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SCOTUS declares federal penalty enhancer unconstitutionally vague

United States v. Davis, USSC No. 18-431, June 24, 2019, affirming and vacating in part, United states v. Davis, 903 F.3d 483 (5th Cir. 2018); Scotusblog page (includes links to briefs and commentary)

No surprise here.  Section 18 U.S.C. §924(c) makes it a crime to use a firearm during a crime of violence and 18 U.S.C. §924(c)(3)(B) defined a crime of violence as an offense that by its nature involves a substantial risk that physical force would be used in committing it. SCOTUS declared similar language unconstitutionally vague in  Sessions v. Dimaya, and it followed suit here.

Davis explained that these statutes require courts to use the “categorical approach” to interpret and apply them. In other words, they have to imagine the “generic version” of the defendant’s crime and decide whether it involves a substantial risk of force. That requires too much speculation by the fact finder. That’s why the statute violates the vagueness doctrine. The statute could have survived had it inquired into the defendant’s actual conduct. Opinion at 8-11.

Davis and Dimaya follow from SCOTUS’s decision to declared the federal Armed Career Criminal Act void for vagueness in Johnson v. United States. See our detailed post on Johnson here.

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