the first is that it's satisfied by causing the minimus pain and the second is that that is i like causing any impairment of the physical condition and so i want to just briefly just a few points with respect to both reasons this morning now or injury and i think you know that for these reasons the first is that the castleman in four years later after strengthening councilmen the courts reserves that very question in the really strange world in which violent force is almost identical almost every word in the wyoming statute appears in the statute dressed  still a category between that level of force a violent force and the de minimus pain that's contemplated by the wyoming's president courts expression repeated admonishment in this case is that anything goes  with sleeping pill doesn't some some of these types of examples that you gave that could be impairment of the conditions a second condition i think you mentioned dying flashlight in the after size of the setting of stink bomb that sort of thing there's never been a case  it's true right i don't disagree with the government every citation of of the unfactual the facts underpinning those state cases right they tend to involve significant degrees of force but it doesn't matter for our position because we have clear statements from the  may have please the court counsel my name is jason conner i mean this is the united states attorney out of land or wyoming i apologize in advance i start coughing more than i talk i got a bug driving down last night so i'll suck on some water and cough drop since the supreme court decided johnson in twenty fifteen the issue of what is a crime of violence a seemingly become unmoored from reality we are now asked to discuss and debate whether something only seemingly possible on a saturday morning cartoons namely flashlight beans and stink bombs sent in the nose of an officer counts of felony interference with a peace officer but fortunately honors the except the president dictates this court the supreme court indicate we do not need to go down that rabbit hole those are theoretical possibilities not realistic probability the real and only question here is is the minimum degree of force requirement of the wyoming assault on a peace officer status felony assault does that satisfy physical force that is does it cause physical injury pain something akin to a slap in the face and the answer resounding yes the wyoming supreme court has repeatedly stated what degree of force is required and it stated that it's a four incomes in the form of kicking punching elbowing knee choking shoving head butting or threats with a dangerous weapon including a current gun this is not to minimize contact this is not mere touching the johnson was talking about this is it this is physical force this is violence force at this court well knows under the guidelines a crime of violence is one that has an element of attempted use or threatened use physical force seems easy enough and the supreme court well settled precedent says that physical force means violent force that force capable of causing physical pain or injury to another person such as a slap in the face thus johnson in two thousand and ten standing alone does not require an adjective akin to a slap in the face the court said that plain enough and it has been determined by this court and others that this standard is not a high hurdle not nearly as high as the defendant suggests in castleman as judge hart noted scalia's concurring opinion outlined a host of other examples of violent force that included hitting slapping shoving and grabbing a punching your pinching biting and hair pulling and this is not your ordinary concurs first of all it was with that example of physical force in mind we now turn to the issue and other sports will focus on this statute this wyoming statute and the minimum i think the minimum culpable conduct is the specific i don't see how we can make it something greater than that i would agree are that the language of the statute says physical pain impairment of a bodily condition or for or elliptical pain karma illness or when they go through the categorical approach say look what is the minimum conduct require them to do that we just don't look at the statute in isolation because if we did the united states can cite more cases with identical language from the seven eleventh's and eight circuit where those courts have said that language exact same language any illness any impairment that's good to go that's categorically cries of violence so we're left in a conundrum of do we just make it up or should we look to see what the wyoming supreme court actually an impairment is synonymous with injury so i think that it's a million dollar question this again is a felony assault on a peace officer that impairment is synonymous with injury that we look to the state court cases and we do this in all of the cases all of the circuits now we're all going through this exercise of what are these statutory terms mean because they all meant what they said it would be an easy thing if we could all agree was met we wouldn't be here and so we look to what the wyoming supreme court said in those cases they talk about kicking punching fighting there's no flashlight there's no gauge or beans there's no stink bombs in this court and the decision in court said look that's yeah that's maybe possible that weaponized the could be a dangerous weapon or a poison even judge was heresy to that but come on i'm looking through all our many cases and there's no weaponize these there's no but it's not what they're talking about the same thing we're having this whole discussion here what is the crime of violence so in the terms of a violent felony under johnson twenty ten it has to be more than at the minimum stuffed under castleman it essentially can be any crime of domestic violence so we're in this weird world where words don't mean what they see seemingly and this is where i would hate to say it's where the people on the street look at lawyers what are you guys talking to and so your hon can't exactly answer that question other than to say that i don't think it is clear that any impairment of physical condition it could be extended to the extreme and we could walk to the statute books and do all  framework this court of the stablished as we look at the minimum conduct required by statute in order to help us determine that we look what are the elements of the offense dictionary definition looks one way but when we look into what is why only actually  what is the statute actually mean in practice the wyoming to claim court is shown or that means punching elbowing me kicking threatening with a weapon is not a flashlight but i understand your concern your  me you know or maybe so maybe spraying the officer was something in time so that you know in paris his eyesight impaired his physical condition and i thought about that and i think that would be different i think when we start to get into these exaggerated extremes and i would i don't know that that's not exaggerated and i don't think i'm saying i'm not sure it is i think spring something in an officer's eyes is not and i think the seventh circuit and jennings in some of those cases address that where in may through you're in an officer's face and they in the defendant get all that hurt that's just an impairment big deal you got your i'm going to face the courts that burn that hurt that physical contact that's more than just a minute's touch and in this case argued somebody actually 're going to have to bring a doctor in to determine does that even impair a physical condition i don't know that it does i mean a stink bomb goes off and here we smell it and i really impaired or is it just covering it up i mean what does that mean imperative if if a defendant talks really quietly when officer says what's your name he's just maybe he's is that count as impairing is hearing i don't think it's going to go to that extreme and your honor i don't think this court needs to justice or judge host said look this decision goes against decisions in at least six other circuits it goes against all these other circuits that talk about it's a slap in the face is not an all you need is more than  exact same language we have here court said that's fine categorically a crime of violence the seventh circuit and jennings the court there said look the defense trying to set the bar higher than the minimum force earn higher than mere physical pain and injury it's not any higher it's akin to a slap in the face physical pain or injury and again the seventh circuit in jetting with look at the same kind of language bodily harm impairment of a physical condition seventh circuit in the eighty's judge easterbrook said that all johnson twenty ten required was more than the minimum for all it takes is physical pain physical injury in the cases recently cited in the united states twenty eight j letter  the duncan case again out of the seventh circuit said look when we were talking in flores versus ashcroft and johnson this report in johnson's one ten they weren't saying severe an extreme bodily injury it's just physical pain injury can and that's how the eleventh circuit interpreted that and so that's what the united states would argue that it means essentially the same thing it's a different way of skinning the same cat it's just a different way of i would call it a scrivener's saying the same thing twice last will and test and physical pain are impairment of the physical condition the seventh circuit meant phyllis i said that right again said if you put a blanket over somebody's face for fifteen seconds that can the mere enough although unpublished before circuit and polled said essentially judge o'brien did in the garcia case in this court and that is that if a slap in the face is fission force for physical pain or injury then certainly pushing or shoving someone to deprive them of their property to rip that away constitutes requisite physical force you're out of the point of all these examples is that if we accept johnson twenty ten for what it just a few few points the one thing i guess that the governor i agree on is that there is a split at this point i think between the circuits right the fifth circuit and the seventh circuit have a different view of this argument about the quantum of injury