United States v. Davis (U.S. Supreme Court, June 2019)

Firearm Offenses/924(c) Crimes – The residual clause of 18 U.S.C. § 924(c) defining a “crime of violence” is unconstitutionally vague.

Resolving a circuit split, the Supreme Court struck down the residual clause of 18 U.S.C. § 924(c), which criminalizes carrying a firearm in connection with a “crime of violence” or drug trafficking crime, as unconstitutionally vague. Similar to the clauses struck down in Johnson v. United States and Sessions v. Dimaya, the residual clause of § 924(c) defined a crime of violence as any felony “that by its nature, involves a substantial risk” that physical force will be used.

The Court employed the same reasoning from Johnson and Sessions, which held that the residual clause failed to provide fair notice to defendants by requiring judges to engage in speculative abstraction to define “crimes of violence.”

The Court further held that § 924(c) requires courts to apply the “categorical approach” in determining whether a crime is a “crime of violence” under the residual clause, rejecting the Eleventh Circuit’s “conduct-based approach” in Ovalles v. United States and sealing the residual clause’s fate as unconstitutionally vague. The Court held that the text, context, and history of § 924(c) demanded that the categorical approach be used, as did the statutes at issue in Johnson and Dimaya. While acknowledging that using the conduct-based approach from Ovalles would avoid the vagueness concerns attendant in the categorical approach, the Court noted that it has never employed the canon of constitutional avoidance to expand the reach of a criminal statute and that doing so would be in conflict with the doctrine of vagueness and the rule of lenity.

Justice Kavanaugh dissented, warning that “crime and firearms form a dangerous mix,” advocating for the conduct-based approach, and expressing skepticism at the decision “to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague.” The majority countered that it is the dissent, not the majority, suddenly giving the residual clause a new meaning, as the government conceded that the clause is unconstitutional “if it means what everyone has understood it to mean in nearly all of those prosecutions over all of those years.”

On certiorari from the Fifth Circuit

Opinion by Gorsuch, joined by Ginsburg, Breyer, Sotomayor, and Kagan

Dissenting Opinion by Kavanaugh, joined by Thomas, Alito, and Roberts in part

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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