SCOTUS: Extra Penalties for Having a Gun While Committing ‘Crimes of Violence” is Unconstitutionally Vague

scotus Associate Justice Neil Gorsuch

Associate Justice Neil Gorsuch (AP Photo/J. Scott Applewhite)

Here’s a group of Justices you don’t see voting together often: Breyer, Ginsburg, Kagan, Sotomayor, and…Gorsuch. Together they made up the majority on a ruling that invalidates a part of the Gun Control Act that adds extra penalties to sentences for “crimes of violence” committed while in possession of a gun.

From The Hill:

Under the law, the men could have faced a mandatory minimum sentence of five years, with it rising to seven years if the gun is brandished and to 10 if it’s fired. Other minimum sentences can also be imposed based on the type of firearm used during the alleged offense.

The majority ruled that the law is unconstitutionally vague.

“In our constitutional order, a vague law is no law at all,” Gorsuch wrote. “Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that given ordinary people fair warning about what the law demands of them.”

“Vague laws transgress both of those constitutional requirements,” he added.

Gorsuch wrote that the law in question “provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutional.” And he said that if the justices were to side with the government in the case, “we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.”

The case, United States v. Davis, involved two men who were convicted of several counts of robbery. They were also charged under a separate federal statute which “authorizes increased penalties for using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.”

A dissent on the part of the other four conservative justices was written by Justice Kavanaugh.

In the dissenting opinion, Kavanaugh wrote that striking down the rule “is a serious mistake.” He cited statistics on gun violence, tying gun laws like the one challenged before the court as having “contributed to the decline of violent crime in America.”

“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 in this court,” he wrote.

And he warned that the impact of the ruling could be “severe,” arguing that it could lead to the early release of those convicted under the law and “thwart Congress’ law enforcement policies, destabilize the criminal justice system, and undermine safety in American communities.”

Kavanaugh also pointed to other laws throughout the country that similarly do not specifically define a kind of crime, but allow courts to gauge an alleged offense on a case-by-case basis.

 

comments

  1. avatar jwm says:

    It does not matter what tool was used. A crime of violence is just that. A crime of violence. adding a penalty for one specific weapon seems a bit moronic.

    Keep loading the courts Trump. I will do my best to give you another term to continue.

    1. avatar Geoff “Guns. Lots of guns.” PR says:

      “adding a penalty for one specific weapon seems a bit moronic.”

      It’s far worse than that, it’s flat Statist. I’m all for taking a tool out of their toolbox they can use against the citizens.

      Perhaps the TTAG Legal Eagles can comment on this, but have the rulings so far by the two newest Justices been kind of all over the map?

      I’m not seeing a lot of consistency in their rulings so far. It’s giving me queasy feelings with the ‘NY Pistol’ decision coming up.

      I damn sure hope we don’t get kicked in the teeth on that one…

      1. avatar jwm says:

        I will continue to support Trump until that decision is handed down.

        Then I will re evaluate.

        1. avatar barnbwt says:

          Even though Trump has nothing to do with their decisions on that case? Hardly seems fair…then again, you are still supporting him even after he has personally done substantial harm to American gun rights, so…at least you’re consistent.

        2. avatar jwm says:

          Seems we’re both consistent. Your plan was to see hillary in office and then work with the left to do in the NRA.

          I’m at least a free agent in my opinions and actions.

      2. avatar Perry says:

        I am also FOR removing ill-defined laws. It’s statist, allowing The King’s Officers to heap more punishment on the less-favored (deplorable) classes.

    2. avatar jwtaylor says:

      Trump’s picks went two different ways on this one. Kavanagh’s justifications are pretty worrying.

      1. avatar Specialist38 says:

        Agreed. I like Gorsuch logic better. Seems to be more consistent.

        I will wait to more from Kavanaugh as it is obvious he thinks for himself. Good or bad.

