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SCOTUS: “Offensive touching” qualifies as a “misdemeanor crime of domestic violence” under federal gun law, 18 USC sec. 922(g)(9)

United States v. James Alvin Castleman, USSC No. 12-1371, 3/26/14, reversing and remanding United States v. Castleman, 695 F.3d 582 (6th Cir. 2012); case activity

As noted in our analysis of SCOTUS’s decision to grant certiorari, the issue in this case is:

Whether [Castleman’s] Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

Section 922(g)(9) bars the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” The statute defines “misdemeanor crimes of domestic violence” as:

an offense that . . . (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. §921(a)(33)(A).

The court’s first task was to define the phrase “physical force.” It adopted the common law definition from Johnson v. United States, 559 U.S. 133 (2010), which means that “the requirement of ‘physical force’ is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.” Slip op. at 10. In other words, offensive touching is enough. Next the court turned to Castleman’s indictment. Because he pleaded guilty to having intentionally or knowingly causing bodily injury to the mother of his child, which necessarily involves the use of physical force, the crime qualified as a “misdemeanor crime of domestic violence” under § 922(g)(9). Slip op. at 12.

As noted in our prior post, this case is important for lawyers advising clients facing state criminal charges that might qualify as a “misdemeanor crime of domestic violence” and thus result in the loss of the right to possess a gun. Under Castleman, a conviction under Wis. Stat. § 940.19 (battery) would seem to qualify, but it’s less clear whether a conviction under § 947.01 (disorderly conduct) does. Again, see our prior post listing unreported district court opinions that have found certain disorderly conduct convictions fall within § 922(g)(9).

This was a unanimous decision with two concurring opinions. The concurrence worth reading, depending on your mindset, is Scalia’s. In a domestic violence case, you don’t expect to see sarcasm—at least not aimed at organizations advocating for victims of domestic violence. See page 10 of the concurrence.

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