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

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.

28 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.

    • I agree i was robbed for my wife because my exwife lied on me to the police because i cheated on her and i got a gun permit and brought a fire arm.Later they took my rights because of that old case

  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.

  7. So let me get this straight. As a woman, I can accuse a man of assaulting me and if I am a good enough actress, with little or no evidence, his Constitutional Rights are taken away, he can possibly lose his career, and NOTHING happens to me? How under any circumstance is this considered justice? Violent crimes-absolutely. But a threat, a restraint to get away should never end someone’s life as they know it. It cheapens the system and makes women (and men) are the real victims of domestic violence look like Chicken Little declaring the sky is falling for no reason. Change the law and bring common sense back into the courtroom.

    • I am a woman too and I’ve known women to do this kind of thing. I had a friend who made the mistake of going to his girlfriends house, to confront her on the fact that she had been cheating on him. They got into a pushing match- after she had locked the both of them in the bathroom and backed him into a corner; screaming crazy things. He pushed her away from him, so he could leave. She pushed him back. He got to the top of the stair case to leave the apt. and she pushed him from behind. He turned as he was falling down the stairs and grabbed her ankle. She landed on her butt; on a carpeted stair. He left the apartment after that. She called the police and he was arrested for felony aggravated assault. No one was seriously injured. She actually initiated the hostile interaction. He just went there to confront her w/ the truth; and get her side of things. But because he went to her house, and was upset when he did, he’s now a monster for life. It’s bullshit really. He had a great career, and she was one of the craziest women I had ever met. It’s seems nuts to me. And the justice system hyper-inflates the issue; making it seem as though he is some kind of thug, and that’s not true. People will have problems, we’re human. But the government (judicial system) shouldn’t try to re-enforce their credibility by destroying others. They should be the level headed ones; they’re in a position of very real authority over others. But they believe everything they hear and automatically believe anyone who levies an accusation or distorts the truth. Yes, something CAN happen- and usually does- but there are other factors to a case; and they know that. They react w/ the same hysteria that some accusers do. “Take care, when in the pursuit of monsters, that you do not become one.”

    • Yep sure can. You can ask my adopted nut bag sister who pressed AoF on me about that worked great for her. Ruined my life for a long time couldn’t get jobs because it came up on background checks all sorts of shit. Cant even write correctly cause it pisss me off so much. Can never owe a gun to protect my wife and daughter with smh it ridiculous.

  8. I’ve been in this since 2004. This is one of the dumbest laws this country has ever adopted. This is what happens when people to approve laws don’t take time to read them. They were surprised to find that the law screwed up a lot of Gov’t and state offices since it took the rights away from policemen, FBI and every other gun toting law enforcement agency.

    I am a little confused on the part here from Virginia. Is this part saying the conviction in Virginia doesn’t count as a misdemeanor crime of domestic violence?
    That’s where my x got me in trouble with this. It was one big fabricated lie and I have proof, but seems nothing can be done about it.

    For years I have been trying to figure this out. As far as I know I only have the A&B in Virgina, and it’s so difficult figuring out if that A&B applies to this gun law. Seems the only real way to find out is to apply for a gun purchase, but going to jail for trying isn’t an option lol

