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Gorsuch, with Liberals, Strikes Down ‘Critical’ Crime Law (2)

June 24, 2019, 2:10 PMUpdated: June 24, 2019, 7:33 PM

A federal law targeting violent gun crime that the Justice Department says is “of critical importance” was struck down as too vague in a 5-4 opinion by Justice Neil Gorsuch.

Gorsuch once again held the government’s feet to the fire, joined by the four Democratic-appointees. He also paired with his liberal colleagues in a decision last year involving a similar vague law, which drew the ire of President Donald Trump in a tweet.

“In our constitutional order, a vague law is no law at all,” Gorsuch began the June 24 opinion.

It drew a dissent from Trump’s second high court appointee, Justice Brett Kavanaugh, who said defendants may now be able to get convictions “tossed and lop off years—potentially decades—from their total prison time.”

They’ll certainly try, as the decision will cause “a tidal wave of habeas petitions and appeals” for defendants who’ve been prosecuted under the violent crime law, said Dorsey & Whitney LLP partner John Marti.

By striking it down, the Supreme Court eliminated a “powerful tool for federal prosecutors in combating violent crime,” Marti, a former federal prosecutor, said. He said it’s one that federal prosecutors routinely charge, “to enhance penalties and to leverage defendants into pleading guilty and cooperating against other defendants.”

But though the defense bar welcomes the decision, its impact might be limited.

“There just aren’t that many types of offenses that depend solely on the clause that the court struck down,” said Amy Baron-Evans of National Federal Defender Sentencing Resource Counsel, which filed an amicus brief to the justices supporting the defendants.

The decision is the latest in a string of Supreme Court cases striking down laws for being too vague, going back to Gorsuch’s predecessor Justice Antonin Scalia’s 2015 decision in Johnson v. United States, which struck similar language in another law on those grounds.

This case stemmed 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.

Their sentences were increased by the law, 18 U.S.C. § 924(c)(3)(B), which punishes “crimes of violence,” defined as 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.”

Citing the high court’s 2018 ruling in Sessions v. Dimaya—the vagueness case from last term where Gorsuch joined the liberal bloc—the U.S. Court of Appeals for the Fifth Circuit said the law is too vague in a ruling that the justices upheld today.

“Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague,” Gorsuch wrote, declining the government’s invitation to save the law by way of an alternate reading.

Were the high court to adopt that reading, he wrote, “we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.”

Kavanaugh’s lengthy dissent, which began with the observation that “crime and firearms form a dangerous mix,” said the majority should have worked to save the law rather than strike it down.

DOJ didn’t respond to a request for comment on the decision.

The case is United States v. Davis, U.S., 18-431, affirmed in part, vacated in part, and remanded 6/24/19.

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