        1. avatar barnbwt says:

          Or Kennedy…

        2. avatar Victoria Illinois says:

          I think Kavanaugh is still recovering from the whipping he got from congress. He doesn’t want to make the left attack him again. I get it. The left attacks verbally and physically. The right writes strong letters and carries signs.

        3. avatar Gov. William J Le Petomane says:

          Except it was Gorsuch that sided with the left on this one and Kavanaugh that sided with the right.

      2. avatar Green Mtn. Boy says:

        C J Roberts and Kavanagh are the weak link in a supposed conservative court.

      3. avatar Gov. William J Le Petomane says:

        I think the right went the ‘tough on crime’ way and the left went the ‘soft on criminals’ way, but in this case the way to be tough on crime is to impose stiffer penalties for violent crime, not overly vague statutes.

        Personally I like the brand of conservatives that seeks to be tough on crime by dramatically raising the odds that the violent criminal will be shot down by law abiding citizens defending themselves.

      4. avatar jobo says:

        Not just on this one either. Based on a few of his other decisions I’m beginning to suspect he’s actually a trojan horse.

    3. avatar Geoff “Guns. Lots of guns.” PR says:

      JWM –

      This one’s for *you* :

      https://twitter.com/RitaPanahi/status/1142949518754713600/photo/1

      1. avatar jwm says:

        That’s the image I get when I’m thinking of ‘vlad the imposter’.

    4. avatar Donttreadonme says:

      Agreed, unfortunately we have to be a little concerned about Kavanaugh.

      We can only hope that Ginsburg can’t keep holding on, and same with Breyer for that matter. We need originalists in the court.

  2. avatar Biatec says:

    Kavanaugh is an anti constitution big government type. I still don’t know why people think he is a win. Armed robbery should be way harsher of a sentence than it is. How ever.

    You should not make stupid vague laws that don’t make sense to keep someone off the streets.

    Background checks are not constitutional.

    NFa is unconstiutional.

    The only purpose of the ATF is to enforce laws that make criminals of people in which there is no victim.

    Yes Alcohol licenses and tobacco licenses are stupid. Same with age restrictions. It’s not the tax payers job to make sure your kids don’t drink or smoke.

    Kavanaugh supports all of this type of stuff. I’m still waiting to see more from Gorsuch. Kavanaugh we knew this about from the beginning. He is a bad pick.

    1. avatar Rick the Bear says:

      Biatec: “Armed robbery should be way harsher of a sentence than it is.”

      I possibly agree (depending on the difference). IIRC, in MA the potential penalty for a nighttime burglary is double that for a daytime burglary.

      Does (should) it matter what sort of weapon was used in the robbery? Should it matter whether or not said firearm was fired?

      1. avatar Biatec says:

        I don’t think it should matter. Even if they used a fake gun. You are forcing people under the threat of death to do what you say.

        I may be on the extreme side. How ever non violent crime I don’t think should ever end in prison(I think it just makes even worse criminals). Maybe some rare cases where it should. Like treason. How ever in general it should be just harsh fines and similar types of penalties.

        I think violence though is as bad as it gets. Even just punching someone from the wrong angle can kill a person.

        How ever criminals are let off so easy here. Illinois.

        If we went back to pre NFA gun laws. So basically no gun laws. I probably would not care as much. I could carry everywhere. I could protect myself from said violent people and it would all be fair at least.

      2. avatar Victoria Illinois says:

        Are you more dead if the guy used a gun rather than a machete? Same goes for “hate crimes”. If you’re gay and get beat-up, are you more injured than a straight person who gets beat-up? The law should look at the injury, not the feelings behind the crime. (My feelings are hurt when someone yells at me. That should be a crime. I want them arrested.)

        1. avatar Biatec says:

          Totally agree. Hate crimes a step away from hate speech laws.

        2. avatar Manse Jolly says:

          Agree.

        3. avatar Porridgeweasel says:

          That hate crime concept always seemed a slide down a slippery slope to me as well.

          +1

    2. avatar Tiger says:

      Please state the court ruling making a background check or the NFA Unconstitutional?

