good morning your honors may please the court issue presented here is whether a prior conviction for resisting arrest under maryland law has as an element the use of violent force against another person as necessary to qualify it as a crime of violence under section two  one point two of the guidelines we urge the court to find that it does not have an element of last year the maryland court of appeals stated in necklace the force that is required to find a defendant guilty of resisting arrest is the same as the offense of physical contact that is required to find a defendant guilty of the battery variety of second degree assault and as the supreme court held and johnson offensive physical contact does not constitute violent force the government asked this court to set aside the statement of necklace and to look at the underlying conduct of resisting arrest in the land and find that violent force is in fact necessary but doing so would run afoul of johnson and which the court said that federal courts are bound by the state supreme court's interpretation of state law including its determination of the elements it would also conflict with the categorical approaches focus on the elements and not the underlying content conduct of a prior conviction so are you saying that there is an absolute  in looking at any conduct is an aid to interpret ing helm of the state of no i'm not saying that there is an absolute bar i'm saying that when there is a clear pronouncement by the highest court of the state that you do not need to look any further to illuminate the elements if it was unclear that would be a different situation would you agree that in looking at the elements we don't need to look at whether force is required but whether there is a threaten becomes circular and my question is is resisting arrest is it over arrest by an officer more violent but more threatening with personal injury than burglary where the burglar breaks enters with style hoping nobody is at home but many encounters somebody i certainly do not think it's more threatening of injury than burglary but also the question is one which one you think is more susceptible greater threat to the use of force and cause of pain well i think there's so separate that it's hard to compare a springboard present all the time they find burglary to be a purely low threshold well burglary actually does not qualify as a of violence or personal injury or pain is greater in resisting arrest then in berkeley you're looking at the usual the usual resisting arrest case in the usual berkeley case i think the threat is greater in burglary i think th violent confrontation of somebody entering your time resisting arrest is resisting a physical apprehension yes it is it just need not be violent or violent is the threatened u threatening of pain or personal injury to other possibility how about a scape from custody is that a threat is that more of a greater risk to violence than resisting arrest i believe it is and under the residual clause i do think that escape is a different offense and if we were looking at this another social class i think this is about an append query on the analysis to determine what the risk of violence is as defined in johnson and johnson says violent means the threat to cause pain or personal injury to another the question here is not though if there is a risk of physical injury the question is is there an element of violent doesn't resist have to be physical it does not have to be physical but actually under under maryland law it has to be forceful now forceful could be in one example that was cited in the briefs it could be pulling your arms and your chest to prevent the officer f per now which the court of appeals decided in two thousand and three the resistance consisted of a man who was it was on the ground who had to be pulled out from under a truck that he was hiding by officers trying to arrest him and the resistance consisted of him pushing up off the ground while their officers are trying to arrest him and they said that resistance consisted of him pushing up which caused the officers to have to push him back down to get his arms behind which are you know you're trying to  question of when should a categorical approach be applied for a yes and then the other set of cases is doing yourself or as in james and that address is a very different set of realistic probability that was state would applied statute outside the generic of the common understanding of a crime and then james goes farther in it says we have to look at the ordinary case you can't just take an outlier or a hypothetical or something on the periphery he says you've got to go to the center of gravity in this whole thing in looking how it's applied and you have to look at the ordinary case and james it doesn't just make the point one time it makes the point and then the court rejects that out and says no you don't have to prove that all cases present the risks and then it goes again to say it goes and says ok we are applying  alvarez there has to be a realistic probability here that the state courts would apply it in this fashion and then it starts talking about look at the ordinary case look at the center of gravity under the categorical approach not just and it specifically you cannot james there's one can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury but says you can't do that you've got to go to the center of gravity of the offense what does it commonly mean what does it generally it generally applied it's a practical inquiry and why wouldn't that be the governing standard here we all agree the categorical approach is the one to apply but  it's all in doing us alvarez in james's how do you apply or how do you apply it and you've got the supreme