Another Cert Grant on ACCA "Violent Felony" Definition: Does a Nonconsensual Touching Constitute the Use of Physical Force?

Yesterday the Supreme Court granted cert in Johnson v. United States, No. 08-6925. The two questions presented are:

1. Whether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ''violent felony" under the federal Armed Career Criminal Act, which defines ''violent felony" as, inter alia, any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another."

2. Whether this court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a "violent felony" - a prior offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching in the sense of "Newtonian mechanics" or whether the physical force required must be in some way violent in nature - that is the sort of force that is intended to cause bodily injury, or at a minimum likely to do so.

I don't know off the top of my head if there's any Fifth Circuit case law on question one. As for question two, the Fifth Circuit has held that "force," for purposes of use-of-force clauses, is "synonymous with destructive or violence force." United States v. Dominguez, 479 F.3d 345, 345 (5th Cir. 2007). Plus, in Leocal v. Ashcroft, the Supreme Court interpreted the use-of-force clause in 18 U.S.C. § 16 to "suggest[] a category of violent, active crimes." 543 U.S. 1, 11 (2004).

By the way, the offense in question is simple battery on a police officer, which happens to be a felony under Florida law, and which can be committed merely by a nonconsensual touching (such as spitting on a police). The Florida Supreme Court has held that---under a Flordia statute parallelling the use-of-force clause in the ACCA's "violent felony" definition, and elsewhere---the offense does not involve the use of physical force or violence. The Eleventh Circuit, in Johnson, held that it wasn't bound by the Florida Surpeme Court's determination of whether the offense involves physical force, and also that simply touching a person without that person's consent constitutes the type of physical force necessary to qualify the offense as an ACCA "violent felony" under that defintion's use-of-force clause.

Interestingly (depending on what you find interesting, of course), the Supreme Court declined to grant cert on the third question presented, which was a should-Almendarez-Torres-be-overruled issue: "Whether the district court lacked the authority to sentence Mr. Johnson as an Armed Career Criminal, given that Mr. Johnson did not admit the predicate offenses for such a classification when he pled guilty."