JUSTICE SOTOMAYOR: I'm sorry, we usedAlthough you can't see it in the transcript, Sotomayor pinched Gorsuch where the laughter line occurs. Pretty funny.
the example of a tap on the shoulder not being
sufficient force. So can you answer Justice
MS. BRYN: Right.
JUSTICE SOTOMAYOR: Is a pinch, an
ordinary pinch -- let's not talk about an
JUSTICE SOTOMAYOR: -- pulling of the
ears that a parent might sometimes do. Let's
talk about just a pinch.
JUSTICE SOTOMAYOR: Is that sufficient
force? If we said a tap on the shoulder
couldn't be, why could a pinch be?
MS. BRYN: I -- I think the -- the
answer is looking at the -- the other side of
the equation from what a substantial degree of
force is. And Your Honor mentioned force
capable of -- of causing pain or injury. And I
think the only way to read that explanation of
violent force is as force that's -- a degree of
force that's reasonably expected to cause pain
JUSTICE SOTOMAYOR: You've -MS.
BRYN: I don't think a pinch -JUSTICE
SOTOMAYOR: -- you've said the
reasonable -- and I do understand your point,
which is, from personal experience, if you tap
an injured shoulder, it could cause injury.
It's capable of causing physical pain and
But we said, in the normal course of
circumstances, a tap on the shoulder would not
-- is not capable of producing injury. So -MS.
BRYN: Nor would a pinch.
Justice Kavanaugh also asked his first questions:
JUSTICE KAVANAUGH: But -- but,
counsel -- counsel, in Curtis Johnson, you rely
heavily on the general statements of the Court,
but the application of those general statements
was to something very specific: Battery and a
mere tap on the shoulder. And all Curtis
Johnson seemed to hold was that that was
So why don't we follow what Curtis
Johnson seemed to do in applying those general
statements to the specific statute at issue
here and why wouldn't that then encompass the
Florida statute, which requires more than, say,
a tap on the shoulder?
MS. BRYN: Because what the Court did
before applying the standard to the statute -to the Florida battery statute was to
definitively construe the words that -
JUSTICE KAVANAUGH: Well, but it -but it's -MS.
BRYN: -- Congress used in the
JUSTICE KAVANAUGH: But it -- as you
point out, it's -- it's a bit general, those
statements, that language. And so how do we
understand what the Court meant by that? You
look at how it applied it, and it was to a
battery statute, and it was a case where the
government argued that the mere tap on the
shoulder was okay. And the Court said no,
that's not enough. But all it seemed to carve
out was that kind of statute. At least as I
read page 139 of the Curtis Johnson opinion, it
seemed to very carefully distinguish those two
Well, there ya go.
If you're looking for a good event and a chance to mingle with the local judges, please come to the Federal Bar Association's function tomorrow night at the Four Seasons at 5:30. Tickets here. The FBA is honoring Judge Alan Gold, one of the District's heroes.