court is saying to us you've got to be practical you've got to go to the center of gravity you've got to look at the ordinary case and they don't just say it once they say it three different times so why wouldn't that approach apply here and why isn't ordinary case one where violent force is directed generally though not always at the arresting officer and when it's alvarez the court was looking at california attempted theft and they were comparing it to the generic theft offense and in that case they were looking at the generic because they were looking at the end numerate an enumerated offense in which they had to find the generic definition the defendant in that case argued that the california version of the statute that he violated was much broader than the generic version because it allowed a person to be convicted for the natural and probable consequences of his actions which the defendant argued was broader than the generic crime the court responded that if you were trying to make the argument  art but you can certainly find out what the what the general understanding of resisting arrest is you can certainly find out what the common law roots of it all are you can certainly find out how the term mean and how the crime and what the crime means in in most states there's a common core meaning is there any indication that james wouldn't would want us to do o an approach to the residual causing of course well i think that decision lies with the sentencing commission which strapped it to well one point two and specifically pointed out in the murder defenses that they believe should always qualify and then said otherwise i mean for a crime that has as an element the use of force which is why isn't the ordinary case and it's been in case after case after case courts are looking at conduct and not just our court which is since a number of cases looked at conduct in an attempt to find the elements in an attempt to locate how the crime applies in the ordinary case but the supreme court as well is looking in  to see how it's actually applied you know actually not some big theoretical discussion now why would we vary that approach here there's no indication that we  taylor said and sheppard said that in order to have uniformity you need to find the generic offense to see if it is the type of offense that congress meant to define or the sense of commission meant to define question yes or oh there you a police officer is one of the few people in our society and actually put their hands on you as judges we can't do that we can't arrest anyone esle special police powers and normally police officers with weapons are sometimes baton mace badges of authority in that sense and to resist that force of a forty that's the element in the threat of violence back to judge well this is question i think is tell me why is not a core of the prime situation where a person is resisting that force someone who's armed with threat it can be the threat but of this group violence ok's to go back and cart or in this this court looked at assault and battery on a police officer assault and battery which is certainly you would think more firm of lee aggressive and violent than resisting arrest and this court found that it was not a crime of violence under the force clause of the curfew enter announcement because police officers are trained individuals they're not they were described as not being powder kegs so that they were they were able to diffuse the considerably less than violent force involved actually carthon did it right but not because it looked at underlying conduct because it cited a virginia supreme court case which said battery is completed by any intentional touching and it took that element at its base any intentional touching was enough and because of that it was not a crime of violence they didn't actually do a survey of all of virginia assault and battery on a police officer or hurt they were over terry says that were looked at which showed that it was a plot outside of a generic understanding to nonviolent conduct certainly but that was not necessary to the well you can say it was necessary of certainly it is a great deal of persuasiveness to the analysis to actually look at the conduct as cost on did properly and rightly yes and to show situations where there were a number of instances where the a b p was applied to perfectly innocuous situations but i don't see we have that here well in virginia there happened to be published cases that were readily accessible and yes and it's significant that's why that's why i call for is right because in virginia there were a number of published cases that indicated it was applied to a nonviolent conduct but here you have a different situation you have resisting arrest which is a crime with long common law roots going back to the eighteenth if the violent origins of the crime  made clear even in britain in the english cases in the eighteenth if those common law routes were carried forward in american law and american common law which were eventually embodied by statute and the model penal code reflects this understanding of this particular offense resisting arrest as being the whole purpose of it being simply to protect police officers from serious personal injury and harm that's the definition of it's not supposed to metastasize to all kinds of nonviolent things it was put in for a particular purpose to distinguish it lesser things live a lie an obstruction and everything has one discrete object well that the maryland the common law roots of resisting arrest are actually not in the officer that the origins were that it was in the body of offenses that were hindering obstructing a law enforcement officer would have been something completely inactive it could have been