chief justice and may it please the court since the invalidation of the residual clause in twenty fifteen the only way for a state robbery offense to qualify as an act of violence felony is if it has violent force as using or brandishing displaying or even representing that one has a weapon it only requires carrying but in most state that have armed robbery aggravated robbery offenses that require using displaying threatening a weapon those offenses would qualify because that's a threatened use of force florida juries are instructed every day in florida that although resistance is required no particular degree of assistance is required a victim can resist to any particular and extent and in fact the case law in florida confirms that resistance sufficient for a robbery conviction and a penalty up to fifteen years in the state penitentiary can involve nothing more than the tightening of one's hand momentarily on a dollar bill before releasing it i actually tried that holding since i knew this was this was your this was your most case and i held on to a dollar bill and asked each of my law clerks to try to pull it out of my hand and i was surprised i mean people think oh it tears usually work tears easily if you go like this but if you're really tugging on it i mean it's i'm not saying nobody could do it but but it requires a lot of force more than you might think i don't think your honor that it requires a substantial degree of force as this court defined that in curtis johnson language your friend on the other side stress is capable of causing physical pain or injury and that covers a broader area than some of the other adjectives that were in the same paragraph the the phrase force capable of causing pain or injury has to be understood in context and it is explaining violent force in the context of a violent felony definition the court emphasize the word violent and then the court gave all of these ordinary dictionary definitions of violent or violent which are extreme force vehement furious force so do you think that shoving grabbing and pinching count as physical force aka your honor the determination under cannot be made in a fact and so there's no there's no category of conduct i guess we can say besides stabbing someone in the back directly involved that most conduct has to be viewed in context for instance the court gave the example of a slap to the face in custom and they gave the example of the school use to the arms you have to look beyond the actual category and one of a tap on the shoulder not being sufficient force so can you answer justice alito hypothetic right is a pinch in the ordinary pinch let's not talk about an extraordinary cooling of the ears that a parent's might sometimes do let's talk about just pinch of the short shoulder could be why could a pinch be i think the answer is looking at the other side of the equation from what a substantial degree of force is and your honor mentioned force capable of causing pain or interest and i think is from personal experience if you tap an injured shoulder it could cause injury it's capable of causing physical pain and injury but we said in the normal course of circumstances a tap on the shoulder would not it's not capable of producing injury nor so i'm sorry norway to pinch and that's the quinces so i know you use reasonably expected but is it reasonably expected or just simply people in the normal course that the reason that we have articulated reasonably expected is to contrast with and as your honor mentioned a tat can cause pain or injury if you have an injured shoulder if the victim has some unique susceptibility to pain so that's why it is difficult to talk about categories and you have to look at the circumstances but the circumstances are the normal ones i wonder if you could say a bit more about this reasonable expectation standard because i'm not sure it does all that much that's different from what the government standard does i mean if you take something like grabbing money out of a hand and say could that reasonably be expected to cause pain or injury or maybe some injury maybe a bruise maybe a little scratch maybe a little cut and similarly even a pinch i mean reasonably expected to cause pain sure for a while for a moment so how does your standard really help to distinguish the kinds of cases that you want to distinguish because i think the categorical approach requires you to look at real cases course bruising actual injury right so that would not be a circumstance known to the perpetrator and the test that the court set forth encourages johnson by specifying over and over again that to a degree of force in the court used the word degree four separate times is a test that is focused on the perpetrator not on the victim i mean we all know from a first year of law school that there are a aca is to predict future violence with a gun for people who possess a gun who would be the people that would be willing to pull a trigger and well someone so if there is an incidental injury an accidental injury that no one could have imagined because someone if minimal pain or injury and pinch causes or the injury that comes from your hand being bruised when somebody tries to grab some cash out of it and i guess i was i was confused that you wanted to use the standard reasonably be expected to cause pain or injury because it does seem to me as though a lot of minor activity could could satisfy that standard so that's why we have said number one that whether there is an actual pain or injury in the actual reported cases whether it's been prosecuted by the state has the state prosecuted for no injury or for exceedingly minor injuries in florida they prosecute for no injury so even though it is possible to hypothesize a case where the same conduct might cause injury i mean we think those are outlier cases because the real qualifying physical fourth if you give us your definition yes it's a degree of force that is substantial enough to be reasonably expected to cause pain or injury in most cases rather than an outlier case and in in determining whether the offenses under our statute match that a powerful circumstance is if the conduct has not resulted in any pain or injury in and thirty to forty case in thirty