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By Lance J. Rogers
The U.S. Supreme Court announced Oct. 30 that it will take up the question of whether the federal law making it illegal for anyone to possess a gun if they have been convicted of a “misdemeanor crime of domestic violence” applies to situations where the mens rea of the underlying state misdemeanor is recklessness.
The gun ban, often referred to as the Lautenberg Amendment, has been in place since 1996, but it has come under fire from gun rights advocates who argue that it makes it too easy for prosecutors to strip people of their Second Amendment rights depending on the factual nuances and quirks of domestic disputes and the way the states prosecute them.
Critics of 18 U.S.C. § 922(g)(9) say using a state misdemeanor conviction to make gun ownership a crime can be problematic because states have varying mens rea requirements.
“One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, Sacramento, Calif.
Writing for the conservative blog Crime and Consequences, Scheidegger said “the wide variety of ways that crimes are defined in the 50 states” is a recurring problem in both gun possession law and recidivist sentencing in general.
This is the crux of the petitioners' argument in Voisine.
One thing the court won't be addressing is whether these types of restrictions violate the constitutional right to keep and bear arms.
The petition for certiorari argued more broadly that the federal gun control law infringed the petitioners' Second, Fifth and Sixth amendment rights and was being given unconstitutional retroactive effect.
But the justices expressly limited their review to the mens rea issue.
“The lower federal courts have all said that these restrictions don't violate the Second Amendment and I think the Supreme Court isn't interested in weighing in on that bigger issue,” said Mike McLively, an attorney at the Law Center to Prevent Gun Violence in Oakland, Calif.
In an interview with Bloomberg BNA, McLively said that his gun-safety advocacy group was relieved to see that the court will be leaving the constitutional issue alone and limiting its review to a “fairly narrow statutory interpretation.”
Stephen Voisine and William Armstrong III contend that their convictions don't qualify as a violation of the federal gun law because the state statute they violated can lead to a conviction even though the conduct is merely reckless instead of intentional.
That is not the result that Congress intended, they say.
The First Circuit disagreed and upheld their federal convictions (96 CrL 505, 2/11/15).
18 U.S.C. § 921(a)(33) provides:
(A) Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means 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.
Writing for the three-judge panel, Chief Judge Sandra L. Lynch said, “§922(g)(9) is meant to embrace those seemingly minor predicate acts, occurring sometimes in moments of passion, where the perpetrator consciously disregarded a risk in light of known circumstances.”
That sometimes includes “squeezing and shoving,” Lynch added.
In its brief, the government points to statements by the bill's sponsor, the late Sen. Frank Lautenberg (D-N.J.), who suggested the law would come into play where domestic arguments “get out of control” and one partner commits assault “almost without knowing what he is doing.”
The U.S. Supreme last term in United States v. Castleman, 2014 BL 82572 (U.S. 2014) (95 CrL 5, 4/2/14), held that a conviction under a state assault law for an offensive touching that resulted in bodily injury qualified as a domestic violence conviction under the federal gun law, However, the court expressly left open the question whether the federal ban applies to convictions under state assault laws that cover mere reckless conduct.
Maine's domestic violence statute, makes it illegal to “intentionally, knowingly, or recklessly, cause bodily injury or offensive physical contact” to a family or household member.
According to the briefs filed in this case, Voisine's girlfriend called 911 after he got drunk and slapped her in the face. She told police it wasn't the first time this had happened.
Armstrong pleaded guilty after he pushed his wife and struck her hard enough to leave a red mark.
“In Castleman, the court said that it would leave the mens rea issue for another day,” McLively said, “and now it's saying that day has arrived.”
If the court ends up siding with Voisine and Armstrong, the result may limit the types of state domestic violence convictions that prevent convicted abusers from possessing a gun.
“But I don't think we're going to see any major policy shift,” McLively predicted.
No date has yet been set for oral argument.
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