just telling the officer that the person ran this way when they ran that way that would be hindering a law enforcement officer it's in the same family of offenses and a nicholas this court said i mean sorry if the maryland court of appeals said that mere flight was not enough some force was necessary the same court said only minimal force necessary it was distinguished from the lesser from the hindering cases only because mere flight was not enough you refused to recognize that tensional injury and potential pain it would because force in the usa it because they notice even though that structure also had another crime which is resisting with physical force the supreme court says just lean in a vehicle from an officer can lead to violence like burglary can lead to violence like escape can lead to violence and i suggest to you lose a sting of physical arrest those judge gregory pointed out an officer who's armed and try will take  somebody and when you resist the basic goal arrest of a person your conduct has to be addressed in the physical effort of the officer the physical force we are in that's the force is not necessary it's the threat even the threat of force while it's at the threat of actually personal injury or harm but it's not necessary to the conviction the point is that many in fact every even if you look at every single case under maryland law and found violent conduct and every single want it still does not matter the key is the camp said the key is the elements not the facts we need to know what was minimally sufficient to support a conviction so even if there is one case that never made it up to a published under station but see you keep imposing the standard that works has to be an element and i'm suggesting new that resisting inherently threatens force it doesn't necessarily implicate force and this were all the definitions we have is that right mr forrest even in johnson where they talked about violent force it was the threat the capability of causing pain of personal injury i think likes i think psychs the reason psychs actually which was the philine in a vehicle from law enforcement side specifically said that there was not an element of force even though there was a significant risk of injury and so they're not that's that's but that doesn't help you at all i think it because you repeat arguing that the element has to be the exercise of force and i'm suggesting to you the element far under the provision the element has to be the threat of force just as extortion burglary and the other ones that are in the list the second degree assault under maryland law involve a threat of physical force no according to this touching no matter how slight same as in johnson would not an assault on a police officer involved a threat of violent force if judge anywhere is right about resisting arrest it my don't see the difference between resisting arrest of a law enforcement officer under maryland law and reason and assault on a law enforcement officer under maryland law if what turns what answers the question is whether there's a threat of force i don't see how there can not be a threat of force against the law enforcement officer when you assault of law enforcement officer any differently from the threat of force if judge where's right when it comes to resisting the arrest affected by a law enforcement but as your earlier answer suggested we held clearly and out several times that second degree assault under maryland law is not categorically a crime use of violent force against another they specifically said that under the force clause of the a c c a lien from an officer in a vehicle did not constitute a violent felony it only fit it did not fit under an enumerated offense either it only fit under the residual clause and they went through which is the same clause the exact same language in sykes that was that indiana philine from a same language in the residual clause and by johnson it's a threat in the use of personal injury the violence and threat and use of personal injury no they're element which is what we're looking at here the enumerated offenses and the residual clause and they said that the flame of an officer in a vehicle did not satisfy the force clause that didn't have an element of force you can fully without exerting any force it didn't satisfy it was not a numerate offense it only fit under the residual clause because of the risk of physical injury to another big because based on statistics it was actually a greater risk that somebody would get hurt or killed than even bar burglary or arson so we contend that resisting arrest no matter what you may feel about it in the other context it does not fit in the fourth class context because it does not have as an element violent or of but the crime is call williams case they talk the one word that keeps appearing over and over is force force force force and when you look at the name of the crime is resisting what kind of  kind of force are you resisting with a gentle tap on the shoulder i mean you have to understand what goes on here if somebody is is using force you have to use force maryland opinions make that clear and you have to resist and this isn't a game of acts we play nice when you when you when you think of resistance by force it's got to be violent force and the last vast majority of cases bear that out my time's up to answer that briefly your the title of the offense i mean assault and battery on a police officer also has a title which invokes you know images of violence but no that's you've put it you have to put it together in context and in the context here is a sinner ass just like johnson the battery  you know violent sounding offense but onsen was concerned with a little slight touchings and not having those