to forty states what is your response to that does that seem does it seem likely that that's what congress was intending to do well there are two parts of that question congress intended to cover robbery in the expansion robbery and additional crimes the way it sought to do that was by writing two different violent felony definitions one was very narrow and circumscribed that the elements plus the other one was quite expansive would sweep in every type of robbery even snatching even robbery pickpocketing theft offenses that require no force whatsoever so your answer your answer is that they thought that robbery was going to be covered by the residual clause that right they wrote language that would've covered it under the residual clause and it did until three years and at this issue did not really helpful for not i'm stuck there too because if congress uses the word robbery we wouldn't normally think that it's ex clued in more than half the states statutes that are defining robbery that just seems like a strike against the statutory reading you're asking us to adopt and and i understand there's a residual clause but congress used the term robbery well and we've said it used it in the ordinary sense at the time of adoption and at the time of adoption it appears that there is justice alito suggested over half the states would have included this kind of conduct well again two answers to that question it used to robbery in the eighty four act and it deleted robbery in the eighty six act at the same time that it continued to enumerate burglary to capture the robberies congress had two different definitions and as to whether forty three states would be knocked out by our definition as we have said in our reply brief and demonstrated in our appendix the government has only matched wor in the statute the word force and the word resistance it has not done what the categorical approach requires which is to take a deep dive into state law how many think how many states do you think will be knocked down because i mean florida seems as though it's of luck because both it can't pick up under armed robbery would it loses under an armed robbery for the reason that you said earlier presumably there are other states in which armed robbery would this clause i would say for the last four or less more or less why is it i have no form of robbery because there are first of all just from my view and i'm not an authority on every state  but for my review there are not many states that have the trifecta florida and let me say what that is it is quite unique in that is explicit in bracing of any degree of resistance number one number two embracing the principle that any degree of force can overcome any degree of resistance and third actual prosecutions for slight force robberies some states embrace the immaterial of the principle there are some states have one or two applications but there are very few states that i have seen in my research that are like florida in having everything and then on top of it there are very few states that would be like florida that also don't have an armed robbery provision that involves use display threat of a weapon we've listed those law and how many states would common law robbery would simple robbery not armed robbery are an aggravated form of robbery being knocked out by your understanding of the structure so again it is hard to give an actual number and we see from the mistakes that were made in the government's appendix that's really a fraught inquiry but what i would suggest is that it's really only a handful maybe six states or less that are like florida in having everything the principles and the applications there are a few others that state the principles broadly but there are new applications and a few others that have slight force and you think that and applying the categorical approach here it's necessary to look to the cases that are prosecuted yet as i look to the process beyond the statute you have to look to  policies and practices that that's what the court said in doing is alvarez to determine if the statute can be or has been applied to nonviolent non generic conduct or in an overbroad way the only way you can know that is to find actual case law even if the statute on its face includes the kind of conduct this statute well first of all the florida statute on its face does not even include resistance that's been judicially implied and that's the fact in some states as well but let's see there's a statute that uses the term resistance or overcoming resistance and force still what the court said encourages johnson is that this court federal courts have to defer to the state interpretation of their elements in our appendix we cited a michigan case that the statute uses the term violence and there is a case in michigan that says speeding is sufficient violence for the statute and that's curtis johnson touching you're at the other side of the spectrum we have common law robbery states that say there are no minimal force applications our state supreme court has never said that the degree of force is immaterial carolina for example and the fourth circuit said that in dr and that's a common law robbery state and they say that qualifies because there are no new broad principles embraced by this court which would suggest slight force can qualify nor are there any applications so under the categorical approach it will be a state by state inquiry but all of the circuit court of appeals know how to do it they've been doing it since tailor and they have to examine each state's law i have exhausted reviewed florida law and i have looked at other states law and i can tell you that not many states are like florida cultural having every let's say we disagree with your understanding of it and we think that if it's clear on the face of a well i've already knocked out i believe at least ten states on in my approach by reporting in our appendix the full language of the staff that the government excerpted out of its own appendix and statutes which make clear on the face of the statute that violence can be contact me or touching any impact so yes that reduces the number but other than that once we are down to force with violence and resistance those are common