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Gorsuch Grills DOJ Lawyer on Violence, Vagueness (2)

April 17, 2019, 3:20 PMUpdated: April 17, 2019, 6:58 PM

Neil M. Gorsuch grilled the government’s lawyer April 17 in a gun case where the U.S. Supreme Court justice may hold the tie-breaking vote to strike down a law on vagueness grounds.

In an extended back and forth with assistant to the U.S. solicitor general Eric J. Feigin at oral argument, Gorsuch suggested the government’s reading of the law, which is used to severely punish gun crime, was inconsistent and untenable.

Feigin said striking down the law would hamper the government’s crime-fighting efforts.

The case stems from the prosecution of Maurice Davis and Andre Glover. They were caught in 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.

But they say one of the laws they were prosecuted under—for committing a “crime of violence"—is too vague.

The government says the law, 18 U.S.C. § 924(c)(3)(B), which helps 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. That subsection of the law punishes “an offense that is 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.”

The dispute calls on the justices to apply precedent from last term’s decision in Sessions v. Dimaya, where they split 5-4 in finding a similarly-worded immigration law too vague. Gorsuch joined the Democratic-appointees there to rule in favor of an immigrant the government wanted to deport.

The only change in court personnel since Dimaya is the switch of Justice Brett M. Kavanaugh for Anthony M. Kennedy, one of the dissenters in that case. Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor also joined Justice Elena Kagan’s opinion for the immigrant in Dimaya, while Justices Clarence Thomas, Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr. also dissented.

The argument here leaves open the possibility of another 5-4 margin emerging, though Breyer suggested another means of interpretation that could put him in his own camp.

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.

Whether the law here meets a similar fate we should know when the court issues its decision by late June.

Gorsuch Language Lesson

Courts have evaluated that crime of violence language by taking a “categorical approach,” asking what type of conduct occurs in an “ordinary case” involving the law at issue. That led to striking down that language for being too vague in Johnson and Dimaya.

In an attempt to avoid the fate of the laws in those cases, the government now advocates a fact-specific approach which would ask whether a defendant’s conduct falls within the language of § 924(c)(3)(B). That’s different from the approach the government has advocated previously.

But at any rate, that reading is inconsistent with another part of the statute, Gorsuch said during the argument.

The prefatory clause to what type of conduct constitutes a crime of violence says “an offense,” and it refers to two types of offenses, one in subsection (A)—which “has as an element the use, attempted use, or threatened use of physical force against the person or property of another"—and another in subsection (B), the law at issue in this case.

For subsection (A), Gorsuch said he understood the government’s position to be, “We will continue to read ‘offense’ to mean the offense charged on the books and look at the elements.”

“But, with respect to (B), you’d like us to look at the facts and treat the word ‘offense’ there to mean what did the defendant actually do,” Gorsuch said to Feigin.

“We don’t normally read prefatory language to mean two different things in two clauses that follow,” Gorsuch went on, noting that the government’s linguistic position contradicts one that the government took in another case.

After a series of volleys between him and Feigin, the justice was apparently unsatisfied with Feigin’s attempts to mollify Gorsuch’s concerns.

“Off you go. Go ahead,” Gorsuch said, signaling that the lawyer should try his luck with another part of his argument.

Perhaps sensing that he needed win Gorsuch’s vote to win the case, Feigin tried to return to Gorsuch’s concern when next answering additional critical questions from Kagan, the author of Dimaya.

“Yeah, you’re not answering Justice Gorsuch’s question anymore, Mr. Feigin,” Kagan quipped.

Kavanaugh Goes the Other Way

Some questions from President Donald Trump’s second high court appointee, Kavanaugh, signaled that he might be a vote for the government here.

“Vagueness is born in a conception of fair notice,” Kavanaugh said to the lawyer for the other side, Brandon E. Beck.

“Congress in 1986 was concerned about the enormous problem of gun violence, violent crimes committed with guns, which was, bad as it is now, extremely bad, worse, much worse, in the 1980s,” Kavanaugh said, referring to the time when Congress enacted the law at issue here.

“And every -- put everyone on notice, on notice, fair notice: If you commit a crime with a gun, you’re going away for a long time. That was Congress’s obvious intent, overwhelming intent, because of the problem,” he said. “And the idea that -- I mean, I guess I’m not seeing the notice problem, given that that has been crystal-clear since 1986 for everyone in this country.”

Breyer Goes His Own Way

“I have a different question which perhaps is puzzling only me,” Breyer said to Beck, assistant federal public defender from Lubbock, Texas.

“Both you and the government assume that without this case-specific interpretation, the statute would be unconstitutional. Why?” the justices asked.

Breyer said this case is different from Johnson, which implicated whether scores of state crimes of varying definitions could be considered crimes of violence such that they could qualify to enhance federal sentences.

“But it’s sure not tough to do here,” Breyer said. “This is a federal crime-based statute. The government has all the pre-sentence reports it wants, and it could go through and categorize which are violent and which crimes are not. And if that’s so -- I don’t see why it couldn’t. If that’s so, this would not be a difficult statute to interpret. It would not be very ambiguous. And, therefore, you win, but you lose because, in fact, it isn’t unconstitutional,” he said to Beck and to laughter in the courtroom.

“Well, to address your proposed solution, Your Honor, at that point, we’d be delegating to United States probation the authority to define this. Well, we’re looking -- who -- who writes the pre-sentence reports? U.S. probation,” Beck said.

“And then we run into the same problem in Johnson and Dimaya,” Beck went on. “What statistics do we use? What other sources do we use? And this Court has never been able to answer that question.”

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

(Adds more detail from argument, transcript link. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at