count as crimes of violence this is is is many miles away from that it's actually we we propose that it's not many miles away because the any intentional touching as in several the cases that are side in the briefs clinging on to something pulling your arms and yourself or even seen struggling to get away from it all is resisting it's clear that there has to be a use of force and it's clear that the and that when you actually looked behind just the title in the language any intentional touching was enough and in our case any intentional touching is it not and we contend that that may be radically not but why a cell rosen james said we're not going to pursue this the maryland court of appeals does not suit them as a far cry from each other it considers those offenses as having very much overlapping elements which is why in most of the cases actually when people have overlapping moments you know it helps you know the most this because we're looking at the crime of resisting arrest right and the good morning your honor may it please the court in two thousand and twelve the maryland court of special appeals took great pains to narrow the boundaries of maryland's resisting arrest offense and one of the really key phrases in the rich opinion which this court is well aware of is that we're the resisting arrest offense to be broad and allow in all sorts of contact between defendants and the police officers who are attempting to apprehend them that could lead to grave abuse of that statute and it was the rich retorts from attempt to narrow the parameters of resisting arrest in order to prevent just that kind of grave abuse and addition the rich court i was attempting to bring maryland's resisting arrest that you can wind with not only the model penal code but also the resisting arrest the resisting arrest that is characterized by the rich or requires the use of violent force against a person of another whether that be a police officer or in the unusual circumstance bystander who is attempting to assist law enforcement well then you counsel didn't rich acknowledge though on page ten seventy seven in discussing the necklace case that there were circumstances where the force required for resisting arrest would be even less than second degree assault in maryland but said we are not required to comment on that here so the rich court was acknowledging that resisting arrest did not require even the same degree of orse as second degree assault in maryland did  officer a jury must find that quote a person may not a person must have caused intentionally caused physical injury to another if the person knows or has reason to know that the other is a law enforcement officer engaged in the performance of his official duties and so it's quite possible that one could use violent force or the threat of violent force against a peace officer but not both intentionally the mens rea is important here judge keenan and also cause physical injury no extinct that's a good point you're making and i didn't appreciate that distinction but let's let's turn then to nicholas and the fact that nicholas plainly doesn't address the assault on a police officer that talks about the battery pariah d of second degree assault and says that the force is required to find a defendant guilty of resisting arrest is the same as the sense of physical contact that is required to bind a defendant guilty of the battery variety of second degree of saul that's the highest court of the state so what does it matter if with all due respect what rich said it behind his court of maryland as recently as two thousand twelve last year said that it's the same well and if i may your honor i'd like to slide from your prior question into this but i should about nicholas well i think that the core of the concern here because nicholas is and we've got to look at the highest court of the state don't we absolutely honor and my point in terms of moving back to the park question which is to say that it's opposing counsel's contention that second degree assaults a force requirement t of force required to commit maryland second degree assault is equal to and identical to the force requirement under resisting arrest which of course i disagree with but either way whether this court order adopted a defense counsel's position or  position surely the force cannot be any less than the force required to commit murder and second by the side talking about the language and writ in nicholas excuse me the highest court of maryland has spoken why don't we have all of that well for several reasons your honor one and this is the most important thing about the nicholas decision is that the nicholas court was looking at an entirely different question what the nicholas court was looking at was the possibility that an individual in the course of a episode of resisting arrest i wonder more officers might not only be charged with resisting arrest and convicted of that offense which by the way carries a maximum penalty of three years but also be charged with potentially multiple offenses of second degree assault arising from the exactly the same conduct and the nicholas court cites to another more recent decisions of the maryland courts of appeals to prior maryland precedent in which defendants were actually charged with multiple counts arising from the same episode of conduct and receive sentences excess of three years for example in cooper i defended was sentenced to a ten year consecutive sentence of imprisonment for a second degree assault that occurred at the same time as and was in fact the same conduct as the resisting arrest so that was the primary concern of the court and nicholas was to foreclose any possibility that a defendant could receive for example a ten year sentence for