words that come from the common law that each state has gone in its own direction and in order to properly do that categorical approach under the elements you have to defer to the interpretation of those elements it's a different type of inquiry than for the generic offense determination some generic offense determinations can be made on the face of the statute because the statutory language is plain but as we have shown by case law showing that resistance can be nothing more than  momentary tightening of one's hand that the word resistance does not happen when the council self council in curtis johnson you rely heavily on the general statements of the court but the application of general statements was to something very specific battery in a mere tap on the shoulder and all curtis johnson seemed to hold was that that was excluded so why don't we follow what curtis johnson seemed to do in applying those general statements to the specific statute issue here and why when that then in compas the floor of statue which requires more than say a tap on the shoulder because what the court as you point out it's it's a bit general those statements that language and so what how do we understand what the court meant by that you look at how it applied it and it was to a battery statute and it was a case where the government argued that the mere tap on the shoulder was ok and the court said no that's not enough but all it seemed to carve out was that kind of statute at least as i read page one thirty nine of the curtis johnson opinion seem to very carefully distinguish those two situations your honor i disagree with that because i believe that the standard the court set forth was a violent felony definition the court said that the word violent alone connotes a substantial degree of force and used words like severe or extreme vehement furious to characterize and flesh out the concept of what a substantial degree of force is and the conduct in our case yes it's more than a mere touching but it's not extreme furious severe vienne meant any any of the adjectives the ordinary dictionary terms which which was the definition of violent force the court embraced and read in rejecting the common lo court did not draw a line it would have been a very short opinion if touching is out and everything else is in and we see from castleman four years later that other minor uses of force do not convey the sense sense in the court reinforce that in castleman so i think there's a lot more in the definition of curtis johnson the standard was a substantial degree the court gave adjectives that meet it and th overcome resistance would be physical force or the holding and curtis johnson was what justice kavanagh described battery the touching that is necessary for a battery is not physical force any unwanted touching satisfies common law battery now if we go beyond that you have it's would be necessary to quantify the degree of physical force that's required like how many pounds per square  not five that the majority a majority the majority and to my actually said that substantial is not a difficult term to apply at all when it's being applied to real world conduct and that's what the categorical approach requires we have real cases apply the term substantial to real world peace is in one important factor in our real world cases are prosecutions is whether there was pain or injury in the actual case we  substantial force unless it actually causes pain or injury no i'm not i'm not saying that either and i think we said that in their brief it's that's a significant circumstance like circumstantial evidence there could be victim so you know what is that what is the quintessential robber and what is the quintessential victim as you you know as you just mentioned if you have a very strong victim and a very weak robber an awful lot of force could be applied without a reasonable possibility of causing pain on the other hand in what might be the more typical situation if you a young strong robber who pulls a purse out of the hands of an elderly woman or a briefcase in the hands of an elderly man there's a real chance that that's going to cause pain and maybe serious physical injury so i've no idea how to imagine that the typical robber and the typical victim are these people can you describe them for me i don't think that the florida cases you've studied them all what is the typical victim and what is the typical robber someone that doesn't have any of those unique characteristics that you just described there were not particularly for a zero and anything that would 've been obvious and let me just stress this the encounters in the florida cases took place in a split second they were momentary one handed terror tearing something out of another person's hand with one hand maybe if you use two hands and grab someone by the arm and call at the same time that's a different degree of force but doing it one handed in a momentary encounter like this i think in everyone's common experience judges and juries would be able to say that is not a substantial degree of force that's not like slapping someone in the face that's not like stabbing someone in the back or those type of facts i don't think that's difficult it may be a more difficult determination where at the least culpable conduct in a state involves substantial injury because there was some sort of vulnerability of the victim but that's not florida so that would be a different case but what we know from florida is that any degree of resistance and any degree of mr chief justice and may it please the court for centuries the common law has provided a basis to distinguish violent takings of property from nonviolent games violent takings or robberies we're taking is that involve the use of force sufficient to overcome the victim's resistance that's the element of force that's found in the robbery basic robbery statutes of over forty states including florida is the element of force that congress used in its own definition of robbery in the original ninety four acca and when congress amended b ack two years later it took that element and made it the centerpiece of the new elements clause under petitioners interpretation of the aca however common law robbery would not