Thursday, April 03, 2014

Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

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