judge gregory may please the court i'd like to suggest that the panel can resolve these cases or certainly this one on a nearer or ground than deciding whether indirect uses of force satisfy the force clause specifically approach in this case requires the court to determine whether the elements of this underlying offense which is on lawful when doing in this case there's no devilled ability issue whether that can be satisfied by means which do not require the use of force either direct or indirect i'm certainly open and agree with my colleague statements that castle and did not specifically address the force clause to address nine twenty two g nine however i'm also aware as the court is that there are a number of opinions following tourism ago which have specifically said that the poison example in tourism a girl has been substantially addressed by the discussion of force in castleman irby read burns johnson covington all say that in direct uses of force can satisfy the force clause i'd like to set that aside for the moment because this statute that we're dealing with eighteen point two dash fifty one under the virginia code is far broader than simply requiring the use of direct or indirect force it says that an individual who causes any to the case law any bodily hurt whatsoever by any means with the requisite intent violates the statute and that necessarily includes omissions in the example that chief judge gregory provided for example if someone fails to give medicine or fails to give food and that causes any bottle that come under they by any means absolutely and there is state law that is very clear about what the elements in this offense mean and so the obvious question i would imagine from the panel is why is as was addressed previously why is this case not addressed by covington the decision that was issued last week about the west virginia statute and i would set two things first the covington opinion does not squarely address the question of whether the west virginia law that wounding statute encompasses omissions and so they simply don't determine whether the elements of that offense can be satisfied by an omission which is by definition not using force secondly i would suggest that the covington decision uses a methodology of applying the categorical approach which is somewhat at odds with the strict elements test that was adopted by this court in its decision in operation osorio in that case the government made the exact same argument that the government made in the covington case which is that a that the defendant here has an identified a west virginia case that shows that this offense can be committed without the use of force but that's not the categorical approach the categorical approach is strictly an elements test i would suggest that there is a way to distinguish covington from upper east where the simple way is to say the  this court in there were two judges in dissent judge wilkinson judge newmar but the holding of from the majority of twelve members of this court was that the realistic probability of language didn't require the defendant in that case to show that maryland resisting arrest required the use of force because the law was clear about the elements of that offense and they said today vishnu is the author of that that's correct majority opinion but there we had a we had a maryland court we had a maryland decision that was on point and we you had a maryland decision that said that the use of  was sufficient to establish force in a resisting arrest and i would suggest we have an analogous circumstance here that is the long case which we've identified which says the by any means language in the statute imposes no limitation upon the means by which this statute can be accomplished we know under virginia law that you can be criminally responsible for injury without the use of force through omission and we've cited two cases where the court stated clearly which is standard law everywhere that an individual who has a duty to provide care and fails to do so and if that causes death they can be prosecuted for intentional murder and i would suggest that it's very clear that if for example a young mother or an older mother prevails to provide food or medicine to an infant and instead of of death the consequence is any bodily whatsoever of that individual if they have the requisite intent have violated this statute the unlawful bodily injury statute and there there is no real response from the other side other than that the vast majority of the prosecutions under the statute don't involve omission and i can agree with that but that doesn't address the categorical approach that is that this court is required to determine whether these elements in compass the requirement that the government prove the defendant used force and responding to judge gregory  your point about the categorical approach generally and how we're trying to fit a round hole into a square peg essentially the categorical approach is designed to be simple it's designed not to require maryland resisting arrest arrest cases that's not what the categorical approach is about it's about the panel simply simply looking at the elements of the offense looking at the state law discerning those offenses and deciding whether those elements require the use of force if i can talk briefly about doing as alvarez which is the supreme court case there were that where that realistic probability language comes from committed through any means and we argued that in the opening brief here and the government says no actually this offense has to be committed through the use of force and the rule certainly allows us to respond to that say actually no this offense can be committed through a mission and so i think it's thirteen through fifteen of the reply brief we identify virginia courts which have applied omission in the context of murder we discussed long which is the virginia court of appeals case which says there no limitation upon the means by which this offense can be committed long your best case for that long is the best case because it says explicitly there is no