(NOTE: Rory Little anticipated this development in his preview for this blog on the Johnson case, here.)
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The Supreme Court decided on Friday to make a new start in reviewing a case it has already heard, involving a law that imposes added prison time for individuals found to be “armed career criminals.” The Court held a hearing on November 5 in Johnson v. United States, focusing on the issue whether merely having in one’s possession a “short-barreled shotgun” is a violent felony justifying a mandatory fifteen-year prison sentence after conviction for a gun crime.
In its new order, the Court told lawyers in the case to file new briefs and be prepared to argue in April on the question whether a part of the Armed Career Criminal Act is “unconstitutionally vague.” This is the first case the Court has set for hearing in April. The Court is expected to grant review later this month in other cases likely to be argued then.
At issue in the new review is the constitutionality of what lawyers and judges call the “residual clause” of the Act, which spells out what kinds of crimes should be treated as violent offenses. Under the Act, if an individual has been convicted of illegally having a gun and has three or more prior convictions for “a violent felony,” the sentence for the gun offense must be fifteen years.
The Act says that a violent crime is one that can lead to a prison sentence of more than one year, and involved the use or attempted or threatened use of physical force against someone else. After specifying that burglary, arson, extortion, and the use of explosives all qualify as violent crimes, the provision adds this phrase: “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Nearly seven years ago, the Court sought to narrow that provision, in the case of Begay v. United States, by declaring that the extra clause does not make drunk driving a violent crime in the case of an individual who has been convicted of an illegal gun offense and has multiple DUI convictions on his record. To qualify as a violent crime, the Court declared in that six-to-three ruling, it must involve “purposeful, violent, and aggressive conduct,” and it concluded that DUI offenses do not meet that test.
The case under the Act unfolding in the Court this Term involves a Minnesota man, Samuel James Johnson, suspected by the government of being part of plots to carry out terrorist acts inside the United States. Federal officials described him as a founder of the Aryan Liberation Movement, which he planned to support by counterfeiting U.S. currency.
He had allegedly admitted to an undercover federal agent that he had manufactured explosives for the Movement’s use. He allegedly planned attacks on various targets in Minnesota. The government contended, during Johnson’s prosecution, that he was covered by the Armed Career Criminal Act, contending that he had at least three prior convictions for violent crimes, one of which was illegally possessing a short-barreled shotgun. He was given the enhanced sentence after he had pleaded guilty to one count of being a convicted felon and possessing a gun.
The Supreme Court granted his petition for review in April last year, and the case came up for argument November 5. It has been under discussion privately by the Justices since then — a process that presumably led the Court to question the validity of the “residual clause” of the Act.
Johnson’s new brief on that issue is due February 18, the government brief is due March 20, and a reply brief from Johnson would be due April 10. The Court’s order further specified that oral argument would be held “during the April 2015 argument session,” which runs from April 20 through 29.