      1. avatar Biatec says:

        I don’t understand what you are asking. The courts rule against the constitution all the time. That doesn’t make it right.

        If the government passed hate speech laws like the UK and fined people and arrested them for jokes would you ask “where is the ruling that says hate speech laws are unconstitutional?”

        Maybe I misunderstood your point.

        1. avatar Sam I Am says:

          “Maybe I misunderstood your point.”

          Seems the point is that until a court rules on constitutionality, laws are constitutional. Thus, with no court ruling of unconstitutionality, one cannot say a law is unconstitutional.

        2. avatar Biatec says:

          Ahh okay so semantics. He’s not really adding anything.

  3. avatar Duane says:

    So called Hate crime laws should fall next.

  4. avatar Hannibal says:

    Meanwhile a single mother walking home from a night shift in Baltimore still can’t legally carry a gun to protect herself from the rampant street crime in many places because the court is more interested in lessening penalties on criminals than it is addressing the “bear arms” part of the Constitution.

    Great priorities there, SCOTUS.

    1. avatar John in Ohio says:

      One priority serves government while the other serves liberty. Of course, which one tyrants gonna choose!

    2. avatar Victoria Illinois says:

      Hannibal, I think about that often. The celebrities and politicians have body guards. The poor girl walking home from the bus stop is in greater danger. She should be the one to carry (without going thru all the hoops and $$) Hypocrisy… They’re all guilty of it.

  5. avatar Docduracoat says:

    I would like to see “hate crimes” struck down.
    Why is it worse to assault a gay or black person than to assault me?
    Why should there be specially protected classes of people?
    We are all supposed to be equal under the law

    1. avatar Geoff “Guns. Lots of guns.” PR says:

      “I would like to see “hate crimes” struck down.”

      Preach it. Crime is crime, prosecute it as such.

      But will the high Court agree?

  6. avatar Alexander B. says:

    If vague laws are no laws at all, how does California get away with it? Ha-ha.. California, you sly dog.

    1. avatar I Haz A Question says:

      It’s called the “spaghetti” strategy. Throw as many laws as you can against the wall to see which ones will stick. Many of them will be blatantly unlawful, but judges can only rule on the cases that are brought before them by a valid plaintiff. Tie up your opposition in court to battle one unconstitutional law, while you and your cronies pass several more. Backlog and overwhelm your opponents so much that they’ll make little progress during your term in office. Then, if a major setback is ever encountered and a law is struck down (enjoined), your successor will be dealing with the political fallout because he/she will be the one in the spotlight, while you enjoy your Golden Parachute retirement on the peoples’ dime.

      It sux, but it works, and that’s what we fight against here in CA.

  7. avatar TommyG says:

    “In our constitutional order, a vague law is no law at all,” Gorsuch wrote. Well I guess the NY SAFE ACT should be declared unconstitutional then.

    1. avatar Nanashi says:

      The NFA literally has a whole agency division dedicated to determining what is and isn’t compliant. Strike it down!

      1. avatar barnbwt says:

        heh-heh –sick burn! That logic extends doubly to EPA…basically, any law that requires a powerful administrative agency to implement it.

  8. avatar Nanashi says:

    “In the dissenting opinion, Kavanaugh wrote that striking down the rule “is a serious mistake.” He cited statistics on gun violence, tying gun laws like the one challenged before the court as having “contributed to the decline of violent crime in America.””

    Remember how in his confirmation hearing Kavanaugh said if he liked the effect a ruling had was more important than the Constitution (And Cruz let that go without comment)? Looks like I wasn’t crazy for saying that was a bad sign.

  9. avatar Chris Mallory says:

    They need to remove the “firearm enhancements” for drug crimes as well. All too often you see a pot bust where the sentences are enhanced because the victim of state violence had a hunting gun in a back closet or under a bed. Unless the weapon is actually used in a crime it should not matter. And no, drug crimes do not count as actual crimes.

    1. avatar Tiger says:

      Who says drug crimes are not crimes?

