United States v. Davis: Supreme Court again finds “crime of violence” definition unconstitutionally vague

The federal gun law that enhances sentences for possessing or using a firearm in furtherance of a “crime of violence” is unconstitutionally vague, the U.S. Supreme Court held June 24 in United States v. Davis.
 
18 U.S.C. §924(c)’s residual clause mandates a higher sentence for using or possessing a firearm in furtherance of a “crime of violence,” defined as a crime “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 Court, in a 5-4 opinion by Justice Gorsuch, held that the statute failed to provide fair warning of what conduct was prohibited, and violated separation of powers by giving police, prosecutors and judges power to determine what the vague law meant.
 
The Court began by noting that it had previously struck down as vague two similar provisions in Johnson v. United States (2015) and Sessions v. Dimaya (2018).
 
 “But the government thinks it has now found a way around the problem,” the Court said, by abandoning its longstanding position that §924(c) requires court use a “categorical approach” that looks at a statute’s elements to “a new ‘case specific method’ that would look to the defendant’s actual conduct in the predicate offense.”
 
But while “it might have been a good idea for Congress to have written a residual clause for §924(c) using a case-specific approach,” the statute’s “text, context, and history” show that Congress did not write the statute that way, the Court said.  “The statutory text commands the categorical approach.”
 
And that leaves the statute too vague.
 
 “When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again,” the Court said.
 
Dissenting opinion
 
Justice Kavanaugh, joined by Justices Thomas, Alito and Chief Justice Roberts, dissented.
 
 “A decision to strike down a 33-year-old, often prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event,” they said.
 
They said the case was distinguishable from Johnson and Dimaya because those cases involved enhanced penalties based on prior convictions, but §924(c) focuses on a defendant’s current conduct during the charged crime.
 
They said “thousands” of prisoners sentenced under §924(c) may now be released earlier.