Pointing a Gun Is A Crime of Violence; Johnson v. United States Shrinks Further

The Sixth Circuit in United States v. Rafidi again grappled with what constitutes a “crime of violence” under 18 U.S.C. § 924(c), a question that has divided sharply the courts of appeals in the wake of the Supreme Court’s decision in Johnson v.United States, 559 U.S. 133 (2010). Rafidi presented directly the question of whether a violation of 18 U.S.C. § 111(b)(assault on a federal officer) constituted a “crime of violence” under § 924(c).

The case arose from execution of a search warrant at defendant’s residence by a number of law enforcement officers including federal agents. The officers knocked and announced and, according to the trial testimony, observed defendant through a glass window pick-up a silver gun. Defendant approached and swung open the front door and pointed the gun at a federal agent, which provoked another officer to open fire on defendant, although he was not hit. He retreated inside his residence, then emerged unarmed and surrendered.

Rafidi was charged and found guilty of two offenses: (1) forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b); and, (2) using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(ii). He was sentenced to 10 months on the § 111 charge and a consecutive 84 months on the § 924 charge. Defendant’s main appeal issue was whether a violation of § 111 is a “crime of violence” for purposes of § 924(c).

The Court began its analysis by dissembling § 111, a “rather convoluted statute,” that sets forth three separate crimes: (1) misdemeanor simple assault; (2) felony assault; and, (3) aggravated felony assaults involving a deadly or dangerous weapon or causing bodily injury. The third of these applied to defendant, so the question, as the Court framed it based on Johnson, was “whether § 111(b) has as an element the use or attempted use of ‘violent force – that is, force capable of causing physical pain or injury to another person.’”

Key, the court asserted, was that a violation of § 111 requires that a defendant act forcibly. This element is satisfied in two ways, both of which establish § 111(b) as a “crime of violence.” First, the force element could be satisfied by proof of actual physical contact, which combined with use of a deadly weapon is sufficient to establish § 111(b) as a “crime of violence.” Second, even in the absence of physical contact, the force element is established by proof of a threat or display of physical aggression sufficient “to inspire fear of pain, bodily harm, or death.” Pointing a gun at a federal officer did this so the court held that the defendant’s conviction for § 111(b) constitutes a “crime of violence” under § 924(c)(3).

Senior Circuit Judge Andre Davis, visiting from the Fourth Circuit, concurred in result and in dubitante. Judge Davis’ expressed concern that “the use of a dangerous weapon in ‘forcibly,’ but not ‘violently,’ resisting arrest by an FBI agent, for example, categorically elevates the kind of non-violent force sufficient to satisfy § 111(a) into ‘violent force’ within the meaning of” Johnson’s holding. Nevertheless, Judge Davis concurred based on the court’s prior decision in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and on the grounds that a violation of § 111(b) is a predicate offense under the residual clause of § 924(c)(3)(B).

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