a court there's one issue for this court to decide today and that is whether temporary in a nice mild discomfort and a force that's necessary to cause that kind of mild discomfort a temporary or a nice is a sort that can be qualified as violent johnson from the supreme court and there the courts are looking at what kind of forces a says is violent force is a sort that can rightly care be characterized as a sword that is going to be more than a yelp of pain more than  f paper and all this stuff in common law we have the concept of battery and preferred so battery is just any kind of  not adequate to deal with these questions i don't think it's that it's not adequate i think it's a problem of our federal system where each state is allowed to have gradients of that kind of battery and the kind of harm that would result if you look back at  however this crisis group did together illinois they decided to separate it out harmful of it barrie is one offensive touching as another wisconsin doesn't have that though they do have graduated schemes for area in a substantial depending on the sort of injuries calm when it comes to that low level everything's live together well actually no the wisconsin battery statute the simple battery statute it's aggravated here by virtue of prison setting in the victim being a guard  the simple battery elements require intentional infliction of at least pain offensive touching isn't enough sure it's temporary only so it depends on how did the term pain is defined if pain is defined you know so at a minimum there must be the intentional infliction of physical pain which meets the definition of violent force as the supreme court has interpreted the elements i don't think so if you look everything's going to have some kind of force and there will be some kind of minimal pain it's not true of every battery if i just touch someone on the shoulder but you can look at this court's case in florida there's going to be the paper cut there might be that yelp of pain there might be the court didn't require a certain degree of pain i'm out to force on to the elements cause of the it just said the infliction of pain or other injury which is exactly what w just isn't enough but that agree of pain above that that's where the decision castleman really comes in and says this isn't the kind of pain that we would constitute as far as a violent felony goes now the kind that we're trying to get at for the our current lacked but it is a sort that it would fall under domestic violence the push to shop all those could cause pain but they're not to the level that we say once you have three of those you can get fifteen years to life and that's sort of the distinction you have to look at it is it violent pain is sort of pain that we're really looking to get at with this kind of prohibition and if you look at flora as there's going to be pain there's going to be pain in the airplane it's annoying it's sort of like i have for the kids and they're constantly annoying each other with like you know throwing lego's at one another there's always a pain there's a tear and they're running back but that's not the sort of pain that we're trying to encapsulate with and this is a sort of battery that we really want to lock you up for if you get three of these you're done for and i think that's what this court has to wrestle with if you have florida's or one end and you have illinois and other in illinois saying you know what this is above this offensive touching you're in being thrown in both wisconsin and illinois requires a sandlot of force and probably the sensation of the stinging probably  the knees that requires and pull through but wisconsin doesn't criminalize offensive touching in the simple battery statute it requires physical pain granted there is no degree of physical pain that the jury decides whether there's enough but offensive touching it doesn't fall within the simple battery statute in wisconsin sure that the paint has to be so slight though it's very interesting which will from the mirror touching the fen touching and it's normally that that is a statutory requirement and looking at the statutory requirement it requires physical pain you know there may be minimal physical pain and some actual simple batteries in and this court has said it's not going to that minimal harm and when that case came up to this court again in johnson and johnson three unfortunately by the name this court said no that's not going to be forced clause that's a residual clause or fact this is the same amount of force then yes that's a forced plaza facts but if it falls below that if it falls scores that indiana line and if it goes to it which is where wisconsin is then that can't be violent force though it does cause pain that pain is so minimal virtue of who the victim is or who the person committing the battery that's what elevates it but otherwise a simple battery in wisconsin is a misdemeanor and if you're going to save polygamist demeanor when i point it change that into a violent felony just because it happens to be a prisoner who is another prisoner there on higgs it was one prisoner throwing you're on another and that doesn't change it into an aggravated sort of bad if we can understand actually why a prison would be would would be particularly supervision after it i don't understand you to be questioning wisconsin's decision to classify this as a felony no i was applying to the right decision in wisconsin but right i mean it's simple battery that's elevated to a felony but by virtue of the context you a little bit harsher doesn't mean that there's more force than now it's violent force that we're requiring it just says you know this is kind of a more of a provoking standard is really the sort that rightfully fits within the residual plus there's no question this is a residual effects this is a sort of thing that if someone has your own thrown out and if