something that really was plainly resisting arrest well sure and so i think the the best way to answer that is to look at what the recording rich the language that the rich court quotes from the model penal code and what the model penal code says is that the effect of this language is to exempt from criminal liability nonviolent refusal to scimitar arrest and such minor forms of resistance as running from a policeman or trying to shake free from his grasp and so what we're talking about here is any conduct any resistance conduct that exceeds fleeing clearly fleeing doesn't meet resistance but also must exceed minor physical contact including trying to shake free from an officer's grasp so if you're just trying to shake free fleeing that doesn't meet the standard has to be more than that that's it that's not violent force that would mean there has to be some force exercise there's a matter of resistance and the supreme court is saying this is supposed to be a practical inquiry when you when you look at the ordinary cases and what's really going on for a long span of years for decades you get situations like about positive force unleashed in most cases not always but at the arresting officer and there's not only fighting pushing hitting kicking biting to the extent that the o straight edge razor against the officer another is slashing the officer with a knife another in this case is it the predicate offense in this case was this but we don't examine that on the categor approach but there are other published cases where defendants are driving vehicles in attempt to rerun over an arresting officer punching repeatedly in the head stabbing with a ballpoint pen kicking in the growing stomach and chest sticking with a pin at the back of the officers badge one case after another after a no where we're not talking about me or flight and we're not talking about passive resistance we're talking about that active use of very injurious and harmful force and the supreme court says this is a practical inquiry this is a realistic inquiry and of course across the land or going to treat this litany of violence against police officers with indifference we risk undermining i think the respect that ought to go with an officer a policeman make mistakes yes they do and if they do you sue them for an application of excessive force under graham the connor but there's no indication in these cases that the officers were were exercising of force over and beyond their lawful authority to effect an arrest that's exactly right actually it's in but here's the thing we're not talking about the difference between a show of any really strong shove this goes back to johnson and justice pryor and johnson is contrast thing violent force which by the way is not a technical word he also uses the phrase it's strong physical force force causing capable of causing pain or physical injury to another or contrasting that kind of force we the most minor most incidental on want to touch it and that's the key here is that nobody would conceive of the fact that a maryland conviction for resisting arrest could stand based on an individual walking up to a police officer think do you think about looking at president of vailable just as in this question that that necessarily include every type of case that stands as a conviction under those elements any defendant your honor who steps into any maryland trial court and is charged with the offense of resisting arrest has at his or her disposal the rich opinion and so to the extent a but but i don't know mary maybe maryland different than every other jurisdiction in the universe that i know of but don't people plea bargain and don't people agree to plead guilty to something some jurisdictions don't even require a resale of the bags that the defendant has to agree to i'm just not sure what the price is in maryland but the person did something but they don't want that felony on their record so their lawyer and the prosecutor agreed to what they'll be charged with and what the sentence will be and so they may will then i'm just saying isn't that a flaw in the system if we're going to look at how people stand convicted of crimes well judge said the unfortunate truth is that there are defendants and especially in misdemeanor  that is what i what i describe a plea bargain that doesn't exist no it happens every day and it happens hundreds of times a day in maryland but you know it's possible it's unfortunately possible that a defendant could plead guilty to an offense despite the fact that with a deadly weapon on a police officer and he stands convicted of resisting arrest and maybe maybe that would be such a bad deal that the lawyer maybe the lawyer knows all the law and he does that but my point is doesn't that just point out you don't you think that points out any flaw in the system where we look at application of elements rather than the elements themselves in trying to decide what the case is or what the mainstream is because  i may be wrong about this but it seems to me there is a skew in that universe and those cases it even think the judge said i think we'd be standing on very different ground if we were in a circumstance in which there were fifty opinions from the maryland courts of appeals over the  i'm just asking about the steel in the universe if you look if you just if you just look at reported opinions isn't that askew all of our cases every every crime in the fourth circuit the smartest convicted of that crime doesn't come to us and i comes to us we don't have published opinions that's precedent i'm just wondering seems to be there's just a scale that's not your fault it's not the fault of what is it about why we use the notion of a generic crime and the supreme court has  true we have to