limitation upon the means by which this offense can be committed the the issue of omission is raised at length in our reply brief it's raised in the in a in a a brief aside about means in the previous case in the opening brief and in the reply it's raised in other cases that are  pending that are or have been stayed pending the court's review of of these cases so omission is before the court and it is simply a response to the government's argument that you can't commit commit this offense without the use of force and we said actually you can here is a way that you can commit this offense without any use of force at all perhaps the court wants would consider well isn't omission simply another variety or species of indirect force i would say no and i have  case that is prior precedent united states versus gomez which is cited in the reply brief involving a maryland child neglect statute where this court specifically said hey if an individual is responsible under maryland's child neglect statute for failing to provide care that's not the use of force even if it causes serious injury i'd also point to two other persuasive sources which say that omission simply is not the use of force first is actually in the castle scalia was not happy that the majority in castleman looked to social science definitions of what domestic violence was he says all of these and he pointed to the source in the majority of this  brief that was submitted that talked about the way that people talk about domestic violence and he said they include such a wide range of nonviolent and even nonphysical conduct that they cannot possibly be relevant to the meaning of a statute requiring physical force or  the legal meaning of domestic violence for example am accused definitions describe domestic violence acts that humiliate isolate frighten and blame someone acts of omission excessive monitoring so clearly justice scalia didn't think omission constituted the use of force physical force since by definition an omission is a failure to act we know under virginia state law then an individual can bid be criminally responsible for causing injury even serious injury or death through omission if they have a duty to act because the statute is so incredibly broad then we know also it can be accomplished without the use of force having ten didn't address that point so what do we do with  reed and burns johnson which talk about indirect uses of force satisfying the force clause may be absolutely correct but that's they're not dispositive of this case because our argument doesn't depend upon  saying that it can only be accomplished by indirect uses of force which don't satisfy the force clause this statute is even broader than that and so i would suggest that when you get a case where the argument soley depends upon indirect uses of force then the court can evaluate ok do we need to address the conflict between torres miguel which says that indirect use of force don't constitute force and urbin read and birds johnson and how they read castleman and that can go on bonk and you can decide that issue we don't need to decide that here because the statute is so irreconcilable conflict between some of these later decision i am sympathetic to the view that cashman doesn't apply to the force clause that's at issue here i think that  and reid and burns johnson look at the rationale and the majority opinion cast on where the argument in that case was hey this underlying offense doesn't even constitute domestic misdemeanor domestic violence even if you apply the common law definition because it's not force and they provide to the poisoning and the majority says well that's not true actually if you engage in some de minimus or not diminished but in direct for such as you pull the trigger and that causes the use of force which causes the injury then that's it that's but worse you can't distinguish between direct and indirect uses of force so that's the rationale that is cited in urban read in burns johnson and you know i think that the court can certainly try to deal with that in another case but i would suggest that here we don't need to deal with that the last thing i would say again is that there is a clear difference that is difficult for lower judges and for parties to deal with and that is with the methodology of applying the categorical approach because in cases like salmond and dr chief judge gregory and in some other cases there is these references to realistic probability and the doing as alvarez to what we would usually argue about that what i would suggest is that the way that this court should distinguish huffington and those cases that apply that realistic probability methodology is the same way that on bank or distinguished doing his alvarez in opery see a story oh and that was that when the elements of the law defining the elements of the state law is clear the defense doesn't need to come up with a case to probability as opposed to a theoretical possibility right that language from doing was not a forced clause case and there is also binding precedent i would suggest torres miguel which says hey that realistic probability language that was limited to the comparison of a listed crime to win when an individual has a state offense that may fall under the federal definition of a generic offense that's what  doesn't apply to force clause cases that's what tourism a gal says at the very end and so one way to distinguish who enters our resident realistic probability is that the first panel to ever address this realistic probability test said that it doesn't apply to forced play and that's in which one is at stores miguel and so the last two paragraphs of tours miguel say were rejecting the government's doing as alvarez realistic probability case because that language is limited to the comparison of state offenses to listed crimes there is a i think a narrower to distinguish it and that is the way that the on bank court did in operation of soria which is hey these elements are clear we know there are clear and in this case because they're clear we can determine that the statute is broader