By David Debold, a Partner in the Washington, DC office of Gibson, Dunn & Crutcher LLP.  He practices in the Appellate and White Collar practice groups.  He and other Gibson Dunn attorneys filed an amicus brief in support of the Respondents in U.S. v. Davis on behalf of FAMM.

Sometimes it takes the actions of some pretty unsympathetic characters to test judicial resolve to strike down vaguely written statutes as opposed to trying to “save” them.  The Supreme Court’s recent decision in United States v. Davis, 588 U.S. ___ (June 24, 2019), shows that a majority is willing to stick to that constitutionally required approach.  The outcome is a good sign that the current Court will resist the temptation to write a “better” law when the statute Congress drafted fails to give fair warning of the line between criminal and innocent conduct.

The defendants in Davis committed a string of gas station robberies.  Federal prosecutors charged them with several counts of robbery under the Hobbs Act, plus a Hobbs Act conspiracy count.  At issue were additional charges under 18 U.S.C. § 924(c), which imposes a mandatory minimum sentence of at least five years for using or carrying a firearm during and in relation to a federal crime of violence or drug trafficking crime.  A crime of violence is a felony offense that either (i) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (the “elements clause”), or (ii) “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (the “residual clause”).