Circuit Split on "Misdemeanor Crime of Domestic Violence" Under 922(g)(9); 4th Cir. Says Domestic Relationship Must Be Element of Predicate Offense

As Howard Bashman reports, the Fourth Circuit held yesterday that in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense. The case is United States v. Hayes, No. 06-4087 (4th Cir. Apr. 16, 2007), and you can read a more complete summary of the opinion over at the Fourth Circuit Blog.

Note that the Fifth Circuit has held otherwise. United States v. Shelton, 325 F.3d 553 (5th Cir. 2003). And so has every other circuit to have previously addressed the question, according to the Hayes dissent. You know what that means: circuit split. So you might want to preserve the issue in the event that it piques the interest of the Supreme Court.