thank you your honors may please the court my name is rob meyers and i represent the appellant in this matter patrick jones your honor the supreme court in curtis johnson defined physical force under the armed criminal act as violent force the issue before the court today is whether force the causes only physical uneasiness and mild discomfort can be classified as violent as that term is used in the armed criminal act under the reasoning of curtis johnson we believe that the clear answer is no and curtis johnson i think supplies the reasoning in the principles that can decide this case curtis johnson was analyzing the meaning of physical force is that term is used in the force clause of the earned career criminal act and it said that ultimately cont determines meaning and physical force is not a defined term so what's the context the first context is it's in a statute called the intersection of the statute that deals with violent felonies so the first where the supreme court took a look at was the word violent and it said that violent connotes a substantial degree of force and it referred to three definitions of the word violent to support this point one  fined violent as moving acting or characterized by physical force especially by extreme and sudden or by unjust or improper force serious severe vehement the next characterized by the expression of great physical force or strength the next of or relating to or characterized by strong physical force then the supreme court said that when you pair the word violent with the word felony the  forcible rape and assault and battery with a dangerous weapon so given this reasoning given this context of defining the term physical force when the supreme court in curtis johnson says that physical force is violent for force capable of causing physical pain or injury to minimize pain is simply not enough it doesn't make any sense with the context of how curtis johnson defines the term physical force in the armed criminal act i've also note that in the the the conviction here for mr jones for battery to law enforcement officer is fundamentally wisconsin's simple battery that is elevated to a felony because of the status of the victim in this case a law enforcement officer and wisconsin simple battery is normally a a misdemeanor so in the case higgs the wisconsin court of appeals said that the conduct there qualified as there was a battery by president which is simple battery that is just committed by a president so it's the same standard it's intentionally causing bodily harm they said that the conduct there was convictable under the statute because at the very least it was conduct that caused physical uneasiness that qualified as mild discomfort your honour's force that causes mild discomfort has no connection to physical for correct your honor if it is true that in higgs the guard testified that the urine thrown in his face caused a stinging sensation in his eyes but when the wisconsin court was analyzing whether that conduct satisfied bodily harm sad well it's going to turn on whether it's it qualifies as pain and they defined pain as the kind of pain that at the very least could be convictable under the statute as pain that is equivalent to a localized definition it simply said that curtis johnson says physical force is violent force is capable of causing pain the battery statute under wisconsin law requires intentionally causing bodily harm bodily harm is defined as in part pain therefore a conviction under the wisconsin battery statute satisfies curtis johnson's definition but it didn't grapple with all the contacts that curtis johnson supplied when defining physical force in my mind there are three categories i think do you think the same circuit would roll yes in my mind there are in the supreme court possibly say a slap in the face would qualify given all the context that you rely on well rumor your honor they didn't say that it would call ice qualify they said that it might qualify so in my  my way of thinking that's perfectly consistent with the context argument that i'm making an open handed strike to the why do you think they mention the slap in the faces why do you think they mention that if they didn't mean to indicate that it would qualify well they use the qualifier might they did not they did not say that a slap in the face would unreservedly qualify in the force cause they said a slap in the face might qualify so you think if there were a state statute that made it a felony to point slap someone in the face that it would not qualify as a violent felony i think that would be a closer question than we have in this case because i think that a slap in the face is well above physical on easiness the qualifies at the very least as mild discomfort so i don't think the court needs to grapple with the harder question of whether a slap my qualify hard because the supreme court said it might qualify right i mean it's that's on the border with this offense which is far beneath that i think you'd be hard pressed to argue that a slap in the face is just something that makes you express feel mild discomfort i mean the slap in the face can be a serious serious thing but it's a categorical questions from people who don't slap as hard as other people right and that's what i think makes slapping a difficult case and probably why the supreme court's other slap in the face might qualify but what i don't think is difficult is when you have a state supreme court or sorry state court of appeals case telling you that their definition of pain no i mean we cite some some some other cases in our brief but i think the important thing about higgs is the principle that it establishes and under the logic of curtis johnson when we're looking at what are the elements of a state offense state law controls that's a clear rule announced by curtis johnson and then when you analyze whether those elements satisfy the federal definition you turn to federal law so we have to take the leading case on what pain is from wisconsin at face value and it says that pai under the statute is physical and using as the qualified at the very least as mild discomfort