qualify as an act of predicate in fact petitioner cannot identify a single state whose basic robbery statute whether based on the common law or not would qualify under his interpretation mr lew could i just  ask what you understand the florida cases to be saying so i'll give you a hypo to elucidate that so i'm walking down the street and i'm carrying a handbag and with a strap over my shoulder and as everybody knows the way you carry that is you essentially grab onto the strap so and then some body comes and runs and rests it out of my grasp  does that count under florida law as robbery it depends i think it would a few more facts but i think i think the florida cases do focus just on this issue and if i could if i could illustrate sufficient there the victim had a bag on the shoulder on her shoulder the victim the defendant came around yanked the bag off there was a bit of a struggle because the  victim turned and tried to resist in that fashion so the person that i was actually taking that out because you know i'm holding on to the bag so you're going to need some force to get it but and and that kind of force is used robbery yes ok well then robbery in florida really includes pretty much the full gamut of bad snatch and i don't i don't think so and i'll give you a case that illustrates that  case called r p which is cited in the robinson case that's sort of the seminal case involves someone who grab a camera that was hanging off someone's shoulder and that did not rise to the floor to the level of force necessary for a robbery and the difference between the two cases is the added element of violence is the resistance by the very all i was saying i mean i'm sure you can find me a couple of cases where people walk around with cameras or bags and don't have their hands on them but i'm going to say as every woman who carries around handbags knows that's just the normal way you carry around a handbag so so so that would be the usual case maybe not always case but if it's the usual case of bag snatching did you say fools under the robbery definition but i think what's important to remember about even that case is that there is force on the one hand being applied by the victim which is met by force on the other being applied by the defendant and what that amounts to is a physical struggle over a piece of property but my problem is i mean it's i'm sorry i'm sorry the problem is just a common parlan e the definition that the courts are given in florida is the slightest resistance qualifies as violent force so that if  the victim just merely moves you away in the back i don't think that's the slightest force well but i think what what's important to keep in mind i guess was finished as my answer to justice is that what is inherent in the offense every time in occurs in florida is this violent contest over a piece of property and i think it's natural to conceive of the force necessary to prevail in such a contest as for cable but that's not the words the court has used it said the slightest resistance and the slightest force used to overcome it wildfires robbery and under the categorical approach i thought that we had to eliminate something that was slight well i think it's true that what that that the resistance can be of any degree but i think you have to view to be of any degree well but i think what's key is is the context in which that interaction is occurring when you have force on the one hand being met by force on the other what you have is a fight over the property and i think that is a quite you just pull it away and it doesn't necessarily have to be a very forceful pulling away well this this sort of interaction whereas force is met by force has been understood by the common to the florida supreme court and robinson in one thousand nine hundred seven said that that was merely dicta and in fact pointed to one four intermediate court case that had read that literally to mean any and expressly disapprove that holding that i'm not sure that quite solves the problem though because the statute on its face says not just force or violence or assault but it's his or putting in fear that is sufficient to constitute need whatever whatever we've been talking about with justice kagan is just a sort of my or but i don't read robinson as suggesting force is the only way of establishing robbery under florida or doing anything to eliminate the disjunctive language of or putting in fear of justice course we want to about that in florida there are two ways the cayman robbery one is robbery by force the other is robbery by intimidation and that picks up the putting and fear language you just point in the statute but titian or has not disputed in this entire case that that type of robbery robbery by intimidation or putting in fear satisfied is the i don't care what petitioners challenged and that i'm asking you why isn't that a problem under taylor for the government in this case because the florida courts have construed putting in fear to mean a fear of bodily injury and under fear of force is not the same thing as force debate about why the putting in fear prong satisfies the music the putting in fear prong is always and can only be accomplished by threats of force by exactly by threats are you not on that do we know that's right is there any argument section called baldwin versus state they gave that interpretation bodily harm is the quintessential injury that satisfies the curtis johnson standard and so what threat of such harm is going to be threatened use of force aca and that's why no one has disputed that in this entire case i guess i would like to return to the i guess i'd like to turn to petitioners test and mr lu can i ask before you do that you keep referring to the common law but i had thought that the whole structure of the curtis johnson opinion is to say well we have this common law definition but it's in the context of a statute which is trying to identify violent felonies and in that particular context justice scalia said we're going to ignore the common law definition and instead use an ordinary language definition of what force is and he basically says physical force in the context of a statute that is trying to define violent felonies is violent force substantial