uses or threatens the immediate use of physical force requires force capable of causing physical pain or injury to another person so as to qualify as a prior violent felony under the arm career criminal act and the enter to that question is yes but take a pickpocket a team of pickpockets often often people a very slight small children who tap somebody on the right shoulder draw their attention to the right side behind them while somebody else reaches into the pocket is that why isn't that the use of physical force because that that's the use of physical force but it's not the use of physical force that's capable of causing physical pain or injury that's exactly my point so that's not that's exactly the point that it's not capable of using physical force of injury but it is with the connecticut law doesn't require that it be capable of producing pain or injury we believe in the kind of the law does require that what where does it say that the state be right which is the connecticut supreme court decision on the subject which is the highest court in connecticut says that at its lowest level force can be a small there is great force and there's slight force force is something and if you attack somebody on the shoulder have used force yes you've used force very slight force and force not capable of causing pain or injury so i don't see i  don't see where you get the proposition that that that we can say that connecticut law will only apply when force is used that is capable of that is likely to cause or capable of causing on i think your example actually provides a perfect distinction between the two because the first is larceny it's not robbery under connecticut law if someone if i'm standing here and someone pickpockets me so that i don't even i'm not aware of the force or i don't even feel it that's not a threat and use of physical force and that's and i don't know it doesn't require the threatened use of physical force it can be satisfied under connecticut law either by the threatened use of physical force or by the actual use of physical force it doesn't require a threat to use physical force that's simply misquoting the statute for the act i would argue that the actual use of physical force in your example is not capable of causing physical pain or that's  argument i'm making to you but then we agree because if that's the case then connecticut law i'm saying that right says the minimal amount that can satisfy a robbery conviction under connecticut law is force capable of causing physical pain or injury where do bill of use of it where did it say capable of of causing pain or injury it cites those three examples that i provided which are all examples of force capable of causing physical pain or injury yes but it didn't say when applied with sufficient force to cause pain or injury it said can be satisfied by a pinch or a scratch or whatever it was and and there's no question that those things can be done with sufficient force to cause pain or injury but they also can be done with insufficient force to cause pain or injury while that court says that it's minimum those that's right in our opinion such that the floor of what's required to satisfy force capable of causing to satisfy force under the connecticut statute but there is no contrary case law that either appellee has cited or that the government has found which shows that something less than that as in your example would constitute a robbery under connecticut law cited to the contrary on there's no case law that shows that it can't be satisfied by physical force insufficient to cause pain well we think that right sets the floor so that's the connecticut supreme court said speaking on that issue the statute itself requires the use of physical force and then the jury instructions that a police cites to impeach one thousand of his brief also show also require the external physical power over the person which again the government would argue is the requirement of force capable of causing physical pain or injury you say what's the last point you just made the last point is that the jury instructions which require physical which say that physical force means the external physical power over the person again encompasses a higher threshold level of a requires force capable of causing physical pain or injury so to your honor's point there is no case law in connecticut that shows that your honour's example of a pickpocket pickpocketing could be could but if that's the case and you have to look at what the connecticut supreme court has said on the subject and then we go back to the right decision in the statute itself i mean when you look at other statutes i'm sorry  other circuits that have looked at this issue it's not like they're finding explicit state case law that says exactly what's required they need to extrapolate what the highest court in the state has said on this subject and here you have the example and right what about the  the crumpet case state versus crum nine hundred eighty six case two zero one connecticut for eighty nine which seems to suggest that pushing a victim away from a  cash register constitutes sufficient for a sense of stain or robbery under connecticut law does that constitute you know violent force on the two thousand and ten johnson case yes we would argue that that case constitute the implied use of force capable of causing physical pain or injury so as to qualify as a violent felony under twenty ten johnson so you would differ with the fourth circuit's determination  united states versus gardner well we would the fourth circuit first was considering north carolina robbery and there was a new york supreme court sorry north carolina supreme court opinion that had said that the degree of force used is immaterial