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March 12, 2018

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

March 12, 2018 at 10:28 PM | Permalink


According to Antifa, Charles Murray talking about average IQ differences between races is violence and can be met with violence ("punch a nazi"). So giving a lecture like Murray can be violence and therefore a violent felony. If giving a talk can be a violent felony, surely a rape or robbery---or distributing a film about Hillary during an election---can be a violent felony.

Posted by: Citizens Fragmented but Whole | Mar 13, 2018 3:08:26 AM

Used to be if you were at a party , went oarking with a hot girly prospect and it got cold and you started the vehicle or had the keys in the ignition, it was an OWI. OWI'S were considered a violent crime by the residual lause. It got over turned by ussc, lCked mens rea. Think back on this vague wording and it seems ridiculous.

Posted by: MidWestGuy | Mar 13, 2018 9:16:58 AM

Did I enter a twilight zone or were there previous comments here that were deleted or changed or something....

Posted by: Daniel | Mar 13, 2018 5:19:32 PM

Daniel, in an (likely unsuccessful) effort to kept David Behar from ranting excessively, I have started deleting comments of his that I feel add nothing new of any value to the discussion. I believe I only delete, maybe, one out of every 20 of his comments. But because he comments so much, that rate still means a few comments every few weeks.

Posted by: Doug B. | Mar 13, 2018 6:32:23 PM

Doug. Delete this.

Prof. Berman is a denier of the facts about the lawyer profession.

He indoctrinates his intelligent, modern students into supernatural doctrines that are from the 13th Century, and that are nuts. He does not discuss the other side. He intimidates them with ejection from the criminal cult enterprise that he works for. They have no choice but to submit to these cult beliefs, if they wish to make a living in this field.

As a result of such atavistic, false doctrines, the lawyer profession is in failure in every single of its self professed goals, in every subject.

Posted by: David Behar | Mar 14, 2018 12:08:02 PM

A recording of the Eleventh Circuit debate has been found. Got to 0:30 seconds for the real substance. Let's spend a $million to answer this important question at the Supreme Court.


Posted by: David Behar | Mar 14, 2018 12:49:11 PM

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