Violence By Any Other Name: Interpreting “Crimes of Violence” under 18 U.S.C. § 16(a)

BACKGROUND

18 U.S.C. § 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In Leocal v. Ashcroft (2004), the Supreme Court held that the section requires courts “to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Essentially, in applying § 16(a), courts must presume that a conviction rests upon nothing more than the least of the acts criminalized and then determine whether that conviction matches up with the federal offense.

The Supreme Court reinforced its holding in Johnson v. United States (2010), where it found a provision of the Armed Career Criminal Act (ACCA) similar to § 16(a). The Court observed that the word “force” might evoke the common-law crime of battery, where “the intentional application of unlawful force against the person of another” could “be satisfied by even the slightest offensive touching.” Thus, it rejected the ACCA’s interpretation and maintained its interpretation of “use of physical force” in Leocal.

However, in Castleman v. United States (2014), the Court adopted a different meaning of the phrase “use of physical force” in their interpretation of the Domestic Violence Gun Offender Ban. The Court departed from the interpretation adopted in Johnson and Leocal and held that under § 921(a)(33)(A) a prior conviction has the “use of physical force” as an element even if it can be satisfied by “the slightest offensive touching,” thus adopting for § 921(a)(33)(A) the common-law meaning of “force.” At the same time, the Court emphasized that nothing in its decision casted doubt on Leocal’s and Johnson’s holding that a “crime of violence” requires “violent force” and not mere common-law force. However, the Court expressly reserved the issue of whether or not the causation of bodily injury necessarily entails violent force as required by § 16(a).

THE ISSUE

Does an offense qualify as a crime of violence within the meaning of § 16(a) if a state statute criminalizes only the causation or threat of bodily harm—without a distinct element requiring the use or threatened use of physical force? Or does § 16(a) apply only if the statute also requires the use, attempted use, or threatened use of physical force?

THE SPLIT

The First, Second, and Fifth Circuits hold that § 16(a) does not apply to convictions under statutes that do not include physical force as an element of the crime, reasoning that bodily injury can be inflicted without physical force—such as by trickery or poisoning. However, the Eighth, Seventh, and Ninth Circuits hold that § 16(a) covers such offenses considering that any bodily injury at least involves indirect physical force.

In Chrzanoski v. Ashcroft (2003), the Second Circuit explained that “use of force must be an element of that offense for that offense to be a crime of violence under § 16(a).” Therefore, where nothing in the language of the state statute requires the government to prove that force was used in causing the injury, the force element required by § 16(a) is absent. Accordingly, the Second Circuit rejected the Government’s argument “that force is implicit in the statute,” because “such an argument equates the use of physical force with harm or injury.” In United States v. Villegas-Hernandez (2006), the Fifth Circuit followed the Second Circuit’s reasoning, explaining that “Chrzanoski’s analysis is fully applicable” to a Texas domestic assault statute criminalizing the causation of “bodily injury to another.” The court held that the force element required by § 16(a) was absent because “‘bodily injury’ … could result from any number of acts” that would not require “the government … to show the defendant used physical force.” The First Circuit reached the same conclusion in Whyte v. Lynch (2015) by explaining that where the statute “identifies only two elements”—intent to cause physical injury and causing such injury—the crime does not contain as a necessary element “the use, attempted use, or threatened use” of violent force.

On the other hand, the Seventh, Eighth, and Ninth Circuits hold that § 16(a) applies to “bodily harm” offenses even if the relevant state statute does not include physical force as an element of the crime. In De Leon Castellanos v. Holder (2011), the Seventh Circuit held that under § 16(a), and under Illinois law, a misdemeanor conviction for “intentionally causing bodily harm to any family or household member” constitutes a “crime of violence.” The Ninth Circuit similarly held that offenses covering threats of injury—regardless of how that injury is caused—constitutes crimes of violence under § 16(a). In Arellano Hernandez v. Lynch (2016), the court found that a California conviction for a mere attempt to “threaten to commit a crime which will result in death or great bodily injury” involves “the use, attempted use, or threatened use of force” meant by § 16(a). Finally, the Eighth Circuit joined the Seventh and Ninth Circuits in United States v. Schaffer (2016) holding that state statutes criminalizing the causation, or threatened causation, of bodily injury necessarily includes the force requirement of § 16(a) under ACCA’s force prong—which mirrors that in § 16(a). In the Eighth Circuit’s view, causing bodily harm or fear of imminent bodily harm by means such as exposing someone to a deadly virus or by employing poison are indirect applications of physical force. Thus, a statutory element requiring actual or threatened bodily injury is necessarily equivalent to “an element requiring the use, attempted use, or threatened use of physical force.”

LOOKING FORWARD

This circuit split is a significant because § 16(a) operates in numerous contexts and there are dozens of state crimes across the country that require only “bodily harm,” “physical harm,” or “physical injury,” without an additional “physical force” requirement. All of these statutes implicate the circuit split because inconsistent results will continue to occur unless the Supreme Court clarifies the issue. Right now, the government can engage in forum-shopping in a circuit with precedent favorable to the government. Furthermore, section 16(a) supplies the general definition for a “crime of violence” for the entire Criminal Code. As such, it operates in the context of more than a dozen criminal provisions, several of which impose severe, mandatory sentences for those deemed to have prior convictions for “crimes of violence,” regardless of the sentence imposed for the original offense.