so i think that there are at least three categories of force there is the easiest case which curtis johnson explicitly rejected that is physical force that is offensive contact right that doesn't qualify there is a second category of force that be weak an offensive contact obviously causes no pain that would be the distinction from the line that takes draw driv right there is some pain under the hague formulation so the second category heading in the first category you want to say is offensive touching that involves no pain that i understand i correct yes he did ok yeah right encouraged johnson rejected that right there is a what about offensive touching that causes uneasiness that would not qualify either so that's a different category so there are at least three categories and if you want to get if we want to get you know really sort of us how many there are really i mean if it's more than three we should know that well all the court needs to decide is that there are three to decide this case there's offensive touching which curtis johnson says doesn't count there's weak physical force that causes only physical and easing us and mild discomfort and i think if that counts you get absurd results and then there's a third category of case which is for the you know strong physical force that causes more than minimis pain and that would would clearly count now whether there's other categories between two and three is something that this court doesn't have to rush to wrestle with at this time all this court needs to do to decide this case is to hold that weak physical force that causes only physical an easing its or mild discomfort does not satisfy curtis johnson's definition of physical force in the armed criminal act why would it be limited to weak physical force what if it's strong physical force that causes physical uneasy this would not be covered by the statute i think that i think it's going to be a rare case where strong physical force causes only mild discomfort but yeah i think that strong physical force that i suppose when there's a weak physical force it causes severe pain again i mean i think that those would be outlier cases that if we could have conduct that is force that is only capable of causing physical uneasy ness or mild discomfort that's enough to convict under the battery statute and that cannot be squared with the context of how curtis johnson defines the term physical force they use words like furious severe vehement and examples of the crime of violent felony they give murder forcible rape assault with a dangerous weapon that has no connection to force but is capable of causing only mild this comfort or physical an easing us and that's why i think that the reasoning of curtis johnson you know and i recognize that this would be a departure from this this court's decisions interpretating similar definitions of bodily harm for example the definition of bodily harm in minnesota which i think is word for word identical to wisconsin you're the ruling you seek here would be a departure from our precedent in the minnesota right so we'd have to look at assault and so under fifty three assault which is the lowest form of assault which refers to intentionally causing or attempting to cause bodily harm yeah i think that probably why it is that was wisconsin a different than if if the higgs because wisconsin saw the same way in minnesota because wisconsin sets the floor lower in terms of how it defines pain there's no case in minnesota that gives a similar definition of pain i mean you know chris johnson clearly says when it comes to the elements of state law often state law controls right and we just minnesota but that isn't relevant i don't think i think whether you think that throwing your in someone's face that causes a burning sensation is  would not qualify the question is whether force that is only capable of causing physical uneasiness or mild discomfort qualifies in that's the principle of haze they said that that's enough for pain how can that be squared with the context of kurdis morning mr meyer spent a good deal of time revisiting sort of the journey that the koreas johnson took in reaching its destination and i'd like to start by focusing more on the destination that is chris johnson answered the question of what it means to now the appellant's argument really boils down to trying to create various gradations of pain and examining the governess in a pain there isn't and what the wisconsin court did was use the common ordinary meaning of pain they use the dictionary definition of pain every time appellant talks about mouth discomfort or physical and easiness what a panel is talking about is pain as is common ordinarily understood encourages johnson what they look to into finding the terms of the criminal act was the dictionary definition when they defined physical force they said the career criminal act doesn't define physical force so we look at the common ordinary meaning and they cited webster's dictionary that's exactly the technique and protocol that the wisconsin court used here to define pain this court has held on a number of occasions now that where a state statute requires the actual infliction of bodily harm or bodily injury that by definition it satisfies curtis johnson in fact it exceeds the kurdish johnson standard because curtis johnson requires force capable of causing physical pain or injury most recently in this court's winston's winston decision authored by judge callahan and that is just a few months ago eight forty five fed thirty eight seventy six causing injury or pain and that's exactly on all fours with the situation we have with the wisconsin statute very thing that standard that requires that the pain be scale there's not your honor and here i do think context matters if we remember in curtis johnson they were distinguishing a florida battery statute that criminalized the mirror touching that's the context what the curtis johnson court is endeavoring to do is figure out in the context of a battery statu that criminalizes mira's touching do we have physical force they don't paint as adopted in context as a