than the force authorized itself the issue was about whether california is aiding and abetting was broader than the generic offense that the generic theft offense and whether it was different whether california was special acts and they cited three california cases where the supreme court in comparison comparing california law to the listed offense went through those cases and said they don't establish that principle and then justice pryor for the court said look you can't just come up with some hypothetical circumstance you've got  point to state law in torres miguel this court said that all relates to listed offenses but i would also suggest a way to distinguish it is that it relates to circumstances where the elements of the state law are not clear if the elements are not clear and the defendant says hey this is outside the listed offense or the fourth cause you have to come up with some state law but here the laws absolutely clear this offense can be committed through a mission it's as by any means and because of that it is broader than the fo extreme indifference to human life or the use of a deadly weapon there is an offense under virginia law that gets that definition it's the next one over eighteen point two dashed fifty one point two aggravated malicious wounding that  aggravated malicious what aggravated assault this one doesn't require serious injury doesn't require extreme indifference to human life doesn't require the use of a deadly weapon it does require the intent to me or i mean absolutely and if that was if that was the sole criterion for the generic offense of aggravated assault i would agree it fits but but that's not what the courts have said aggravated assault requires serious bodily injury extreme indifference to human life use of a deadly weapon and not intent to cause serious bodily injury you don't think well i don't think that's sufficient i think you can really really want to kill someone but if you don't cause serious bodily injury or use a deadly weapon or have extreme indifference to human life you haven't satisfied what we consider to be the the he elements of the generic offense of raga rated assault and so that's basically all the cases we've cited i think it's seventeen eighteen in our reply brief i think that model penal code and blacks  did one of the aggravators that they cite to is the intent to cause serious bodily injury and i wrong about what they say is that if you've attempted to kill someone with extreme indifference to human life that that could satisfy aggravated assault and here i would say just the intent although it's bad it doesn't require an individual to have extreme indifference to human life just the intent is lower it is not necessarily the intent to kill and so there's actually virginia case law where people say hey this is a lesser included of murder and the burgeoning court said no you don't have to have the intent to kill to satisfy this offense i would suggest that the aggravated assault with the intent to  serious bodily injury and you cause it and you have extreme indifference to human life that is far closer to the intent that is required in a murder case thank you the court christopher carries on for the united states a defendant cannot violate the virginia meaning statute unless he has the intent to maim disfigure disable or kill the presence of that intent requirement guarantees as a textual matter that a defendant cannot be convicted of violating the statute unless he has used threatened to use or attempted to use violent physical force as defined in johnson that is the central holding of read the central holding of covington the central holding of irby and that decides the case given that the statute issue and read have the same intent to cause bodily injury or injury as is present here and given that the statute at issue in covington is essentially identical to the statute issue here even if the text didn't compel this conclude regina case law does now the virginia meaning statute has been on the books since at least eight hundred eighty seven it probably goes back to before the founding and english common law and yet mr caymans has not identified a single case that suggests that this statute can be violated by mere touching by what johnson said is in harris from one nine hundred twenty eight i believe in which case in which the indictment charged wounding in the court reversed the conviction and said no you need to charge bodily injury under just camps under mathis that shows that the virginia supreme court has construed this as being malicious wounding unlawful wounding malicious bawly injury unlawful bodily injury four separate offenses but for the purposes of this case we're willing to take the whole statute on as a categorical matter because we think it clearly qualifies now not only does mr james fail to cite any case that suggests that this statute which requires an intent to kill maim disable or disfigured now as you said any case suggesting that get that back can be violated by simple offensive touching but the virginia cases actually make clear that this is a a serious statute the virginia case johnson which we cite in our briefing two thousand and eight shows that says that the statute requires an intent to permanently harm another person the same case johnson citing prior supreme court cases says that even in punch an unprovoked punch to the face with a closed fist normally is not enough for the court to presume that a defendant has the intent to cause to to maim to kill to disable to disfigure in that case and johnson the virginia court of appeals actually there was a decent dissent to defend in that case after after he was se case turned around punched the prosecutor because the concussion caused the prosecutor to fall to the ground hit his head and then require stitches there was a four pages of debate about whether or not there was sufficient evidence in that case  satisfy the statute and there was a dissent in which case the dissenting judge said no i cannot presume that there is intent based on an unprovoked punch on an unsuspecting victim so if