look at the state line that they take it out of the heartland but there's no evidence based on the cases the reported cases that we have that just a judge will consider just reciting a few of them there's no suggestion that that takes it out of the heartland of the generic crime of resisting arrest as defined by the model you know about what not only is there no suggestion but we also have over sixty years of jurisprudence from the maryland courts none of which supports opposing counsel's position that you ma anywhere in the rich opinion although the word force appeared about twenty three times right well the rich opinion i said that's incorrect surely there must be something us i know i'm sliding uphill here but the the rich court you know of course they refer to the forceful and violent character of the conduct undergoing the resisting arrest charge but let's get back to this jury instruction issue violent when discussing that resisting arrest charge at a specific location is forceful and violent character of the conduct undergirding the resisting arrest charge or the word violent does not appear directly next to the word force but with respect to the jury instruction issue judgeships you're correct in characterizing the maryland resisting arrest jury instructions but we're in a context here where the federal courts including this court are always in the position of overlaying a federal definition over  look at the elements all lee we look at the elements and the jury instructions when i drive cases that's what these drugs are those were with respect to the elements of the offense and you say what judge davis is correct on the elements of the maryland offense decant doesn't change the landscape with respect to prior supreme court opinions that flesh out how and when this court may look to state court jurisprudence to determine a  state crimes elements in fact state camp specifically said says nothing about overruling johnson or any other prior opinion on that point what de camp is talking about there is simply reserving the question they can't preserves that question we don't know but talk about apply approach if you look at the elements of the state offense right in the end we are in this case the categorical approach that's your position correct that is my position yes all right and so we look to the elements psychs in that case the supreme court was looking to determine whether a fleeing offense could meet the meet the federal definition under the residual clause of conduct that was presenting a substantial risk of physical injury to another but those words substantial risk of physical injury to another had absolutely no anchor they didn't they weren't included in the state court definition of the elements of the fleeing offense but nonetheless the and the court can cite said we can look to we can overlay that federal definition on the state courts description of the elements of the crime to determine whether it meets that federal standard and that's exactly what i'm saying that this court should do that the fact that the word violent force or the words violent force doesn't appear in the maryland resisting arrest jury instructions or in the elements of a crime doesn't mean that this court is somehow precluded if you're  precluded from looking at conduct and you've got to just have this rare element barebone delma you you're moving federal sentencing up to an ever more abstract level not in other words no one that you're precluded from looking at what is actually going on but if you say all right we've got to take the abstract elements and that's we're moving federal sentencing so far from reality that and this and the whole sentencing proceeding is something this supposed to be grounded in a certain reality now of the day camps and the categorical approach for good bargain but you go a double removed from reality when you say ok in addition to the categorical approach we're going to also confine ourselves to bare elements even when the conduct shows the ordinary case to be one of active resistance positive violence and we're also going to  say that we we can't look at that we can't look at the fact that this is resistance that the force is used in the context and in the purposes of resistance and if we're precluded from doing that we're taking the whole sentencing function and we're taking it of a double room move from reality and i always thought that won't bangs it was supposed to be very individualized and one of the things it was supposed to be grounded in actual practical real life of facts was a sentencing hearing and we're moving it very very far away from that well that's right i be can i ask you one case that i thought of that i was sure how you would what you would whether you would regard that as an appropriate predicate here and that is supposed in going to a rest an individual the individual spit in the eye of the police officer  or he could be coming out of the car i mean the police officer and spitting at him well you know but he's not violent is that right well you know your honor my recollection is that  there's a for there's a variety of opinion out there both in the federal courts and the state courts about whether spitting constitutes force because it's an xpect aeration onto another individual and i know a number of these cases appear in the in the prison cont the most innocent conduct that would be criminalized by the maryland statute is pushing or shoving someone away from you in order to evade apprehension and you come to that because there is  i'm i'm looking at the body of marilyn precedent on this which you're trying to federalize maryland law well well i would say that the case of williams this recent case is there right there on the edge of centrally the