SJ Quinney College of Law, University of Utah


This Note addresses the constitutionality of the risk-of-force clause. Since many of the cases challenging the risk-of-force clause proceed on the argument that it is indistinguishable from the ACCA’s residual clause, the history of the residual clause is particularly relevant. Addressing the constitutionality of the risk-of-force clause will necessarily entail a discussion of whether it is distinguishable from the residual clause. Accordingly, brief histories of the ACCA and the residual clause will be given. This overview will provide a backdrop to the discussion of the Supreme Court’s struggle to define and apply the residual clause in numerous cases preceding the decision in Johnson. Understanding the Court’s trouble addressing the residual clause is a key component of the comparative analysis that will follow. After addressing Johnson as the culmination of the Court’s dealings with the residual clause, this Note will address how Johnson serves as a vehicle for challenges to other statues under the void-for-vagueness doctrine. The challenges to Johnson are presented to establish the certainty of a constitutional challenge coming before the Supreme Court concerning the risk-of-force clause. Last, this Note will address the constitutionality of the risk-of-force clause under a comparative analysis framework. The analysis will ultimately show that § 924(c)(3)(B) is distinguishable from previously invalidated statutory definitions and should be upheld as constitutional.