counterbalance to the mirror's touching as this court has explored in these questions to appellant so there is no gradations of pain standard encourages jobson and again in the context of christian outs and demonstrates the use the ordinary common meaning of state of terms in defining statute and so there's no reason to conclude otherwise that the supreme court wouldn't have use and didn't mean pain in its common ordinary meaning that is the dictionary definition now i think each of you have asked questions of appellant about higgs and the actual application of the definition in wisconsin and here too it's in our force with this question is prudent about the fact that when you cause actual pain you have used force capable of causing actual pain and the winston case is a good just as wisconsin does and in each of those opinions this course cited that definition explicitly that it satisfied the force cause of the arab square criminal act and in fact in the case the court compared the missouri standard of pain injury or impairment to the arkansas standard of substantial pain impairment or injury and found that there was no meaningful distinction i think were the words of the court and scott that if you've got a standard like missouri which is on all fours with wisconsin and all material respects under this court's rice precedent that found that the arkansas statute complied that the missouri statute complied and again it is it is no extension and all of the holdings in korea to find that the definition of bodily harm in wisconsin satisfies the force clause it would like again to amplify the opponent's argument depend on attacking the the court would look to the common ordinary definition and that's exactly what the supreme court did in the a c c a context increase johnson i judge kelli drew attention to the decision of the seventh circuit of course the circuit in which the wisconsin wisconsin and the gates case addressed each and every argument raised by a parent here and in fact in the district court case and yates cited in the government's brief each of the cases cited by appellant out of the wisconsin court system with respect to the batter application the battery statute was examined and both the district court and the seventh circuit concluded that there is no application of the pain standard under wisconsin battery that doesn't involve actual pain or injury i'd close your honour's absent any further questions by noting that this court has also held on repeated occasions that the arm for a criminal act and the categorical standard is not an invitation to apply legal imagination to the categorical standard and it's not it doesn't call for fanciful hypotheticals about application of the standard and to the extent of parents brief cite examples that you that have no grounding in the actual application of wisconsin wisconsin court has upheld the conviction under that very low standard i think that's i have two responses your honor most directly i think it's true that there are no wisconsin cases that the government has found that that apply that standard as to whether the standard is lower or not i think the government would respectfully take issue because again what the wisconsin supreme court simply did was use the dictionary definition of pain now there can be gradations of pain and judge how to explore some of them with counsel the supreme all upon either itself or any court to examine physical force in terms of  a repeat question but in your view pain is pain there's a dictionary definition of it it's the word the supreme court you know there's really no more analysis after that as long as a state court uses the common ordinary definition of pain as wisconsin did exactly your honor and that's consistent again with how curtis johnson construed the term physical force in relying on the dictionary definition absent statutory meaning and the government with semantics consistent with how this court construed other state statutes that use painting injury impairment of physical condition and illness to define the injury in bodily harm there isn't any calling for a great day for examining the very fin gradations of pain to to further layer curtis johnson with additional additional requirements curtis johnson gave the answer of what physical force means it means pain or injury there's no need then to extrapolate from the definition of pain and create additional additional levels absent any other further questions from the court the government would rest on its written submissions thank you we don't need legal imagine in imagination in this case and moncrief versus holder the supreme court said because it's a categorical approach you look at the minimum conduct necessary to convict under the statute and you ask whether that minimum conduct qualifies under the relevant federal definition higgs is that case this is literally what hague says they're analyzing was the conviction proper they say quote higgs is actions caused a localized physical act of one well being or physical and using us that at the very least squared with the definition of physical force in curtis johnson if you define pain that lowly it's difficult to imagine what would not qualify a mere a mere touching like in florida wouldn't qualify again other that was the holding of curtis johnson no i don't think so because in curtis johnson the mere touching the offense of contact there was no connection between they didn't say offensive contact that causes a little bit of pain they said the mirror is touching that's nothing more than offensive contact you can clearly do offensive contact with out without causing pain and annoying poke doesn't cause pain but it's offensive contact i was just responding yours to him and it's hard to imagine what would not qualify that wouldn't qualify and that's what curtis johnson said but i think force that's capable of causing at the very least only mild discomfort cannot be squared with the analysis curtis johnson employs to define physical force especially because it says capable of causing physical pain right i mean that makes it even broader there has to be some limits on pain