most innocent conduct and that's a case where a bystander tackled  defendant took him to the ground and then the defendant pushed off tried to push off the bystander who took him to the ground before the officers arrived they struggled on the ground for approximately a minute a minute and a half that if it was tasered and then taken into why do you think it i think that based on the rich court's survey of not only the model penal code but also the statutory constructions of resisting arrest and many other jurisdictions plus their survey of all maryland precedent and you look at all of that collectively the least conduct that has ever been criminalized by the maryland courts in the form of resisting arrest is a physical struggle a physical shoving  i'm doing i'm doing my best judgment can i get what i would say is this that if pulling away pulling away is not resisting arrest then the least form of resisting arrest must be the form of an officer having one officer in a rare case a bystander having the defendant in his or her grasp and then the defendant shoving pushing struggling to  application of force yes it has to be active in fact that the the court and rich went to web servers and i believe another dictionary to define resisting and they said that resisting means to exert oneself to counteract or defeat and here we're so far away wrong there has to be some active application it has to be active absolutely a very minimal absolutely in fact in the reason why the conviction was overturned was because limb that's not resisting arrest it might be it might be obstruction but it's definitely not resisting arrest and there's never been a maryland appellate opinion which upholds that conduct as the basis for a resisting arrest conviction if i may just and james which was the subject of judge wilkinson's earlier questioning james provides for the application of the realistic probability test to more than simply listed crimes the crime in james was a florida attempted burglary statute that is not a listed crime and i understand that the clause that was being interpreted in james was the residual clause but i would urge this court to hold that the realistic probability test not only applies to listed crimes it also applies to crimes that may fall under the umbrella of the residual clause and also the force clause and that realistic probability test is important here is there anything in jane's that indicated that its application was limited to the that language only applied to list the crime of your point is you can you can envision hypothetical you can talk about cases on the margins you can talk about cases on the periphery but what you have to go out is what's the run of the mill case what's the ordinary case what are we looking at as a general matter and here you've got a problem with what i think of pretty clear common law origins and a and also a pretty clear present day purpose which is to confine to protect the safety of arresting officers as a general matter and not only to protect the safety of arresting officers but at the same time to protect defendants by limiting it and confining it to situations where the active application of force is directed  course of resistance against an officer of the the point is this offense if it's properly interpreted is the way i think maryland courts have interpreted it serves two purposes it it convicts where the safety of the resting officer is put in danger but it also helps the defendants but i'm not allowing them to be convicted or resisting arrest for just any old thing and here you know we're going to broaden the basis of conviction and say oh it applies to this and you can apply it here in a kind of plot out and then you just you're you're undermining it you're you're having it sprawl and spread far beyond what it was intended and it's going to redound if this is the new understanding of resisting arrest is going to regale to the detriment of defendants themselves well i'm out of time your honor but if i just may stay pretty fully it's not my position that this court needs to determine whether violent care conduct is at the heartland or presents itself in the ordinary resisting arrest case it's my position that this court needs to apply that realistic probability test and say is there something more than just a hypothetical crime is there something more than an example that has been conjured from the ether is there a realistic probability that's not the heartland that's more on the edge here or there has to be a realistic probability realistic probability but there's also the ordinary case which means that there's also that ordinary case language out of jail and but that's residual cause language and so i would certainly concede i don't get the benefit of the ordinary case term because that's in the residual clause i have a question  it element approach then under your analysis balance horse would necessarily be an element of this crime by force necessarily must be an element of this crap and it's not a matter of looking at commonsense and looking at different scenarios the reason we're doing it categorical approach is because we are looking at this crime and say well is it a necessary element and in that instance i guess i'd like to know if a person i keep hearing not resisting arrest it's not it's obstruction it's not resisting because the rich court citing titus says it's got to be applied to the person of another see my time is up thank you very much  that the person wasn't also charged with assault in the first degree assault with a deadly weapon of attempted murder i mean if somebody is stabbing somebody those are subject to much greater convictions that those convictions would tag a person as have the state by own it doesn't have the state