeals court’s decision to strike down §924(c)(3)(B), the government says the justices should just focus on whether the facts of a given case satisfies the law’s language that the defendants challenge as vague. That subsection punishes a felony “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.”

Focusing on what actually happened in a case might seem like common sense to some, but it runs contrary to the approach that courts—and the government itself—have previously taken in these types of cases. Instead of focusing on the facts of a particular case, courts have used a “categorical approach,” asking what type of conduct occurs in an “ordinary case” involving the law at issue.

Applying that approach, which the Supreme Court applied in Johnson and then in Dimaya, the Fifth Circuit said the law in this case is too vague.

But the court should take a circumstance-specific approach here, the government says, maintaining that the defendants would lose under such an approach.

Their conspiracy “involved the planning and execution of a string of violent armed robberies” in which they “ambushed store clerks, held them at gunpoint, and threatened to injure them if they did not comply with” their demands for cigarettes and cash, the government says. Under a fact-specific approach, “a jury would unquestionably have found that” their conduct satisfied the law’s requirements, it says.

Supported by an array of defense and sentencing groups, Davis and Glover say the government’s fears of blood in the streets are overblown, because defendants can be prosecuted under another part of 924(c).

More than that, the defendants say, the legal issue is much simpler than the government makes it out to be. They say it’s a matter of courts needing to apply the categorical approach in this context, which leads to the same vague situation that a majority of the court found in Johnson and then in Dimaya.

After the Supreme Court’s decision striking down as vague similar language in those cases, the defendants say, “it is time for the other shoe to drop.”

The case is United States v. Davis, U.S., 18-431, to be argued 4/17/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com