  10. avatar John says:

    So Kavanaugh decided against the ruling because ‘muh politics?’ Nice, another win for Trump.

  11. avatar joefoam says:

    If you were to link the crime with the weapon, IMHO using a knife is much more violent. You have to be up close and personal with your victim rather than standing back and pulling a trigger.

    1. avatar Victoria Illinois says:

      Oooo yes, a knife is much more personal. You see what you’re doing. You see the blood and the person’s face….not so much with a bullet. The soldiers in WWI must have had awful nightmares. Throwing a bomb is impersonal and you don’t see the people damage. (Not to dismiss the Viet Nam vets pain.)

      1. avatar jwtaylor says:

        What experience do you have to base your opinion on?

    2. avatar Knute(ken) says:

      And you get the opponent’s blood all over you. Messy and disease ridden. Guns are a whole lot easier and cleaner.
      OTOH, I have precious little respect for pilots and such like who are happy to drop bombs that kill many, including innocent women and children, but cannot bear to think of pulling a trigger and producing one bloody corpse at muzzle contact range. The words; “Precious little snowflakes” come to mind…

  12. avatar Philip Twiss says:

    How about this, use a gun to commit a crime you get 10 more years, use a gun to commit a crime were anybody dies you get the death penalty… no adjectives, no qualifiers, no PC BS, just use a gun to commit a crime and you will serve more time… It will remove those with violet criminal intent out of our society. I grew up in Montgomery, AL… When criminals committed crimes with guns they got more time or the electric chair.

  13. avatar Marvin Beaver says:

    Justice Kavanaugh stated in his confirmation that he would rely on Constitutional president. This bad law has 33 years of poor president and should have been ruled Unconstitutionally Vague by SCOTUS 33 years ago

    1. avatar Victoria Illinois says:

      I’m confused. Precedent who?

  14. avatar Joe says:

    “…we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.”

    Well that’s refreshing to hear.

  15. avatar Grumpster says:

    Clarence Thomas, Sam Alito, and John Roberts all sided with Brett Kavanaugh on this yet I am not seeing any bashing of Clarence Thomas or Sam Alito?

    https://reason.com/2019/06/24/kavanaugh-accuses-gorsuch-of-judicial-activism-in-criminal-justice-case/

    Neil Gorsuch sided with the four “liberal” Justices on a landmark immigration case not that long ago either.

    https://www.vox.com/policy-and-politics/2018/4/17/17248094/neil-gorsuch-immigration-trump-supreme-court

    I am personally more worried about Neil Gorsuch than I am Brett Kavanaugh but either is a huge better choice that HRC would have made.

    I just hope that Neil Gorsuch does not find vagueness in the Second Amendment like the four “liberal” Justices already have.

    They should announce their ruling on the census case very soon and that IMO will be very telling.

    1. avatar FedUp says:

      In the dissenting opinion, Kavanaugh wrote that striking down the rule “is a serious mistake.” He cited statistics on gun violence,

      Thomas has always loved criminal laws, as long as he thinks they’ll put criminals in prison he doesn’t care how.

      Looks like Kavanaugh is more of the same, but he worded it in terms of ‘gun violence is a great excuse for violating the Constitution’.

    2. avatar Nanashi says:

      I take issue with Kavanaugh’s writing here, not his ruling. This confirms both very concerning things he said before confirmation will continue on the bench.

  16. avatar Mad Max says:

    “Together they made up the majority on a ruling that invalidates a part of the Gun Control Act that adds extra penalties to sentences for “crimes of violence” committed while in possession of a gun.”

    Now how about invalidating the rest of the GCA (and the NFA while they are at it).

  17. avatar Richard Steven Hack says:

    If I remember correctly, the law originally was even vaguer. I knew someone who was convicted of “use and possession” of a firearm in the commission of a felony. However, he argued on appeal that it was never proven of his *both* possessing *and* using the weapon used to kill another member of his “crew”. It was his partner who used the weapon to commit the murder. He got his five years given back to him by the appeals court.

