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SCOTUS: Misdemeanor with recklessness mens rea can be a “misdemeanor crime of domestic violence”

Voisine v. United States, USSC No. 14-10154, 2016 WL 3461559, 579 U.S. ___ (June 27, 2016), affirming United States v. Voisine, 778 F.3d 176 (1st Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. § 922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use … of physical force.” 18 U.S.C. § 921(a)(33)(A). Resolving a question that United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014), left unanswered, the Court, by a 5-to-2 vote, holds that misdemeanor assault convictions for reckless conduct (as contrasted to knowing or intentional conduct) trigger the statutory firearms ban.

The Court relies on both the statutory text and the history of the statute to reach its conclusion. The textual analysis turns on the phrase “use … of physical force,” and more precisely on “use,” the ordinary definition of which is the “act of employing” something. Cf. Castleman, 134 S. Ct. at 1415. While that “common understanding” means the force involved in a qualifying assault must be volitional,

the word “use” does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Or, otherwise said, that word is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.

(Slip op. at 5-6). This is consistent with Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), which construed a different statute referring to “use” of physical force to require “active employment” of force. The “active employment” requirement meant the statute didn’t cover negligent or merely accidental conduct because “it is [not] natural to say that a person actively employs physical force against another person by accident.” Id. But reckless behavior involves acts undertaken with an awareness of the risk of harm to others, so the harm reckless conduct causes is the result of a deliberate decision to endanger another and is no more an “accident” than if the “substantial risk” were intended or practically certain to result. (Slip op. at 6-7).

The historical analysis turns on the fact that when Congress created the “misdemeanor crime of domestic violence” firearm bar in 1996, a majority of jurisdictions defined misdemeanor assault or battery offenses to cover reckless infliction of bodily harm. “So in linking § 922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct.” (Slip op. at 8-9).

The Court declines Voisine’s invitation to look to assault and battery as defined by common law, which he argues required more than recklessness. (Slip op. at 9-10). But the backdrop of Congress’s lawmaking in 1996 was the state-law codifications, not a common-law “legal anachronism.” “And anyway, we would not know how to resolve whether recklessness sufficed for a battery conviction at common law. Recklessness was not a word in the common law’s standard lexicon, nor an idea in its conceptual framework; only in the mid- to late–1800’s did courts begin to address reckless behavior in those terms.” (Slip op. at 10-11).

Justice Thomas dissents, making a lengthy argument that “use of physical force” requires intentional conduct. (Dissent at 2-16). (Justice Sotomayor joins this part of the dissent.) He also argues § 922(g)(9) is already very broad, and construing it to include reckless conduct extends the statute into “constitutionally problematic territory” in light of the current Second Amendment jurisprudence. (Dissent at 16-18).

No Wisconsin court, and no federal court in the Seventh Circuit, has addressed whether a Wisconsin crime with a mental state less than intentional or knowing qualifies under § 921(a)(33)(A), so this decision works no change in state or circuit precedent on that topic. Moreover, On Point’s (admittedly quick) search didn’t turn up a Wisconsin misdemeanor with a reckless mental state that would likely qualify as a crime of domestic violence. The misdemeanors typically used in domestic violence cases either require intent (battery under § 940.19(1)) or lack a mental state entirely (disorderly conduct under § 947.01). Battery has been found to be a misdemeanor crime of domestic violence in unpublished decisions in Wisconsin’s Eastern District federal court. United States v. Pierotti, No. 13-CR-042, 2013 WL 2634403 (E.D. Wis. June 11, 2013); United States v. Price, No. 12–CR–238, 2013 WL 257218 (E.D. Wis. Jan. 23, 2013); United States v. Marciniak, 10–CR–184, 2011 WL 124299 (E.D. Wis. Jan. 14, 2011). But what about DC? There isn’t yet an answer to that question. In Marciniak and Price the defendants had also been convicted of DC, but because the defendants had battery convictions the court didn’t decide if DC is a misdemeanor crime of domestic violence. State decisions addressing whether a DC results in a firearm possession bar (see herehere, and here) haven’t addressed the mental state issue. This decision does, however, seem to open the door for an argument that DC isn’t covered by § 921(a)(33) because the “violent” conduct element requires no mental state—not intent, not knowledge, not recklessness—with respect to the harmful consequences of the volitional conduct.

A final point for federal practitioners: Castleman, 134 S.Ct. at 1414 n.8, noted that the federal courts of appeals construing various federal statutes referring to “use” of physical force “have almost uniformly held that recklessness is not sufficient.” The Seventh is among those courts. Jimenez-Gonzalez v. Mukasey, 548 F. 3d 557, 560 (7th Cir. 2008), held that a reckless crime isn’t a “crime of violence” under 18 U.S.C. § 16(b), citing Leocal‘s reasoning that the use of physical force requires “active employment” and therefore requires a higher degree of intent than negligent or accidental conduct. Looks like those many holdings will be open to challenge based on the Court’s reasoning here.

{ 1 comment… add one }
  • Peter Heyne June 28, 2016, 11:45 am

    Per Leocal v. Ashcroft, mere negligence is not enough to trigger the ban. E.g., “Conduct like stumbling (or in our hypothetical, dropping a plate) is a true accident.” Slip. op. at 7. But what about *criminal* negligence?

    Say a person were convicted of § 941.20 Endangering safety by use of dangerous weapon, which can be a class A misdemeanor, and the victim was in a domestic relationship. Though not likely relevant to federal law, per Wis. Stat. § 973.055(1)(a)1, the Domestic Abuse Surcharge can then apply. (By my count, this is the only state offense eligible for the DV surcharge whose mens rea is negligence).

    Domestic Abuse Surcharge or no, would a conviction for Endangering safety by use of dangerous weapon as a misdemeanor not trigger the federal firearms ban? This crime, by definition, is not a true accident. Is not criminal negligence closer to recklessness?

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