so i would disagree with the fourth circuit in that the facts of the pushing in gardner are de minimus level of force but at the end of the day it doesn't matter because the fourth circuit was considering a law which said the degree of force is immaterial so even if this fact pattern had involved someone banging someone over the head with a machete because the statute itself and what the supreme what the supreme court in north carolina had said about this statue means that courts said and it sidle it's cited castleman and the quote is recently the court supreme court confirmed that certain minor uses of force do not rise to the level of violence that the aca requires and it was in reference i think to aca listing several examples of in that context a mess to violence including shoving and grabbing and noticed and noting that domestic violence and i quote encompasses acts that one might not characterize as violent in a non domestic context i would our our position is that castle men who spoke to the amount of physical for the amount of force that's required for a prior misdemeanor conviction of domestic violence the majority in that case explicitly declined to decide whether the types of force that justice scalia was cited in his opinion which are hiding hitting as the type of force that would qualify again it is exactly the types of force that the connecticut supreme court in c v right are holding the minimal type of force necessary to satisfy a robbery conviction  casually be done with sufficient force to cause pain but that doesn't mean that every slap is done with sufficient cause to force to cause pain if one takes a blade of grass and slaps it across one of the back of one's hand  that's not going to cause pain or injury so the fact that that a slap can be sufficient or a pinch can be sufficient to cause pain doesn't doesn't equate with the proposition that all slaps and all pinch or have sufficient force to cause pain but if it if the force used in connecticut when committee a robbery was not sufficient to cause pain the connecticut states when you review the law in connecticut those types of actions are charges larceny they're not that's at that minimum threshold as well as all of the cases we've cited in our brief which each of them have a level higher than the example your honor posited would mean that that type of charge would not be fraud or would be thrown out if it were brought i mean the law in connecticut is much clearer you're relying on the well recognized proposition that in the case of ambiguity in statutes one interprets them against the defendant i would argue that the start of this statute in connecticut is not ambiguous and that is actually one critical point that distinguishes the law in connecticut force it means force capable of causing pain or injury clearly without ambiguity when it in but you would see that that's what it means when it's read in the context of the statutory scheme in connecticut which sets out larceny as robbery from a person without force and when you get to robbery the force applied is forced that is directed to take the property from another person and the only way that that can be accomplished is force capable of causing physical pain or injury or the threatened  of force capable of tapping them on the shoulder to draw their attention here well somebody takes the wallet out from the other pocket that's the application of force to take property from a person but then that's a larceny i mean in the right it's a perfect example of the distinguishing between the two because in that case there was two people outside the robber came up to the victim and said are you in a gang the victim said no the robber said give me your jacket they're up and the victim gave his jacket initially the both larceny and robbery were charged the robbery was thrown out and that was determined to be a larceny because there was no force capable of causing physical pain or injury so connecticut supreme court unfortunately hasn't set out exactly the exact words that would be most helpful to your honor's when considering this because they're not looking at federal law i mean i think just and the very base practical application of this when you look at how robbery is committed in connecticut unnecessarily requires the use of force  morning may please the court my name is charles wilson i represented mr shabazz before the district court in judge underhill and obviously i'm here on his behalf and also to defend judge underhill as decision given the nature of the questioning to the government i might leave aside some of the other things i was going to say and just highlight a couple of points one the government referred to the need to extrapolate from what's out there and i would say quite frankly that's wh went to the cases he went to the state cases he has a very thorough analysis in his decision much of which i quoted in my decision one case that i don't think got mentioned in the discourse with the government is the case of state versus williams where again it's in dicta and i want to oversee that but it talks about force being sufficient to affect a person without more may kentucky constitute simple robbery i think that's pretty close to your honor's discussion page twenty six and in that case in the rate for case they talk about the amount of force used is immaterial so when i heard the government draw that distinction from the fourth circuit case about the reference in there that immediately came to mind and i think it's important for the court to consider in terms of the distinctions between larceny and robbery in the cases that were cited in the governor if i understood what you said the one about a ambiguous in the same sense as i was saying to your adversary