United States v. Davis (18-431)

argument 18-431

United States v. Davis

Supreme Court of the United States 59 min 7 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central legal issue in United States v. Davis?

John G. Roberts 0:00

We'll hear argument first this morning, case eighteen four thirty one, United States versus Davis. Mr. Fagan.

Elena Kagan 0:06

Thank you, Mr Chief Justice, and may it please the Court. In order to render Section nine twenty four C three B unconstitutional, respondents need to show that the only plausible construction is one in which a defendant's guilt or innocence hinges on a judge's imagination about how an ordinary defendant might act, rather than a jury's finding about how a particular defendant acted. That's a very unusual way to draw a line between criminal and non criminal conduct in the context of a jury trial. And I don't think lower courts would readily have accepted it if Section nine twenty four C were the only or the first context to present a choice between a categorical approach and a circumstance specific one.

Elena Kagan 0:50

The operative language of the statute Mr Fagin. What do you think Congress intended in nineteen eighty six? I I think Congress in nineteen eighty six uh probably didn't focus on this question particularly having I understand it didn't. But I think if Congress had thought about it. No, I didn't ask had. because that's rewriting their intent. Given the circumstances in nineteen eighty six, that sixteen B had been read in the categorical approach, that um they adopted it for the Bail Reform Act and you're not challenging that that's a categorical approach? That for decades you have been saying that sixteen B is better read as the categorical approach. What do you think Congress intended in nineteen eighty six?

Elena Kagan 1:40

Without reference to our labor holding. Yeah. A couple of points, Your Honor. First of all, we we don't agree about the Bail Reform Act necessarily. But and I also this was not the ordinary case categorical approach, or any categorical approach, was not well established in nineteen eighty six. They've identified a single decision that was a procurium decision of the Second Circuit that had applied a form of categorical approach to hold that drug trafficking crimes were not covered by the then existing version of nine twenty four C. Congress clearly repudiated that when it added the definition of drug trafficking. You ta thought for a very long time that the language was best read. as applying the categorical approach.

Elena Kagan 2:21

Well, Your Honor, so as far as the government's role in this, after a few fits and starts, there were briefs we filed that urged a circumstance specific approach. And I'd also note the Sentencing Commission read the language in a circumstance specific way from nineteen eighty seven to nineteen eighty nine. After a few fits and starts, we settled into the categorical approach because that's where courts seemed to be going, particularly after the ACOS residual clause and the rest of the Armed Career Criminal Act were enacted and because it appeared to be workable, it appeared to be constitutional. Now I I know you didn't want me to reference this court's decisions, but after Damaya and Johnson it's clear that it is neither workable nor constitutional.

Elena Kagan 2:59

So we've gone back and taken a fresh look. And I think if you take a fresh look at the statute, You'll see that it's better read, or at least reasonably read, as the c canon of constitutional avoidance would demand, to have a circumstance specific approach. But the

Unknown 3:14

this case was not Adjudicated on a circumstance specific approach, right? That's correct,

Elena Kagan 3:21

Your Honor. So there was

Unknown 3:22

you would have to have uh at least a redoing of the trial.

Elena Kagan 3:26

Well, Your Honor, we think that the error could be found harmless, but we would be if the Court doesn't agree with us on that, it could send it back to the Court of Appeals and possibly there could be a retrial. But if you if you look at the operative language of the statute here, it clearly uses the term crime of violence in a context specific way. It prohibits a defendant from using or carrying a firearm during or in relation to a crime of violence. And I think the subsection specific definition of crime of violence in section nine twenty four C three is best understood. and certainly reasonably understood