there's no judge gregory to get to your point about the worries about these predicate offenses and whether states have the incentive to narrow them the virginia cases make clear that they carefully police the statute and not only johnson but by the way in the johnson case that they said that the only reason that they said that the punch itself was enough was because it was a punch of unmitigated brutality and that cent said that he didn't think that the punch alone had enough unusual violence retaliate so this it's not a squeeze this is not a pinch these are serious offenses as they must be if a defendant is going to act with intent to kill maim disfigure disable there are numerous  cases side in our brief in which case in which the supreme court or the court of appeals has reversed malicious wounding convictions and sent the case back and said you can have an assault and battery here but there's not enough intent to find that there was a bodily injury here this is a serious statute mr caymans even pointed out that this is often a lesser included offense of murder in fact this is basically attempted murder with bodily injury and that point before i move on to view some of the admissions arguments judge gregory no i'm your other point about whether or not we have recidivists here and i recognize in your opinion doctor and judge will consume concurrence and dr that was a topic that you both discussed about some frustrations about mandatory minimum sentences mr james is twenty four years old already has a criminal history of six as this court held in eldridge opinion which flows from  one affirming without discussion that virginia unlawful wounding qualifies as a crime of violence he is exactly the type of recidivist defend defendant who the law should and must seek to incapacitate i want to go now to mr caymans arguments about omission and the simple the simple response to a mission is that this this court has already decided and reject that rejected that kick argument in irby it was presented squarely in irby i looked at the briefs last night and the defendants in that case argued the same withholding of of medicine and that improbable hypothetical and if you withheld medicine surely that would not be enough force to commit murder and be said no murder committed by omission obviously is murder and the language of the court used in irby is it is enough that the individual intentionally acted to place the victim in the path of an evitable force that irby and that's consistent with castleman in castleman the supreme court said that the use of force is the knowing or intentional causation of bodily injury knowing or intentional causation of bodily injury of course in the proper ok in the right circumstances of course you know mission can call it can you can kill by omission of course that's what the court held in irby now mr cain is criticizes us for not pointing out or says well i don't have to wounding by omission can can satisfy the statute can satisfy that high intent requirement of intent to kill maim disfigure disable and there's a good reason for that too as judge niemeyer pointed out in his physical force but of course in a mission can involve physical force in those rare cases when someone kills by omission now mr came and said that he cited cases from virginia where someone was found liable for  murder for a mission but that those cases were not defendants who were found while for murder they're found liable for involuntary manslaughter and that is generally not the use of force because that can be by neglect that can be by hundred five in that case a defendant allowed her mother to freeze to death in starved to death it was the mother was found the elderly mother who was incapacitated was found with a body temperature of eighty degrees now one would think that might be enough to satisfy the intentional killing no she's convicted of involuntary manslaughter in bittle that's another case that mr came in cites a mother allowed her three month old child to go to starve to death court of appeals the supreme court virginia supreme court that case reversed the murder conviction and found that there was not intentional conduct on behalf of the mother to willfully or maliciously withhold food and liquids from the baby these are horrific cases  horrific details but that does not negate the fact that in limited circumstances in a mission can cause murder as the court held an herb and in some hypothetical of not i get to hear mr caymans has the cite to the court the seventh circuit opinion seven circuit seven circuit judge ruled other trouble with the fourth where she was she directly addressed this this argument and this is that eight sixty s third four fifty inside is four fifty nine to four sixty and she writes if a defendant has the ability to withhold life sustaining food or medication then the victim is likely disabled from sustaining himself by circumstances like age in for me or captivity a vulnerability that renders him subject to the defendant's control so the i own improbable hypothetical imagine a incapacitated victim in his hospital bed and he's got life saving medication and if you give too much of that lifesaving medication he dies you poison it to death if you give to little if you turn it off he dies because you need the medication under castleman under irby and it's no wonder bates now that if you were to turn that knob up in poison him that is an indirect use of force and would would would qualify under kasman the the only way that mr caymans can succeed here is if he can convince you that just turning the knob down i was holding her in the knob in that example i mean i don't mean to be a literal about it but we are consuming words that at least that matter on matter you're turning the knob down i'm on on worried about the case where you literally do nothing just stand there while the the i would go back to earth be then in which you intentionally placed the victim in the place of an impending cause that you knew was going to cause death so going back to the old movies where someone else is tied up on a a railroad track