that her examples are ambiguous because the amount of force used in a person that can be can be great or or can be slight  it's it can be on either side it can be all over the map as say that the amount of force used in a person matching shows that it doesn't require violent force is isn't really persuasive it just leaves the issue open as to how much how much force was used in the person that there's no question that one could use violent force in a burst natural right in it when we're doing the categorical analysis you know the i want to see the burdens on the government not sure that that's the right phrasing but the idea is they have to show that every possible instance of robbery in connecticut would necessarily involve violent force in order for connecticut robbery to be a violent felony and the discussion in williams about per action your honour's hypothetical about the pickpocket situation are all indications that not every robbery necessarily involves violent force that the tone of the government's argument and one of the things that struck me in reading the briefing was it's almost as if they're trying to take the word violent out of the definition and when we go back to two thousand and ten johnson while there is this phrase about capable of causing injury the first thing it says is that force is violent force you know it might sized if i remember correctly so there has to be some layers of distinction amongst the types of force which was one thing that struck me and in going back and looking at everything and then there is a collection of cases that the government relies on in its brief but i know in terms of violent forthright that same two thousand and ten decision specifically mentions slapping as an act that would be considered violent b know well i would say one hand if if we don't know that you go to mr shabazz his favor in terms of how we're looking at this and we can't say that any robbery in connecticut is categorically violent and we should rest on the analysis that judge underhill is done of the state cases and to some extent cases outside of it perhaps it's a signal from castleman that everything has to be looked at in context which which i always tend to favor as a defense lawyer you know kasman was done in the domestic abuse context where we probably want a really big broad definition of force here when we're going to lay a fifteen year mandatory minimum on someone maybe we want to more narrow definition that seemed to be maybe one of the ideas that existed in the johnson twenty fifteen case and making sure that we get it right over time why judge justice scalia kept going back to the issue again and again one of the other things i would say just from a practitioner standpoint in terms of robbery versus larceny you know large city police from robbery charges what is the plead down from robbery charges you know any number of people who are charged with robbery in state court you work out a deal for larceny because it is better presents better consequences for siri was arguing is of these are mutually exclusive categories that if something is larceny it can't be it can't be robbery but that's not simply not necessarily the case that's of course is not the case your honor i would be the case if the and well i didn't do it here but i perhaps i probably could i can imagine the number of defendants who are arrested in connecticut where when you first see their charges it's robbery you know robbery in an larceny and all the different things that might cover the conduct i don't want it to my knowledge to my to as far as i'm aware there is no connecticut case that said that says that while force was applied in the course of a particular taking of property from someone the force was insufficient to make it robbery and that degree of force is only consistent with lawrence and he and does not permit a conviction for for robbery there's no such cases that i don't recall seeing that kind of analysis where they're looking both at the same time but again i think judge underhill did what needed to be done here in terms of figuring out where connecticut stands now certainly we don't have the amount of cases in connecticut that you have in new york one of the things that was striking to me  litigating this case now being here on the appeal is that the government seems to be moving away from what it has always done in cases involving connecticut robbery which is to look to new york robbery and how that's been interpreted but here they're trying to create you know i don't know if they're trying to back off that approach or it's not going to work out because of signs that we're seeing in terms of how new york robbery is being interpreted in the district courts but even here given what we have to work with in connecticut i think judge underhill reach the right outcome so unless the i have some question about the question of the issue of structural error and i'm not sure i understand why detailed harmless error view which shows that you could look at this in terms of the legal questions presented and you could resolve the case and then doesn't that undercut the view that there was structural error in other words responding if you could respond to your adversaries for you want to respond to a question i think their view is maybe not exactly that but i'm sure they appreciate it what i would say is that the very thorough analysis th judge underhill did of the harmless error aspect of this case probably was to present but you know all the possibilities here knowing full well that the government would appeal and so i just look at it as a judge saying look if not the alternative answer that is b in so this court here can reach the issues about robbery that are pressing in a number of