In United States v. Vail-Bailon, No. 15-10351 (Aug. 25, 2017) (Ed Carnes, Tjoflat, Hull, Marcus, William Pryor, Julie Carnes), the en banc Court -- in a closely divided 6-5 opinion -- held that Florida felony battery categorically qualifies as a crime of violence under the elements clause.
The majority found that Florida felony battery categorically met the definition of "physical force" in Curtis Johnson. The Court concluded that, because Florida felony battery requires the causation of great bodily harm, it was necessarily "capable" of causing pain or injury. It therefore necessarily required physical force under Curtis Johnson. In so concluding, the Court rejected the argument that "physical force" under Curtis Johnson required force "likely" to cause pain or injury. And the Court rejected that argument that Florida felony battery could possibly be committed by only a slight touching. Under this reasoning, it would appear that Florida aggravated battery would also qualify under the elements clause. Notably, however, the Court did not decide whether the Florida battery statute was divisible, since it found that felony battery was categorically a crime of violence, even when committed by a touching. This may leave open the possibility of challenging simple battery, battery on a law-enforcement officer, and any other simple-battery offenses that do not require the causation of great bodily harm. The Court also found that its conclusion complied with Leocal because felony battery required an intentional touching.
Judge Wilson, joined by Judges Martin, Jordan, Rosenbaum, and Jill Pryor, dissented. He argued that Curtis Johnson's definition of "physical force" required a certain "degree of force," not a "capability" of causing pain or injury. He emphasized that even the slightest touching has the capability of causing pain or injury, and Curtis Johnson already held that such conduct did not satisfy the elements clause. And he concluded that Florida felony battery could indeed be committed by a mere touching, the exact same degree of force required to commit simple battery. The only difference with felony battery is that the mere touching unintentionally happens to cause great bodily harm; but he found that this result element was irrelevant because it does not change the degree of force necessary to commit the offense.
Judge Rosenbaum, joined in part by Judges Martin and Jordan, issued a separate dissent, adding some arguments bolstering Judge Wilson's dissent. In addition, and writing only for herself, she argued that the unintentional causation of bodily harm element of the felony battery statute also did not satisfy the "use" prong of the elements clause under Leocal, Castleman, and Voisine, because, although it required an intentional act, it did not require an intent to injure or engage in an act that has a substantial likelihood of injuring another.