Ban on Gun Possession by Defendants Convicted of a “Domestic Violence Misdemeanor”

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Federal law makes it illegal for a person to possess a gun after having been “convicted in any court of a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” is a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by” a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). In North Carolina, the most common misdemeanor charges used in domestic violence cases are simple assault and assault on a female. Is a person convicted of one of those crimes as a result of domestic violence prohibited from possessing a gun?

One might think not, on the theory that neither simple assault nor assault on a female “has, as an element” any particular relationship between the defendant and the victim. But in United States v. Hayes, __ U.S. __, 129 S.Ct. 1079 (2009), the Supreme Court held that while a domestic relationship between the defendant and the victim of the prior domestic violence crime must be established beyond a reasonable doubt in order to convict a defendant under section 922(g)(9), a domestic relationship need not be an element of the prior conviction. In other words, it interpreted the “has, as an element” language in section 921(a)(33) to apply only to the phrase “the use or attempted use of physical force, or the threatened use of a deadly weapon,” and not to the part of the definition of “misdemeanor crime of domestic violence” directed to the relationship between the defendant and the victim.

But there is another legal issue here. In United States v. White, 606 F.3d 144 (4th Cir. 2010), the Fourth Circuit reversed a conviction under section 922(g)(9) where the defendant’s predicate misdemeanor was a Virginia conviction for “domestic assault and battery.” The court reasoned as follows. (1) Virginia follows the common law of assault and battery, under which offensive touching, no matter how gentle, is a battery. (2) Offensive touching that doesn’t cause or risk physical harm doesn’t constitute “physical force” as required by the definition of “misdemeanor crime of domestic violence” in section 921(a)(33). (The court acknowledged a circuit split on this issue, but felt bound by Johnson v. United States, __ U.S. __, 130 S.Ct. 1265 (2010), in which the Supreme Court held that a Florida battery was not a “violent felony” for purposes of the Armed Career Criminal Act because it did not require “physical force,” which the Court construed to mean violent force.) Therefore, a conviction for “domestic assault and battery” does not automatically qualify as a misdemeanor crime of domestic violence. (3) The court then applied a “modified categorical approach” that allowed it to consider not only of the definition of the Virginia crime, but also “the trial record – including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” However, the sparse state record did not allow the court to determine whether the defendant’s prior conviction involved mere unconsented touching or something more, so the conviction could not serve as a predicate to the federal conviction under section 922(g)(9).

So, how might White apply to North Carolina offenses like simple assault or assault on a female? Like Virginia, North Carolina does not have a statutory definition of “assault.” Instead, the meaning of the term is established by common law. Jessica Smith, North Carolina Crimes 84 (6th ed. 2007). And although most of the relevant cases are either very old or unpublished, it appears that any unconsented touching is a battery, and that any battery is an assault. See, e.g., State v. West, 146 N.C. App. 741 (2001) (noting that “[a]ssault on a female may be proven by finding either an assault on or a battery of the victim,” and defining battery as any “unlawful touching” or the application of “any force, however slight” to the victim). See also State v. Williams, 2008 WL 4635507 (N.C. Ct. App. Oct. 21, 2008) (unpublished) (“[The victim] testified that defendant touched her several times and that the touching was unwanted. Since the evidence indicates an actual battery took place, the State had no burden to prove the victim was put in fear or apprehension of harmful or offensive contact.”); State v. Clay, 2005 WL 3046634 (N.C. Ct. App. Nov. 15, 2005) (unpublished) (“[I]f a criminal defendant intentionally touches or applies force to another in a manner that is neither consensual nor privileged, that defendant has committed a battery and, necessarily then, an assault.”); State v. Bozeman, 2005 WL 2277055 (N.C. Ct. App. Sept. 20, 2005) (unpublished) (“At trial the State presented [evidence] that defendant had poked Farrar, clearly applying force to her person. There was no evidence presented that Farrar had authorized defendant to touch her or that defendant was in some way privileged to do so. Therefore, defendant’s poking of Farrar was unlawful.”). But cf. State v. Hemphill, 162 N.C. 632 (1913) (“It may be true that every touching of the person of another, however slight or trifling the force may be, if done in an angry, rude, or hostile manner, will constitute an assault and battery, but not so if there was no intention to hurt or injure, and it was so understood by the other party, and there was in fact no injury.”); State v. Corbett, 196 N.C. App. 508 (2009) (holding that simple assault is not a lesser included of sexual battery, and arguably suggesting that a mere unwanted touching isn’t an assault unless it involves the possibility of injury or bodily harm) (citation added after post originally published).

Further evidence that a non-violent but unconsented touching is an assault under North Carolina law comes from our pattern jury instructions. The basic pattern jury instruction for simple assault is N.C.P.I. – Crim. 208.40. It defines an assault as “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” It doesn’t refer to battery at all. But in 2010, a new pattern jury instruction, N.C.P.I. – Crim. 208.41, was promulgated, to be used in assault cases “involving physical contact.” It reads in part:

Provided there is a battery involved, choose the most appropriate definition of assault as follows: (An assault is an intentional application of force, however slight, directly or indirectly, to the body of another person without that person’s consent.) (An assault is an intentional, offensive touching of another person without that person’s consent.)

Thus, N.C.P.I. – Crim. 208.41 supports the idea that any unconsented touching constitutes an assault under North Carolina law, even if the touching does not involve violent force. So I don’t think that North Carolina convictions for simple assault or assault on a female arising in a domestic setting are automatically “misdemeanor crime[s] of domestic violence” under federal law, at least under the Fourth Circuit’s interpretation.