someone has a sort of defensive touching that goes on it's provoking in nature and the response can be you know quite dangerous so i guess that's why this court said in johnson three it's residual flaws in the and this morning your honor just my name is robert anderson i'm system united states attorney i have the privilege of representing the united states in this matter the simple point was constant battery statute is a crime of violence the straightforward reading of the statu shows there is nothing in the wisconsin statute about or even approximating an offensive touching under the fourth clause this is a crime of violence the statute requires that the person charge intentionally caused bodily harm to another person intentionally cause  bodily harm in here early in volves the use of force in this battery that's what judge crabbe referred to in denying the challenge to his conviction under the statute denying him his twenty to twenty to fifty five relief h cites to does not change the definition of battery in wisconsin appellants reliance on higgs is not only misplaced but his argument distorts the law the definition of bodily harm in wisconsin is not tethered to or determined by the case law on hi higgs is not the standard as he alleges in his reply brief or in there in the primary brief i think too it's not the standard for bodily harm in wisconsin used by prosecutors judges and juries as he alleges i'm holding a copy of the wisconsin jury instructions battery by a prisoner and it uses none of the language from if it makes no reference to his eggs in any commentary any annotations it is the jury instructions that the prosecutors the judges and the jur you in identifying the elements of battery and defining bodily harm using the language of the wisconsin statute not higgs the wisconsin statute nine thirty nine twenty two  dipped in the higgs decision which is what that what his reference is bodily harm by the wisconsin definition is physical pain injury illness or impairment of any physical condition and then this deck this takes us back down to the higgs decision itself and its is misapplication of it higgs is not an offensive touching case it was a caused bodily harm case there was bodily harm by pain suffered by the victim the higgs decision by the wisconsin appellate court harm to just throw urine they rejected that the court held that that act intentionally and forcibly throwing a cup of urine did constitute a battery only and precisely because it did cause bodily harm it did cause pain so much is nothing more than dicta explaining why the record in the higgs case had sufficient proof for the victim suffering pain it did not rewrite the wisconsin rewrite the wisconsin statute higgs is not an offensive touching at least i can don't have a recollection and we don't i don't think we exactly know because at the time of course that mr yates was was convicted of this offense and the p s r was prepared it just referred to the fact that he was convicted of a battery by prisoner and he had happened with jack i can't tell you the exact facts because it wasn't going into in the p s r because while it's not in the record what exactly happened only that he has the conviction and that's all we look at does he have a conviction for this  and what are the elements of that offense and that's that's that's what the defendant or the penalties are going about now we it wasn't going into because he had three and the delivery of cocaine barry by a prisoner in a substantial battery record those are in the record they're in the p s r and he had three escapes those three escapes at the time counted against him as a salmon shouldn't that you know i i too i'm interested in exactly what happened in that battery but i we don't have a record of it  even even if you can if we could look into it it's not in the record here but it didn't it the important thing is what he was convicted under what the statutory elements were he could not have been convicted of a battery by person or unless there were the satisfaction of that statutory element that bodily harm there had been some pain some injury to the other to the victim for him to have that conviction and whether there is a degree of injury or pain  equaling bodily harm that is for the jury to decide ultimately a jury or the judge whoever is the fact finder to decide using the wisconsin instructions using the statutory definition not using any  the bottom end of the spectrum as being pain because we did have testimony or there was testimony in the yates i'm sorry in the pigs case that the individual that had your and splashed on him suffered pain by burning in his eyes testify there was he hit me but it just glanced off it didn't do anything it didn't leave a bruise in do anything and the fact finder could could very very well find i don't find that there's that there's an injury here that there's any bodily harm if the victim himself said he didn't feel anything so there wouldn't be a factual basis to convict them of battery so it's that simple and this court in as i pointed out in my brief having considered the was the definition of wisconsin  statute and in other applications as is always found that it is a crime of violence there's nothing in its arguments that require this court to depart from its existing precedent concluding that the wisconsin battery statute like the similar illinois statute that you also it i would just add scored charge many a jury i doubt many of these actually go to a jury well some are pled down but what if the jury came back with a question what's the definition of a pain you know under the statute what is it what it was just enough the court would have to instruct temporary arnie's mild discomfort that would be sufficient for you to find guilt and that's all we have to do we have to show a reasonable probability that there is a case and we have that case we've had five cases all of which