Whether causation of harm necessarily entails the use of 'violent force' under Curtis Johnson

QUESTIONS PRESENTED In Curtis Johnson v. United States, 559 U.S. 1338, 140 (2010), the Court defined the term “physical force” in the ACCA’s elements clause to mean “violent force—that is, force capable of causing pain or injury to another person.” In United States v. Castleman, 134 S. Ct. 1405, 1413-14 (2014), the Court expressly left open whether the causation of harm necessarily entails the use of “violent force,” and the circuits have disagreed. The Eleventh Circuit, in the decision followed below, United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017)(en banc), held 6-5 that “violent force” under Curtis Johnson is measured by its “capability” of causing harm, not the degree of force used, and since great bodily harm is caused in every Florida felony battery, the offense easily meets Curtis Johnson’s “capability” test. The Eleventh Circuit also split 6-5 in Vail-Bailon, and the circuit courts have split as well, on proper application of the Court’s holding in Gonzalez v. DuenasAlvarez, 549 U.S. 1183, 193 (2007) that in applying the categorical approach, there must be a “realistic probability, not a theoretical possibility, that the state would apply its statute to conduct that falls outside” the relevant federal definition. The Vail-Bailon court disagreed on whether the plain “touch” language of Florida’s battery statute itself established that “realistic probability,” or whether a reported case was necessary to confirm overbreadth. The questions presented are: 1. Under Curtis Johnson, does causation of harm necessarily entail the use of “violent force”? 2. Under Duenas-Alvarez, is it necessary to identify a reported case to establish a statute’s overbreadth, if the plain statutory language is itself overbroad? i