Does a misdemeanor crime with the mens rea of recklessness qualify as a “misdemeanor crime of domestic violence,” as defined under 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?
Under 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9), a person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing firearms. The question in this case is whether a misdemeanor crime of domestic violence may be a crime defined with a mental state of recklessness rather than intent. The Court expressly left this question open in United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014), after noting that the federal Courts of Appeal “have almost uniformly held that recklessness is not sufficient,” the lone exception being the First Circuit, whence this case comes.
The case involves two men, Voisine and Armstrong, who were convicted in federal court based on convictions under Maine law for simple assault and misdemeanor domestic violence assault, respectively. The Maine assault statute can be violated by conduct that is reckless rather than intentional. The First Circuit Court of Appeals held recklessness is sufficient, pointing to the absence of a specific mens rea requirement in § 922(g)(9) and concluding recklessness isn’t inconsistent with Castleman‘s holding that the statute’s phrase “use of physical force” incorporates the common-law meaning of “offensive touching.” 778 F.3d at 182-86. A dissenting judge, by contrast, concludes that other circuits (including the Seventh, albeit in a case involving a different federal statute) have correctly decided that “use” of physical force requires intentionality, and that Castleman itself suggests the same conclusion. 778 F.3d at 187-217.
Apart from resolving the (lopsided) circuit split on the question, the Court’s decision could be very important to state practitioners because it will tell us whether a state law crime involving reckless conduct will qualify as a “misdemeanor crime of domestic violence,” conviction for which will result in the loss of the right to possess a gun. No Wisconsin court, and no federal court in the Seventh Circuit, has addressed whether Wisconsin crimes with a recklessness mental state will qualify; instead, they’ve dealt with the state statutes typically used in domestic violence cases–e.g., §§ 940.19 and 947.01–are misdemeanor crimes of domestic violence. (For more on those offenses, see here, here, here, and here.) Battery, of course, requires intent; disorderly conduct doesn’t, as it lacks an explicit mental state requirement. If the Court limits misdemeanor crimes of domestic violence to crimes with an express element of intent, DC might no longer qualify.
A final note: The Court agreed to review only the recklessness question; it declined to review the second question presented by Voisine’s petition—namely, whether the ban on possession of firearms by individuals convicted of misdemeanor crimes of domestic violence violates their rights under the Second and Sixth Amendments if the predicate offenses that led to the federal ban don’t themselves have domestic violence as an element. For more on this intriguing claim, which raises some of the same questions about § 921(a)(33)(A) that we raised here, see the petition (at pp. 8 to 23).