    Then the law was rewritten to specify that any of the three options – using, carrying, OR possession of a weapon would qualify for the enhancement. The new version would have enabled the court to reject this guy’s appeal.

    The NRA has long lobbied for enhanced sentences for crimes committed with a firearm, as a means of assuaging the anti-gun backers desire for gun bans and to make criminals think twice about using a firearm in the commission of crimes because of the longer sentences they would risk if caught. I think these enhancements are probably a better idea than a worse idea.

    As someone suggested, perhaps changing the law to specify that *any* weapon used in a crime would qualify for an enhancement might be better.

    But in the end, no law passed is going to prevent criminals from ignoring the law – as we pro-gunners have said since forever. It’s only the highly professional criminals who might weigh their potential sentence length in advance in considering whether to do a crime – and very few of those probably do. So in the end, it’s irrelevant what the sentence is in terms of prevention.

    The only result is that the criminal spends more time in prison and less time on the street – but unless he is given life, eventually he will back on the street – and incarceration does not result in rehabilitation. So it’s just another example of a revolving door that revolves a bit more slowly.

  18. avatar Sam I Am says:

    The case at hand, and the opinions of the court are great fodder for discussing who should make laws, and who is throwing that responsibility to someone else, while claiming victory?

    If local government should pass a law that someone doing really bad things (as opposed to garden-variety bad things), the penalties should be much harsher for really bad things. Who would be satisfied with such law? Oh, wait, the local government included a provision that the local police and chief attorneys shall establish rules for determining which bad things are actually really bad things. There, that makes it better.

    In the fiction above, the “legislature” created a law, then made the enforcement agents responsible for deciding how it will be implemented. Are we happy with that?

    At SCOTUS, the issue was/is defining “violent crime”. When legislatures decide that undefined terms such as “violent crime” (“I can’t define it, but I know it when I see it.”) should be left to the enforcement agency to define as they please, are we happy with that? Do we like indefinite laws that favor us, and dislike those that don’t?

    Do we need gradations of crime at all? Someone smashes you arm with a bat, requiring amputation due to the amount of damage. What should be the penalty? Someone beats you to a bloody pulp with a bat, leaving you permanently incapable of self-sustaining life. What should be the penalty? Both events are assault with a deadly weapon.

    Should a person who virtually takes a life with a bat be treated the same as someone who does permanent damage, leaving the victim alive to be able to deal with the injury, and make a life for themselves? Should the penalty for any assault with any weapon be minimal, or draconian, in all cases? How do you write the law so as to definitively identify the scale of punishment due based on the damage done.

    In the end, vague laws are not simple to implement, nor determine when such vagueness is impossible to implement.

    On a related note, SCOTUS recently overturned a case based on the concept that the perps had to know they were prohibited to own guns, before they could be charged (there are legitimate circumstances where that is possible). Many thought that the ruling ran counter to the “ignorance of the law is no excuse/defense” jurisprudence.

    Not quite.

    In about 2007, a defense contractor appealed a conviction of fraud to the SC. The ruling was that in order to prove fraud, the government had to demonstrate that the defendant “intended” (direct quote) to commit fraud. The definition of fraud includes intent as an element; without intent, erroneous transactions are just misunderstandings, or mistakes. Here, we have SCOTUS earlier introducing “knowledge” of a crime (or intent to commit) as a legitimate requirement to declare someone guilty. Maybe the 2007 case is where Comey got the idea that lack of intent to commit national security crime was a sufficient deterrent to prosecution?

  19. avatar Vlad Tepes says:

    Once again the Supreme Court proves what complete Morons they often are. In Japan when they interviewed the Japanese Mafia and asked them why they did not use their illegal handguns to commit crime or assassinations they said that the penalties for using hand guns in a crime were so severe that they would not think of using them unless it was as a last resort and therefore they seldom use them. As a result you do not see stray bullets killing innocent people when two gangs go at each other because they just use knives or other weapons. No law is a panacea but Japan got it right with their hand gun law.

