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).
Lower court opinion: United States v. James Alvin Castleman, 695 F.3d 582 (6th Cir. 2012)
This case will be important to federal practitioners who handle prosecutions under § 18 U.S.C. 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined to include any federal, state, or tribal misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” 18 U.S.C. § 921(a)(33)(A). The Court’s decision will clarify the amount or degree of “physical force” needed for a misdemeanor crime of domestic violence to count under § 922(g)(9).
Though only a few circuits have addressed this issue, they have, not surprisingly, come to different conclusions. Some have held that any physical force is enough, so that state law crimes involving, for instance, intentional “offensive physical contact” even without injury could qualify as a misdemeanor crime of domestic violence. United States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006); United States v. Nason, 269 F.3d 10, 20 (1st Cir. 2001); United States v. Smith, 171 F.3d 617, 621 (8th Cir. 1999). Other circuits have held the quantum of physical force must be greater, typically requiring the “violent” use of force against another’s body. United States v. White, 606 F.3d 144, 153 (4th Cir. 2010); United States v. Hays, 526 F.3d 674, 677-81 (10th Cir. 2008); United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003). The Seventh Circuit has not addressed the meaning of “physical force” under § 922(g)(9), but has taken the approach of the latter group in interpreting another federal statute that defines a “crime of violence” as one with an element of “physical force.” De Leon Castellanos v. Holder, 652 F.3d 762 (7th Cir. 2011) (addressing 18 U.S.C. § 16(a)’s definition of “crime of violence” that precludes a removable alien from seeking cancellation of removal).
The lower court in this case joined the second camp. Following White, the court looked to the Supreme Court’s recent interpretation of the “violent felony” definition in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), because that definition also refers to a crime having an element of “the use, attempted use, or threatened use of physical force against the person of another.” Castleman, 695 F.3d at 585-87, citing Johnson v. United States, 559 U.S. 133 (2010). Johnson held that “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Because the Florida battery law at issue in Johnson could be violated by any intentional physical contact, no matter how slight, the Court held the crime does not have, as an element, the use of physical force and therefore was not a “violent felony” under the ACCA. But Johnson explicitly reserved the question at issue here, saying it was interpreting “physical force” “only in the context of a statutory definition of ‘violent felony.’ We do not decide that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue is not before us, so we do not decide it.” 559 U.S. at 143-44. The issue is now before them.
This case will also be important to state practitioners who need to advise clients facing state law criminal charges as to whether a conviction for a particular offense will qualify as a “misdemeanor crime of domestic violence” and so result in the loss of the right to possess a gun. As already noted, the Seventh Circuit hasn’t addressed the meaning of “physical force” under § 922(g)(9), and thus hasn’t definitively declared whether the Wisconsin statutes typically used in domestic violence cases–for example, §§ 940.19 and 947.01–are misdemeanor crimes of domestic violence, though two federal district judges have concluded (in unreported decisions) that battery and, in some instance, disorderly conduct, are covered by § 922(g)(9). United States v. Marciniak, No. 10–CR–184–LA, 2011 WL 124299 (E.D. Wis. Jan. 14, 2011) (unpublished); United States v. Price, No. 12-CR-238-JPS, 2013 WL 257218 (E.D. Wis. Jan. 23, 2013) (unpublished). By interpreting the specific language of § 922(g)(9) the decision in this case will give needed guidance as to which Wisconsin statutes are covered.