well the force but this the state court interpretation has to interpret the force as violent force yeah but the point is that kind of work approaches you look at the element of defense and then we have determined in the federal level whether or not those elements can lead to a threat of violence correct do you agree with that it was not known on long do you agree that that's the now is that we have to do right or wrong how we come up we have to look at those elements and see whether or not the condo required to meet that offense or that it presents a risk of violence you agree with that no i don't care what what is wrong with that beginning analysis the conduct you said you said that one point two that could a but they narrowed it to crimes that have as an element just like johnson and battery as an element element they use or threaten use of violent force so not conduct that could lead to it conduct that  rest there's only three ways you do it either you have an existing warrant for their arrest of crime is committed in your presence or you have probable cause that they have committed a crime you agree with that yes all right so then you deal with that context a person already a police officer asked to do something is not an option and what we're talking about is the elements require you to resist that objective of a police officer a person who's committed a crime in their present they have probable cause and committed the crime or there's an outstanding warrant and when you use resistance there you question is whether or not  violence i feel like when you went in that question there's a there's an inherent presumption that we're talking about the most violent criminal possible but a person drinking in an open liquor on the on the l the way i read the maryland law is enough to kick to constitute resisting arrest and mcneill is an example of this case where mcneill was a man who was blasting his music annoying everybody and whe was he was abusive verbally and foul and eventually he resisted he got free and he fled getting free was the use of force there let me get back to follow up on  my friend joe should move about is this a skewed universe one question i had is i don't if we don't go by the published opinions i don't know really what we have to to go by i mean and because all of the circuit cases and supreme court cases it relied upon really reported opinions but furthermore if we were if we were to go down the road of speculating well what's out there that hasn't been reported i'm not sure we would ever find anything a crime of violence under the categorical approach because there's always the possibility trial that never reached appeal i mean i i just i don't understand if we if we take this q universe approach i wonder whether we can ever find a categorical find something to be a crime of violence what i what i'm concerned about is if the categorical approach is almost becoming a shorthand or they're not or you go under the only rare circumstances being a crime of violence i agree with you completely that looking into you know the governor's reflected reference fifty sixty years in maryland case law i agree with you that that that actually is the more abstract proposition to go back and see what the conduct in all these cases was in the skewed universe that we have the simplest way to avoid all that is the categorical approach and you said what do we look at if we can't look at public cases we look at the pronouncement of the state's highest offensive physical contact and my big question for the government is if violent force is necessary and nicholas why didn't the court say violent force is necessary they use the words offensive physical contact and i think that's  inquiry the force of holding onto a pole i'd like to refer to the court to durham v jones was the case that was before this court recently in the maryland attorney general said describe the offense as sufficiently in its committed when somebody scuffles with a police officer pulls away struggles to get away or goes limp so that does go to all the examples we talked about of just trying to get away that that would be  in the general confines of what is understood to be resisting arrest say under a model penal code or by other states is should we have as part of our analysis an effort to find eric crime of resisting the rest to be applied nationally i think that as long as we're looking at it under the force clause we only look at maryland if the sentencing commission were ever to list resisting arrest no you're saying just in the identified we should be looking for generic where th why you say we shouldn't be yes i believe that we have to follow the language as written which is whether it has a helmet and then the danger is if we identify crimes under the force clause or the residual cla e we're going to have a patchwork i gather that's what you're saying which would sort of fall away from what taylor seemed to suggest that we're looking for some uniformity national uniformity and apply in these enhanced ment congress decided to enhance criminal penalty with these crimes and i would think that somewhere in the process we should be looking for some level of uniformity shouldn't we yes i think uniformity is pentasa which is why seven states and we catalog those states or we look at the model penal code which is what the supreme court has done frequently wouldn't that be an adequate form of analysis if resisting arrest was know well the problem with that approach though is that because each state defines it differently and you're looking for what the conviction was based on that the conduct was your your overbroad then because there's some statute there some states that first by the way people don't plead guilty to the model