- The Washington Times - Monday, June 3, 2019

One man punched a police officer in the face. Another reached for a woman’s neck and grabbed her necklace.

The Supreme Court deemed one of those a violent felony, triggering the Armed Career Criminal Act. The other wasn’t so clear.

You might be surprised by which one was.

The Supreme Court ruled last month that Reinaldo Santos, the man convicted of battery for striking an officer in the face, can challenge whether the incident rises to the level of a violent felony, which helped earn him 30 years in prison because of his criminal history.

Yet just four months earlier, the court ruled that Denard Stokeling’s necklace snatch was violent enough to earn him the 15-year sentence called for under the ACCA.

A curious amount of the high court’s business has been consumed with refereeing such definitional battles since the justices ruled in 2015 that the ACCA was overly broad.

The ruling in Johnson v. United States sparked a wave of claims from prisoners who say but for a borderline crime of violence, they would be serving much shorter sentences.

“There is a lot of these cases partly because people in jail have a lot of free time,” said Curt Levey, president of the Committee for Justice.

For convicts who are immigrants, it could be the difference between freedom in the U.S. and deportation, thanks to a 2018 ruling that mirrors the Johnson case but came in immigration law. Justice Neil M. Gorsuch joined the high court’s Democratic appointees in a 5-4 ruling saying the deportation statute’s reference to violent crimes was too vague to be good law.

In Santos’ case, his 30-year sentence could be cut to 10 years depending on how the lower courts rule.

Santos argued that a conviction under Florida’s battery statute shouldn’t automatically be deemed violent under the federal ACCA because Florida’s law uses the term “touches or strikes.” While one of those might be inherently violent, his defense says, the other is not.

“In order to punish somebody for a behavior, the behavior has to be clearly defined by law,” said Hadar Aviram, a professor at UC Hastings College of the Law.

The Trump Justice Department sided with Santos, telling the Supreme Court that the case deserved a new look by lower judges.

The court agreed and remanded the case to the 11th U.S. Circuit Court of Appeals.

No need for that, Justice Samuel A. Alito Jr. said in a dissent joined by Justice Clarence Thomas.

“Because the record makes ‘perfectly clear’ that petitioner ‘was convicted of battery on a law enforcement officer by striking, which involves the use of physical force against the person of another,’ I would count the conviction as a ‘violent felony,’” Justice Alito wrote.

He dissented in the 2015 Johnson case, too.

Mr. Levey said that may have carried over to his dissent in the Santos case.

“Alito is, after all, a former prosecutor,” Mr. Levey said.

Justices Alito and Thomas prevailed in the case — another from Florida — involving Stokeling, the necklace snatcher. In an opinion joined by Justices Gorsuch, Brett M. Kavanaugh and Stephen G. Breyer, they ruled that a conviction under Florida’s robbery law requires “the use of force, violence, assault or putting in fear.”

Given that, anyone convicted is automatically guilty of a crime of violence under the definitions of the federal ACCA, Justice Thomas wrote.

Because of that, a 2016 conviction for being a felon in possession of a firearm triggered an automatic 15-year sentence.

Justice Sonia Sotomayor, in a stern dissent, said that for the action to be considered a violent felony, the criminal must use enough force to cause physical pain or injury.

She said a thief who pulls away from a loose grasp or snatches a handbag that is not held tightly shouldn’t qualify as violent but would be considered so under Florida’s law.

Lower courts also are grappling with the implications.

Some courts have ruled that a conviction of driving under the influence does not apply even though the crime presents a risk of harm to others. Other courts have ruled that fleeing from police does constitute a violent felony.

“That whole doctrine is not well thought out. It is not well organized,” Ms. Aviram said.

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