    1. avatar jwm says:

      You’re a true fascist. You can’t wait to throw decent folk in jail or kill them outright.

      Damn good thing your mother doesn’t let you have a gun in your basement.

    2. avatar Nanashi says:

      Pure propaganda. The reason they don’t commit homicides with firearm (aside from when they do), is that’s not how the Yakuza operate and very damaging to their long term health. While the western image of gangs is doped up rappers/illegal aliens dealing drugs and killing eachother in drive bys, the Yakuza are much quieter organizations that maintain some air of legitimacy and through it gain the passive support of the community. If they were to dispose of their rivals, much less public figures or police, so blatantly the heat would go WAY up. If they stick to gambling, prostitution and some rackets they are largely ignored.

  20. avatar Timothy Toroian says:

    Iis it better to be beaten to death by fists or shot?

  21. avatar Alan says:

    Less than clear laws are a problem, no question about that. Regarding the law here under discussion, it seems clear enough to me, though I will admit to the belief that 2 + 2 = 4, which might be a prejudicial factor. I would not so think, but then what do I know?

    1. avatar Sam I Am says:

      “Regarding the law here under discussion, it seems clear enough to me…”,

      Can you expand on that?

  22. avatar Alan says:

    By the way, if The Gun Control Act above mentioned is The Gun Control Act of 1968, then we are dealing with the fallout of a seriously flawed legislative mistake, which The Congress should have long since corrected, but hasn’t.

  23. avatar Andrew Lias says:

    Too Vague strikes it down? Lets get the NFA and GCA up there pronto!

  24. avatar Will Drider says:

    Don’t be fooled, this is all about CRIMINAL JUSTICE REFORM. Its about making decisions that will allow Cases to be Over turned, Sentences reduced and letting convicted criminals get back on the streets. This will apply retroactively to all related Cases AND will also be grounds for appeal on State Case based on Statutes with the identical wording.

    Fed and State prisons will have “clients” dancing on the Blocks!

    These “firearm enhanced penalties” were supposed to deter the presents and use of firearms during crimes. Obviously the convicted criminals didn’t get the memo or didn’t care.

    Does any body else find it odd that laws specifically targeting and penalizing criminal use of firearms is overturned: while public/media/political pressure to criminalize “Lawful” gun possesion and ban legal guns increases?

  25. avatar Kyle in Upstate NY says:

    I disagree with the conservatives on this one. Yeah, MAYBE not being able to tack on charges because a gun was used could lead to some more gun violence, but I favor freedom over perceived security. There are plenty of laws we could adopt to enhance public safety, but which would make for a more authoritarian society. Striking down this law protects defensive gun users more, because if charged, they can’t add more charges onto you for having used a gun to protect yourself.

  26. avatar Ron C says:

    “Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that given ordinary people fair warning about what the law demands of them.”

    Would this not also negate the bump-stock ban?

    1. avatar Tiger says:

      The ban is not new law. It is a re classing of a product under current law.

  27. avatar Aaron says:

    geez, here’s a case where the liberal justices were actually correct, striking down a vague law.

  28. avatar mac e. says:

    What is vague about a criminal arming himself – nearly always illegally – to commit a violent crime more efficiently (through intimidation) and with less likelihood of conviction at trial (by eliminating witnesses) and therefore willingly risking the possibility of more prison time (IF convicted) but accepting that risk rather than one presented by a living, certainly incriminating witness?

    1. avatar Sam I Am says:

      “What is vague about a criminal arming himself – nearly always illegally – to commit a violent crime more efficiently”

      The central question….what is “a violent crime”? Says who?

    2. avatar route66paul says:

      Because some criminals arm themselves for self defense, at least in their home. Given the people they deal with, you really can’t blame them. While you or I might try to figure out a safer way to make money, everyone should be able to protect themselves from violence and/or robbery.

  29. avatar tinhats says:

    If we don’t have laws that punish criminal gun use, we will have to settle for laws that punish law-abiding gun owners as the legislature’s way to cut down gun violence.

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