force and so forth so why is this common law argument relevant at all well i think it's relevant for a number of reasons first of all curtis johnson did reject a common law definition but the common law definition it rejected was one drawn from a misdemeanor offense kurdistan's didn't call in question that a felony definition of force might fit and this one does fit perfectly you're right that johnson also referenced the ordinary meaning of force i mean didn't reference it the whole argument the whole  decision was based on that and i and that's why i think i would return to what i was saying earlier i think if you took someone off the everyday in everyday english and and explain to them what happens in these cases where someone resist that resistance is physically overpowered by someone else i think violence is actually the word a lot of people would use it also is the word the common law is used for centuries it's the it's the word violence that's found in the statutes of dozens of states and it's the word that congress used wanted an act to the basic robbery definition in the eighty four act it regarded this type of robbery congress regarded this type of robbery common law robbery as one of the most violent crime one of the most common violent street crimes that exists and so i think this ordinary approach this ordinary language approach how we would use violence and in ordinary english actually cuts against the just the ordinary english view is something like look when i'm walking down the street and somebody puts a gun in the air and says give me your money that i know i understand to be a violent offense but when i'm walking down the street and somebody grabs my handbag i'm not happy about that but it's it just doesn't have that violent aspect of it in ordinary language that i think you know beating somebody up does putting a gun in their face does and this is a state that defines robbery so broadly that you tell me it basically includes every backs now i guess i guess what i would say to that is whether whether you know what i would say is the key point is what congress and i think all the indications are that congress regarded this as vile as well what is that this that congress thought i mean in all of these cases we have to look to whether the state has to find its crime or more broadly then well basic offense but the idea that florida here is somehow an outlier among common law jurisdictions is just not correct the florida case law trac exactly the sort of case law we found in the common law treatises dating back to blackstone and that was the notion of violence that congress had in mind when it wrote the definition of robbery in the eighty four act two years later congress was intent was to expand the scope clause it wasn't it wasn't depending on the residual clause to do the work of the elements clause we know that from both the text and the history of the eighty four act and the eighty six act because starting with the tax congress took the very key element in its robbery definition force and made that the centerpiece of the elements of laws but curtis johnson says substantial degree of force is justice kagan points out and how are we supposed to deal with that language in the kurdish johnson opinion if we're trying to follow curtis johnson strictly but just as kavanagh the force used the type of force involved in a florida robbery or any common law robbery is substantial two ways curtis johnson itself found relevant the first is this kind of force is force capable of causing physical pain or injury that's what curtis johnson meant by substantial the two sentences one follows right after the other the couldn't force capable of causing physical pain or injury i mean a touch is capable of cause and physical pain or injury when done in the wrong context i'm standing at the top of the stairs somebody startles me by putting his hand on my shoulder i fall down the stairs i break my leg that's capable of causing physical pain an injury just caused physical pain and injury so why doesn't your tast why isn't it defeated even by the holding of curtis johnson that particular application of curtis johnson well we we do piers there's common ground here we we absolutely agree that whether something is violent has to be evaluated in the context and a tap on the shoulder i think if you pulled someone out history and said it is a tap on the shoulder without more violent that person would say no but as i was saying if you describe to them the situations that are inherent in a ford a robbery offense a physical contest where two people are fighting over a piece of property that is quintessentially violent when i saw you you keep mentioning the word fight but the statute just says least resistance met by the least force that's not a fight in my dictionary the fact that somebody has something pulls back and you just walk away with it that snot substantial force oh it is because whatever the resistance the form the resistance of the victim is providing it's being physically overpowered by the defendant and with how to search to find is that a substantial force even as people bill of producing injury if the example that the chief used an elderly victim just simply can be overcome with  virtually no force whatsoever well i don't i don't think that it's not capable of causing injury even in an elderly person again and again i had the fortune of being measured in some quantitative respect like foot pounds or force meters their arm and keep walking as i read the florida statute that would cover that as well now force directed by the victim or resistance by the victim but resistance by someone else in the course of the taking pickpockets i'm sorry thief walks over pickpockets the victim turns around and starts to walk away and a passer by grabs hold of his arm and he pulls it away and keeps walking no  has to come from the victim and it's over the way i read the statute says when in the course of the ticking there is a use of force violence a soldier putting in fear in the because what the aca cares about is the use of force without regard to who it's directed against what actually cares about curtis johnson said we have to determine meeting in context the wanted to keep off the street