However, I believe that the vast majority of such assaults will qualify as misdemeanor crimes of domestic violence under the “modified categorical approach.” The AOC arrest warrant form for simple assault is AOC-CR-102. The charging language states that the defendant did “assault and strike” the victim. (Likewise, the charging language for assault on a female states that the defendant did “assault and strike” the victim.) It seems to me that under the modified categorical approach, the use of the word “strike” is sufficient to imply the use of violent force. The Court’s opinion in Johnson hints at that conclusion, and in any event, Webster’s New World Collegiate Dictionary (4th ed. 2007) defines “strike” as “to hit with the hand or a tool, weapon, etc.; smite . . . to give a blow to; hit with force. . . . [or to cause] violent or forceful contact.” Even if “strike” doesn’t do the trick, the form includes room for a description of the assault, e.g., “by hitting her on the head with his fist,” which may establish the required violent force.

The upshot is that even after White, most defendants convicted of simple assault or assault on a female arising out of a domestic dispute are likely barred by federal law from owning a gun. And judges, when asked to return guns to such defendants under G.S. 50B-3.1(f) (allowing for the return of firearms surrendered pursuant to a domestic violence protective order once the order expires and all criminal charges have been addressed), should refuse when the charging documents in the defendant’s assault case reflect the use or threat of violent force.

8 comments on “Ban on Gun Possession by Defendants Convicted of a “Domestic Violence Misdemeanor”

  1. today there was a horrible mass school shooting.People are crying about tough gun laws.I agree.But i dont agree that a single domestic altercation..should forever ban a person from gun ownership,nor do i believe that a felon shouldnt be allowed gun a country where everybody else can have one to shoot at you with.This means anybody can get mad at you,want you out,claim you hit them,move their new boyfriend in,take all of your posessions,threaten to kill you when you get out,and you are basically defenseless.Now i’m not talking about owning an ak47/0r ar15..uzzi..etc.just a .22/rifle..for example..It is way to easy to get convicted of these things..with little or no proof whatsoever…and the courts let you see your lawyer 15 seconds before your case.You cant use any character whitnesses,or use the claimaints past unstableness or police records(no matter what) as a defense.You are automatically guilty!what about servicemen,or policemen?there should be something better than America! and if you owned a firearm,and didnt use it in a domestic assault situation,is that not proof you can be trusted with not using it to harm your spouse?what if your accuser after a few years finally gets a conscience and recants,what then?

    • I as well can agree with this statement. I am a law abiding citizen who was involved in a two year relationship that ended in a quite rough, abrupt manner. I had gotten in a verbal argument with my partner at the time and the neighbors called the Sheriffs Dept bc of the noise. I just wanted to leave. I could not leave because she had taken my keys and was making me chase her around the house to get them so I could escape the madness. I got up to her and restrained her and got the keys away and was trying to get out, and when I ran to my car I got handcuffed by the waiting officers who I did not know were outside. I told them the situation, and they did not believe me. I was arrested and found guilty of domestic assault because I touched her when I tried to get my keys back on her hand and arm. Im now unable to ever own a firearm again or hunt with one. I was an avid target shooter and occasional hunter. I have never been in trouble at all before this and now I got threw under the bus before I even knew what happened.

      • thats sounds about like my case. i cant stand hunting with a bow!!!!! and never did up untill 4 years ago. i get an assult on female charge, cant own a gun anymore. but i recieved custody after divorce of my 8 month old son. because they found me stable . financially and mentally. but not her. so can i get my 30/30 back and hunt NO. and its embarrising knowing thats on my record. has anybody succesfully had this espunged in nc.

  2. The convicted person will have a 7 year probation period. You may then go and get the charges expunged off of your record. This is the only way to get your gun rights back. This is the way I read the law anyway.

  3. Yes but then it fall under the federal life time band. Like myself I have expungements all day long and in my State and in most state they allow and restore your rights back the state does. But the federal come and stick there big noise in it. Lautenberg Amendment the guy from NJ did that and they wont remove it. ATF use to have a program for it but they wont fund it. When a guy by the name of Bean V BATF try to go to the supreme court they basically laugh in his face and said they are not required to Thomas did that.

  4. Also Congress has not allowed money to fund the program for BATF. The law was effective September 30, 1996. However, the prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the law’s effective date. Petition the Bureau of Alcohol, Tobacco and Firearms for restoration. However, this currently may be a waste of time because Congress is not allowing the U.S. Treasury to use funds to process applications.

  5. A recent U.S Supreme Court case, United States v. Castleman, 572 U.S. __ (2014) centers on the “use…of physical force” requirement of the Lautenberg Amendment and whether the underlying misdemeanor’s definition and elements must include a domestic relationship.

    Castleman notes in Footnote 1 that “…’domestic violence’ a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” It specifically notes that, with respect to the Lautenberg Amendment, a misdemeanor crime of domestic violence need not contain in its definition a domestic relationship between the defendant and the victim, so long as the federal prosecution proves that such a relationship existed at the time of the assault.

    Castleman also indicates, as noted by Justice Scalia in his concurring opinion, that the majority “…treats any offensive touching, no matter how slight, as sufficient.” Since the common law definition of assault includes any offensive touching, including constructive touching, and since VAWA (the Violence Against Women Act) monies encourage and enable prosecutors to pursue any allegation of assault against a female, the courts will soon be even more clogged with 50B, 50C and 14-33(c)(2) cases.

  6. Franklin County denies gun permit applications even for misdemeanor charges (not convictions) with no connection to domestic violence, and for offenses for which a conviction would carry a maximum sentence of 120 days. This does not seem to square with the NC gun control law. The Sheriff is apparently a law unto himself here.

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