cases quite frankly i have another case that stayed pending this appeal  without really having to get to the structural error issue so i think you could avoid it i mean it's it's completely irrelevant isn't it i mean it is a supposing that supposing that there were cases in which the highest court of connecticut had said no a small amount of force like a tapping force that is insufficient to cause injury or pain does not qualify as robbery under connecticut law they would be no reason i mean it would make no sense whatsoever to say there was structural structural error in relying on the no longer valid clause of of aca that would be a harmless error because  connecticut robbery convictions would clearly have required violent force so i don't know why the district judge thought that this was structural error i don't see how that's a defensible position but it doesn't really have much bearing on the outcome that we as the district judge himself demonstrate as judge katzman said by by going into an analysis of the of the connecticut law again trying to be judge on his mind a lso judge paul is because she did the similar thing in villa in a way of a i would suggest that perhaps they got to the issue of structure in part because at the time the government was pressing this idea that johnson two thousand and ten shouldn't necessarily be applied to you know sentencings that occurred before in the appeal here miners change the government has backed off that and they've really lined up the you don't need you don't need to defend the proposition that it's structural error to win your side of the case i don't think i need to i mean i will if it's still only way i would i would win but i don't think i need to and i don't think the court which means i don't think the court needs to reach it quite frankly but i just have one second to make a quick check so the one last point i was going to get to the government has some cases in its brief where violence occurred but again i don't think that really the fact that there have been robberies where there was violence doesn't answer the categorical question here  for example they point out at williams that there are in the williams case which i just brought up a minute ago that there's some discussion of violent activity now i would submit the probably the reason that the connection supreme court did that is because the first degree  robbery subsection that was at issue was a one which is the one that talks about causing a serious physical injury as the basis for it being first degree robbery that's not the case here this is solely the issue of whether the gun was in his you know was in his pocket when he was committing the robbery and the government doesn't appear to challenge that so one last thing i would say is the judge said that there was no real data from the government to support its position and at this point they haven't provided any real data either so judge under those decisions thank you thank you going back to deciding the level of free for force required this court's decision in us feel it's instructive on in that case this course the court held that the amount of force required is force capable of causing physical pain no and no less than that and so to go back to the examples that we've been discussing here a pinch slap or scratch are all capable of causing physical pain or injury and thus should qualify as a violent felony under the aca and specifically in that case this court held that there the supreme court did not say that any particular quantum of physical force had to be applied the base level is force that is capable of causing physical pain or injury saying that by definition all  capable of causing physical pain or are you saying that at a pinch can be capable of causing physical but there's no such thing as a pinch that's not capable of causing physical pain or or injury i'm saying that a pinch can be capable of causing physical pain or injury and if it was used to disputable but the issue is not that the issue is does any pinch necessarily cause physical pain and you're saying that connecticut requires that it be capable of causing physical pain and i'm saying that any parent is capable of causing physical pain they don't all necessarily cause physical pain but any pinch is capable of it no matter how slight it is no matter any pinch is capable of a yes and that's the same as the slap that justice scalia instructed us to look at in johnson and he slapped no matter how slight it is capable of causing physical pain and so this is the base level nobody said there is no quotation that says any slap no matter how slight it is is capable of causing physical pain you just invented that you're not quoting from any case what the case said is a slap is capable of causing physical pain not that any slap no matter how slight is capable of causing physical pain but the slap is poor i would agree with that but the slap is provided as an example and i think the important thing to keep in mind is i mean this if this is the floor that the state court is setting there's no cases in connecticut that with robbery that are even remotely close to this floor they all require much more degree of force capable of causing physical pain or injury and when you look at other circuits to the extent they're instructive on this issue you can see i see a clear divide in the circus that i've considered state convictions in which the amount of floors force is de minimus or no force required at all whereas when the force required is keep a force capable of causing physical pain or injury and the connecticut robbery fits squarely within the second group of those types of convictions thank you thank you thank you both for your arguments the court will reserve decision