people who are likely to use a gun and have brought the broadest level is somebody who he does in personally with with some degree of resistance is that person you look at then say well that person is likely to use a gun well congress thought so we know that because congress adopted this very definition of robber in the eighty four act robbery common law robbery was an original acca predicate and in doing so congress described these types of robberies as the most common robbery and making it the basis of the elements clause by contrast there was a lot more doubt about whether the aca the new aca without a specific reference the burglar would have covered burglary this court recognized that on pages five eighty four to five eighty nine taylor there was a concern that barry would be inadvertently left out but there was there could be no such concern with robbery because congress did the most straightforward thing it could do to ensure that the new act covered robbery and not just robbery but also things like rape and murder what it did was it took that element that's guaranteeing that all the eighty four cover robbery is what would come along with it and made that the basis such that other crimes to rape murder  c what would come in as well so they're just simply was no need for congress to renew moray robbery and the indications we have from the text and the history are that congress thought the old acco was working perfectly well senator specter got up and said well we want to include everything that was including the old one and we want to expand it and this court in taylor noted the same thing it said the consensus at the time was the only issue before us is how to expand it and this  that her understanding of what curtis johnson requires would have a minimal effect on the robbery statutes of the states if she counting the states correctly no and if you look at our petition appendix we've separated the states to the states basic robbery statutes into three basic categories the biggest category over forty states have adopted the common law standard the same standard as florida there's no indication that florida is an outlier all of those states would be knocked out that leaves three or four states that have a notion of force that is broader than the common law that is it would cover things like sudden snatching this person mean everything that's knocked out or only the basic robbery offenses knocked out but that leaves aggravated robbery offenses i say only the basic robbery is knocked out but i think that it's the right focus because we know from the eighty four act congress was concerned about keeping in basic robbery you've look at the definition of eighty four act it's not armed robbery it's aggravated robbery it's simple common all robbery let's put that aside for the moment who would disagree with you how many states have a robbery statute that would be left under aca under your posing as a trip to asian a basic robbery statute basic or aggravated basic or aggravated it's we don't have the exact number a part of that is because petitioners unwilling to commit to whether some of those aggravated states actually qualify so the ag or the aggravated factor that petitioner points to is an element in the offense that requires a showing of actual injury a causation of injury as an element the petitioner on page eight his reply brief isn't even willing to say whether those offenses qualified if they did qualify then how many states are factors i don't have an exact number i think it would be maybe two dozen states that would qualify but i just want to reiterate i think that is the wrong lens to look at this issue because congress when it wrote a basic robbery definition to eighty four and then wanted to expand the aca didn't didn't think they expanded aca was then going to cut back and limit the coverage of the aca to only a small subset of robberies that qualified as an arm problem i have with hopefully can help me with this is you keep coming back to the belief that congress wished to or intended to keep income and wall robbery in its simple form but curtis johnson expressly rejects the common law definition of force no it was directed at the common law definition of what hours they came from misdemeanor offense what was key in curtis johnson was that the key term being defined was violent felony so it wasn't it wasn't quite the same one that we have today and that was the common law definition of robbery robbery was a misdemeanor no robbery but often right robert robbery was a felony at common law often it was but the force required was very minimal a common law and the majority expressly rejects that in curtis johnson as sufficient to satisfy the statute now maybe that's wrong maybe you want to revisit curtis johnson i've heard a lot of arguments today that seem along those lines but what do we do if we go well it's not true that curtis johnson rejected this definition of force the definition of force that curtis john and rejected was one that could be satisfied by the nearest touching and common which league knowledge was the common law definition was the common law definition that came from the misdemeanor offense of battery in law robbery which as a felony definition of force force overcoming resistance can not be satisfied by the nearest thing we know that because not only have to the treatises say so but for another in particular has said so in the walker case which involved a mere touching where someone took understood in context in the context of a physical struggle i think people would call that for substantial or violent this really has sounds like we're overruling johnson and reintroducing into the approved this whole notion of what's the normal situation i'm i guess if i'm looking at something in a categorical way i'm see little force is not will acknowledge that if you measured the force in some of these cases on a quantitative basis we're not going to get to a lot of newtons or foot pounds or foot meat and you're not going to even get a payment so for curtis johnson made it clear that that wasn't the right inquiry it's a qualit e assessment it was the words capable of causing injury were a gloss on the word violent and i go back to what i said