The U.S. Supreme Court recently issued an opinion that may significantly expand the class of Californians prohibited for life from possessing a firearm. Persons who have been convicted of state domestic violence misdemeanors may now fall under the federal ban, even though they did not under prior case law.
United States v. Castleman, 14 DJDAR 3787 (March 26, 2014), concerned a 1996 amendment to the longstanding federal law that bars felons from possessing guns. Because of the particular danger presented by the combination of domestic strife and firearms, Congress expanded that prohibition to anyone convicted of "a misdemeanor crime of domestic violence." 18 U.S.C. Section 922(g)(9). If in possession of a firearm, such a person may be convicted of a federal felony carrying a sentence of up to 10 years imprisonment.
Since the 1996 amendment, courts have struggled to determine exactly which particular state convictions constitute a "domestic violence" misdemeanor, as the 50 states prosecute domestic violence in a host of ways, and many domestic violence cases are prosecuted under general battery statutes. Castleman resolved a deep conflict over what level of "violence" is necessary for a prior conviction to be covered by the law.
As background, it is important to know that the federal law requires that the misdemeanor statute of conviction categorically demand the requisite amount of violence; the particular facts of a defendant's conviction do not matter. That is, for a particular state crime to qualify, every conviction of that crime must require the needed quantum of violence. In the words of the statute, the misdemeanor domestic violence crime must have "as an element, the use or attempted use of physical force." 18 U.S.C. Section 921(a)(33)(A) (emphases added). (The crime alternatively could require as an element "the threatened use of a deadly weapon," but this was not at issue in Castleman.)
James Alvin Castleman had been convicted in Tennessee of a misdemeanor that required that he knowingly "caused bodily injury" to the mother of his child. Later, he was prosecuted federally for violating Section 922(g)(9). The 6th U.S. Circuit Court of Appeals held the conviction invalid, finding that the "physical force" requirement that applies to Section 922(g)(9) demanded proof of the use of "violent force."
In that court's view, because a person could be convicted under the Tennessee statute for causing a "slight, nonserious physical injury with conduct that cannot be described as violent," the Tennessee crime was not categorically a misdemeanor crime of domestic violence. That is, for example, Castleman could have been convicted under the misdemeanor statute for causing an injury such as "a paper cut or a stubbed toe ... using less than strong physical force." As such a conviction would not involve violent force, the statute categorically failed to qualify as a predicate for a federal prosecution.
Justice Sonia Sotomayor's opinion for the Supreme Court reversed the 6th Circuit. The court held that the "physical force" requirement applying to Section 922(g)(9) incorporates the common law meaning of force, meaning merely "offensive touching." The law does not require "violence" in the commonly used sense. Sufficient force could be, for instance, "a squeeze of an arm that causes a bruise." Indeed, the court held that where bodily injury was required under a state statute - as it was with Castleman's Tennessee conviction - that alone demonstrates that physical force was required.
Castleman had argued that his misdemeanor did not categorically require force because there were hypothetical ways that he could have been convicted for causing bodily injury without even making contact with his victim, such as deceiving the victim into drinking poison or infecting the victim with a disease. Citing common law battery cases and a leading treatise, however, the Supreme Court reasoned that even such scenarios involved physical force. "It is impossible to cause bodily injury without applying force in the common-law sense Sotomoyor wrote.
Castleman may have significant implications in California. Like the 6th Circuit's law that was reversed, 9th Circuit law held that the "physical force" requirement applying to Section 922(g)(9) "means the violent use of force against the body" of the victim. United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003). Due to this violence requirement, various statutes from other states have failed to qualify categorically as misdemeanor domestic violence crimes in the 9th Circuit, as they could have involved nonviolent contact. While the 9th Circuit never squarely applied this law to the California misdemeanor statutes used to prosecute domestic violence, it is clear that those statutes did not qualify under the circuit law.
In California, a felony domestic violence conviction means that the defendant has caused the victim "traumatic injury," per California Penal Code Section 273.5. Misdemeanor domestic violence defendants, however, generally are convicted of either simple battery (Penal Code Section 242) or the state's misdemeanor domestic violence statute, which also expressly requires a battery (Penal Code Section 243(e)(1)). For such battery statutes, California appellate courts have stated that "[e]ven though the statutory definition of battery requires 'force or violence,' this has the special legal meaning of a harmful or offensive touching." People v. Page, 123 Cal. App. 4th 1466, 1474 n.1 (2004). Because "the least touching" may constitute battery, "[t]he word 'violence' has no real significance." People v. Mansfield, 200 Cal. App. 3d 82, 87-88 (1988). For instance, the state Supreme Court has held that spitting on another person is sufficient to constitute a Section 242 battery. People v. Hamilton, 45 Cal. 4th 863, 934 (2009). Given this state case law, 9th Circuit law previously precluded Section 922(g)(9) prosecutions of persons convicted of California misdemeanor domestic violence crimes.
After Castleman, though, such prosecutions may now be possible. To preclude such a conviction, a defendant would have to point to some aspect of California law that takes a misdemeanor domestic violence crime outside of even the mere "offensive touching" requirement in Castleman (for example, that the absence of the "bodily injury" requirement found in the Tennessee statute in Castleman makes a meaningful difference.)
The next indication of the interplay between Section 922(g)(9) and California domestic violence misdemeanors may soon be coming from the state Supreme Court, which has granted review on the issue. Last year, the Court of Appeal divided on what was in essence the Castleman issue, though it arose in state civil court.
In Shirey v. Los Angeles County Civil Service Commission, 216 Cal. App. 4th 1 (2013), the 2nd District Court of Appeal dealt with a claim by a former deputy sheriff that he was improperly discharged after his employer determined he was unable to legally carry a firearm under Section 922(g)(9) due to his 1994 domestic violence conviction for simple battery. The court granted the plaintiff relief, citing to 9th Circuit law and holding that because the Section 242 conviction could have been for a "mere touching," the crime was not necessarily violent and therefore was not a misdemeanor crime of violence.
In contrast, in James v. State, 162 Cal. Rptr. 3d 580 (2013), the 5th District Court of Appeal denied a similar claim by an applicant for a deputy sheriff position seeking to order a department to consider him for employment despite his 1996 misdemeanor domestic violence conviction pursuant to Section 242, which the department believed precluded him from carrying a firearm under federal law. The court rejected the 9th Circuit's interpretation of the law and held, similar in its conclusion to the U.S. Supreme Court's later ruling in Castleman, that the touching required for a battery was sufficient to constitute a misdemeanor crime of domestic violence under federal law, precluding the applicant from carrying a gun.
On Jan. 15, the state Supreme Court granted review in James (which has the effect of depublishing that opinion.) The court deferred any action in the case until after the U.S. Supreme Court disposition of Castleman, and James remains pending.
Those convicted of California domestic violence misdemeanors lose their firearm possession right for 10 years under state law, per Penal Code Section 29805. But they may lose that right for life under Castleman's interpretation of federal law. The state Supreme Court's actions in James may be the next step toward clarifying whether that is in fact the case.
Michael J. Raphael is a judge of the Los Angeles County Superior Court.
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