and i'm sorry  makes clear that's what judge rover's point is that it's not necessarily we're getting mosque in the idea of the the means of carrying it out but the the force is the intentional act by the person  to cause harm to befall the victim and whether that's direct with its indirect whether that's removing a barrier such as life saving medication that otherwise would cause that train barreling down the tracks of the disease or whatever it is that's going to be the force that causes the that interest me so your argument and i totally get this is look direct indirect is basically this is all one question direct indirect mission commission once you've said direct indirect doesn't matter so to commission omission that is because there is the argument that all makes and i mean i totally understand that it's just that there is this kind of literal sense right in which we can understand direct indirect as being different because at least it involves you had to pull the trigger you had to you know do the eyedropper to get the poison into the person's mouth whereas commission really does leave open at least a set of hypothetical cases where there is i mean let's you know that there's literally no force in this picture and i think that the combination of the intentional act by the defendant and the fact that these are always going to be instances in which the defendant has control over a vulnerable victim whether it's a child whether it's someone who's infirm whether it's someone who is misled the defendant is exercising his or her control over a vulnerable victim to basically place that person in the way of a force that the defendant knows is coming and as an intellectual matter consistent with lee a cow and johnson that is the intentional act as judge i mean there is this textual problem with the word force that's all that and i would submit to go back to the intentional intentional action in the fact that this is only going to be instances in which the defendant has control over a victim there's t usher him or her into the impending force that is force if if if the court needs that textual basis i want to make sure i respond to all mr caymans those points  sariah dealt with assault and battery and in that case the court held that you could this statue at issue could be committed by offensive touching and the court they have to be consistent with africa to be consistent with that as you pointed out that dealt with a different statute and you were spot on the language in that court this is from seven forty s third page one fifty seven the court there said judge davis merely monday named legal research skills could locate that maryland's highest court has stated that the degree of force required as an element of maryland resisting arrest is offensive physical contact there is the greatest research skills in the world we've now heard two oral arguments on the exact same statute has not located a single case suggesting that the virginia maiming statute can be violated by offensive physical contact doesn't exist it cannot be violated by offense of physical contact because it requires intent to kill maim disable or disfigure to operate is just not relevant here because there is a controlling marilyn supreme court case that straightforwardly answer the question very quickly towards miguel and burns johnson on the question of looking for realistic possibilities rather than a realistic probabilities rather than possibilities urns johnson said in light of the supreme the only question for this panel and i was to simply don't know whether west virginia the west virginia offense covers omissions but the only question here given that concession is whether omissions constitute the use of violent physical force the answer is clear and it's not addressed by irby i will for purposes of this argument concede that leading an individual on to train tracks where an oncoming train is about to hit the person is no different from pulling a gun out and shooting that person but with the of those instances or hypotheticals involved a defendant who engages in conduct where he sets concrete bodies in motion and that definition comes from johnson two thousand and ten where scalia for the court says this requires physical force and we have definitions of physical force that come from physics which require the use of the exercise of concrete bodies in motion that doesn't help us that much in that case in  castleman the court says what this means is that force is not emotional force it is physical force it means setting bodies in motion omission does not do that by definition and irby doesn't change that  irby addresses indirect uses of force like taking someone on the train tracks or pulling the chair out of somebody who can which they can then cause injury that are those are indirect uses of force that still require proof that the defendant set concrete bodies in motion omission does not require that a parent who decides not to feed or provide medicine for a child because they simply don't want that child to live or they want the child to suffer injury and the child therefore software's some bodily injury any bodily hurt whatsoever by means of the mission that constitutes a violation of this statute the person didn't lea the child onto train tracks the person didn't cause the injury through the exercise of concrete bodies what the person has done is engaged in the galactic and that they are therefore criminally liable and even if irby addressed this question the court would be bound by united states versus gomes which preceded irby in which the court was as i said addressing the maryland child neglect statute and said pursuant to the statute found it may be found guilty of physical child abuse by committing an affirmative act or by neglecting to act neither of which necessarily requires the use of physical force against a child and so that establishes the principle that we ask the court to adhere to here we have identified virginia law that says this offense can be committed by any means and the government has conceded omission is a means that resolves the case right