earlier this sort of interaction and a physical struggle between two people over a piece of property has been regarded as a violent in the common law by congress by over forty states for hundreds for a very long time isn't the standard for sufficient to overcome resistance a qualification that's a quantification is the amount of force necessary to overcome resistance if you don't adopt to that then i do think you have to get the foot pounds or something like that well now that's sort of i think i'm agreeing with you more than disagreeing with justice alito i don't think we should measure force in terms of some statistical or or or you know exact agree i think i think the force used has to be understood in context and i think th the sort of force that is necessary to overcome someone resistance is going to be more than a mere touching and is the sort is the type of violence that has been regarded as a violent by the common law and even more relevant  problem i'm having in a nutshell is you keep on referring to this as a physical struggle over property but at the same time you tell me that if somebody snatches a bag off my shoulder it's it counts as robert ray under florida law and to me that is not a physical struggle over property and if the state defines its robbery statute that broadly so as to include you know theft of property but that are not done with physical contest station physical struggle then the state is made a choice and justice kagan i think we just disagree about what's covered by state law that because i don't think a simple person or pickpocketing those things were the very reason what was the very reason for robinson and robinson with ordinary workers the very reason for it was to clarify that those sorts of things are punished as fast as larceny as sudden snap i go back to what your answers to my first questions were and carrying my bag with my hand over the strap and you say when somebody rests the bag from me that's that that's robbery and i say that's every bag snatch in america save a few well but i think only in a case where there is actual victim resistance physical resistance to the taking in a case where that's absent like the a j case discussed in robinson itself that's not going to rise to the level of a robbery that's going to be prosecuted if at all only as a fact or a larceny and so i think what the question before this court boils down to is whether it should recognize a line between violent and i'm taking the counsel can i say one thing on curtis johnson there which is it says violent fight if it stopped there i think you might have an issue but then it says that is force capable of causing physical pain or injury to another person incapable of seems to me much different from what we usually is just as kagan would say think of as violent force so maybe maybe there's something in curtis johnson itself we talk a lot about it but in that one sense it's a violent force and that's something else that seems  intention with violent force certainly answer i think the capable language is a gloss on violence i think it is an ordinary english way of translating of spelling out what  violent means i think whether you look at violent or the capable language common law robbery is satisfied that this nation thank you council will bring you a four minutes remaining at common law no physical resistance was even required for robbery the classic example from blackstone is pulling a watch chain and snapping a watch off of someone the person doesn't have to do anything so under the government's view here that would constitute violent force where there wasn't even any it's a fiction is the resistance was implied in the watch chain a common law common law resistance w broad and that was the intent in eighty four but let me just say florida robbery would not even meet the one nine hundred eighty four definition because florida's expanded the temporal scope of robbery far beyond the common law so that there are so florida robbery today is essentially shoplifting in pickpocketing plus resisting apprehension in some way now to include these slight force robberies as a predicate for a and enhanced moment that would start it fifteen years imprisonment in authorize the penalty to life is really inconsistent with congress's purpose of identifying the worst of the worst offenders exactly those offenders who would be likely not only to possess a gun but kill someone with a gun and there is no predictive value from using slight force to snap a bag or poll a dollar bill or even just pull one's arm away from the security guard it would be predictive of the willingness to use violent force if congress finds that the result in this case is counter intuitive not weighted intended and it really wants light force robberies to qualify as violent felonies sufficient to support that enhanced moment it's in congress its hands they can easily rewrite this statute there were two definitions originally all robberies came within the residual clause for many many years this is only become a after the elimination of the residual clause in congress has a multiple resource residual clause referred to quote capable of causing i'm sorry  serious risk of physical injury so how uncommon come within that it it just by the possibility of a confrontation afterwards which was the way which was the standard this court used for the residual clause crimes which swept in pickpocketing in all these events i'm sorry you think that you think that common law robbery involves a serious risk of physical injury no i mean how would it fall within the residual clause which is what you just said i'm i'm i'm not saying that your honor i'm saying that as applied as the residual clause was a apply because the language was so capacious and the standard was unclear and it focused on a hypothetical possible confrontation one can hypothesize a confrontation after pickpocket after shoplifting and ultimately the residual clause swept in everything and that's why i believe it was invalidated by this court but now this court cannot compensate for the loss of the residual clause by reading the elements cause beyond its terms and one very important term is has as an element congress dictated the categorical approach if it