If a person in a federal prosecution is convicted of being a felon in possession of a firearm and also has three prior “violent felony” convictions the penalty is increased to a mandatory minimum of fifteen years in prison. That is called the Armed Career Criminal Act of 1984 or the ACCA. That part of the law was struck down by the US Supreme Court as unconstitutionally vague on June 26, 2015 in the case of Johnson v. United States. It was the same day as the court also upheld same sex marriages.

The ACCA defined a “violent felony” in its residual clause as a crime involving conduct that presents a serious potential risk of physical injury to another.

In this Minnesota case, Johnson was convicted in federal court of being a felon in possession of an AK-47 assault rifle. The trial court agreed with the government that Johnson’s previous conviction for being in possession of a short-barreled shotgun met the definition of the residual clause therefore presenting a serious potential risk of physical injury to another. Johnson was sentenced to 15 years.

The Fifth Amendment of the Constitution requires that a law may not be so vague that it fails to give ordinary people fair notice of the conduct it punishes and therefore invites arbitrary enforcement. The residual clause was challenged as being unconstitutionally vague.

The Court has written opinions about the residual clause on four previous occasions. Regarding those previous opinions, Justice Scalia wrote that “Nine years; experience trying to derive meaning from the residual clause convinced us that we have embarked upon a failed enterprise”. He further went on to say that sentencing someone with 15 years to life for violating the residual clause does not comport with the Constitution’s Fifth Amendment requirement for due process.

They found that is nearly impossible to apply the clause consistently. Because the statute demands a court to assess the potential risk, it is not judging the act that occurred in a specific instance. Instead, a court is supposed to assess the risk in the ordinary case of the crime. This abstract inquiry offers significantly less predictability and leads to inconsistent results.

The Court specifically overruled its previous decisions upholding the residual clause. It also overruled a recent Sixth Circuit case U.S. v. Welch where they decided that the Ohio law of attempting to fail to obey the order of a police officer.

This is opinion is great news. The residual clause of the ACCA is now unenforceable and can no longer be used by federal prosecutors in enhance a firearm charge to a fifteen year penalty.