Criminal Law Blog

Case Note: APOWA is not unconstitutionally vague.


Fadero v. United States (decided March 22, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson.  Opinion by Judge Fisher.  Trial judge: Ronna Lee Beck.

The main issue in this pro se § 23-110 motion was whether the phrase “grave risk of causing significant bodily injury,” incorporated in the crime of felony assault on a police officer while armed (APOWA), is unconstitutionally vague.  Appellant relied on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015).  In Johnson, the Supreme Court considered a provision in the Armed Career Criminal Act (ACCA) that includes conduct “that presents a serious potential risk of physical injury to another” in the definition of “violent felony.”  The Supreme Court found that provision to be unconstitutionally vague.  The DCCA rejected Appellant’s argument that if the “serious potential risk of physical injury” clause in the ACCA offends due process, the “grave risk” language incorporated in APOWA must as well. The problem with the ACCA was that it required judges to determine whether the “ordinary” way a crime unfolded created a serious risk of potential injury – a “highly subjective exercise.”  In contrast, determining whether a defendant committed a violent act that created a “grave risk of causing significant bodily injury” is a question of fact that involves an inquiry into the defendant’s actual conduct.  The provision does not require judges to imagine the risk posed by the “ordinary” APOWA.  NG

Read the full opinion here.