Whether California's simple kidnapping offense as it existed in 1974 was a 'violent felony' under the 'force clause' definition of 'violent felony' for purposes of the Armed Career Criminal Act (ACCA)

QUESTIONS PRESENTED FOR REVIEW This case centers on whether California’s simple kidnapping offense as it existed in 1974 was a “violent felony” under the “force clause” definition of “violent felony” for purposes of the Armed Career Criminal Act (ACCA). The text of the statute required the defendant act “forcibly,” but the California Supreme Court held that the “forcibly” element was satisfied even if no physical force was used if the victim was a child or vulnerable adult and the defendant acted with an illegal intent. Despite this variation in the means by which “forcibly” could be proved, California courts have never treated kidnapping of a child or vulnerable adult as a separate offense from regular kidnapping. Indeed, California courts could not have done so since California allows only its legislature to establish offenses, which are then published in the California Penal Code. Nonetheless, the United States Court of Appeals for the Ninth Circuit held that California kidnapping could be divided into two separate offenses: (a) kidnapping of a child or vulnerable adult, and (b) kidnapping of a competent adult. In addition, the Ninth Circuit held that even though the “forcibly” element of California kidnapping could be fulfilled by an implicit threat of arrest regardless of the victim’s characteristics, an implicit threat of arrest fulfills the “physical force” requirement of the “violent felony” definition contained in 18 U.S.C. § 924(e)(2)(b). ; The questions presented are: 1. When a state’s highest court has interpreted a state criminal statute to allow for a conviction even if no physical force is used in certain circumstances, can a federal court hold that the statute is divisible despite the fact that the statute’s language and it’s treatment by the state’s courts indicate it is indivisible? 2. Is the Ninth Circuit correct in holding that an implicit threat of arrest fulfills the “force clause” definition of “violent felony”? ii