  9. I chose to keep my mouth shut with another issue with my 19 yr old son who had issues that week. The day before he attacked his brother the police were called neither made a statement then he went after 3 guys cat calling his girl. The store clerk called the officer asked why he gets along with me. He then said he would Lee on his dad’s grave. This is a officer. But my son had been drinking the night before with other things. He chased me when the door I never installed one short brass screw and a screw so loss I pushed it in a old hole gave way the door fell. He thought I kicked it but I pushed it. So he chased me telling etc. Punched holes in my door. Of course there’s more but. I didn’t make a statement knowing how it would ruin a 19 year olds life for life. So I now have a dv conviction. The DA didn’t want truth or justice only convictions .each county and city gets hundreds of thousands to millions for the dv industry in there region. They all do plea deals with dv courses with huge staffing with sell paying jobs. The academic world has full control and there’s a lot of money involved. From what I learned if I shelled out $100,000 to $25,000 or more for a jury trial I could have been fine. How many Americans with false charges can afford to fight the district attorneys who are funded by the federal government. The district attorneys special dv units are elloted funds separate from the others like the courses offered by the courts. This is for real. It’s mind boggling how much money is dished out. How can a family issue be dealt with. The friendly neighborly sheriff doesn’t exist anymore.the hardest part for me was worrying if my sons would overdose. The spice time was so scary from what I saw it was a parents nightmare. I was trusting and that was the big mistake mainly with my oldest son still needs help. He will call for cigarettes or money and get mad when we say no. How mad our house and appliances have dings and holes still from his truck engine is blown. We only caught him once pushing the car out of the driveway when he was 15. But we learned he did it all. But u say punish with the law. He would be in prison for life now for what he’s done to us. For being a spoiled out of control bad kid. He isn’t evil he’s great with people and kids .he doesn’t hurt people but put a lot of holes in anger.we called once on him and it nearly ruined his life. He had a charge that fell into forgive me for not agreeing with folks wanting to control everyone. It’s out of control. There’s so much to say but I would have to write a essay or book.

  10. I 06 my ex took out an ex parte oder in north carolina ,there was no violence just an argument because she was drinking and called the law,I left the house which i owned and the next day i was served at work.Two weeks later i was with my 12 year old son,from a previous marriage and the two of us went to the mall to buy him a birthday gift,and spotted my now ex we turned and left ASAP,2 days later i was arrested for a violation spent the night in jail and bonded out.One year later went to court my ex had moved to another state on advise of my attorney i plead guilty, because he told me it was a simply misdemeanor and wasnt worth the cost to go to court 6 years later i went to get a pistol permit and was turned down because of this charge,what the hell i never touched or threaten anyone.Any advise

  11. I have been dealing with this for sometime now.I have a PJC assault on a female here in North Carolina. A result from a bad divorce in 1998. My ex did the same thing to me lie after lie. I even got custody of both my sons when they wee 16 years old. This is the only thing on my record.

    I remarried a great woman and have a 15 year old daughter. Never have I had any run-ins with the law. I have always hunted and had guns in my home.

    About 3 years ago we went on vacation. While we were gone some broke into our home and among other things all of our firearms were stolen.

    Guess what? I go to get my pistol purchase permit from the local sheriffs department and I am turned down.

    I do understand the reasoning behind the law but there are truly some of us that this law hurts.

    What do we do.

    • Sorry to hear that! My husband just found out 15 years after the incident which was all verbal, that he had lost his rights to own guns! We Were told we could get a lawyer adds try to get there guns! But it’s a federal thing nothing the state can do! Good luck let me know if you find anything different!

  12. My husband just left court after receiving a letter that pitt county had property of his! After 15 years they sent this letter! We figured it be his guns they took during a restraining order with his ex! When we went to court were found out he had a dv charge pitt on him! Never saw anything about it! A matter of fact we were together during the time this charge supposedly was filed! We just found out that he isn’t allowed to have guns now! After 15 years! During these years the ex and us have communicated and etc! No issues! Yet he had his rights taken away with out him even knowing about 15 years ago! Why they even sent us the letter i dont know! We figured the guns were gone! What we didn’t know was his rights to own guns were gone also! This is not fair to those that were used and mistreated by selfish and angry people!

  13. […] U.S.C. § 921(a)(33)]. The domestic violence crime definition is analyzed in Jeff Welty’s post here and will not be discussed […]

  14. […] This argument was based on United States v. White, 606 F.3d 144 (4th Cir. 2010), which I discussed here. The district court granted the motion and […]

  15. […] it is worth noting, as I did in this prior post on a different topic, that any unconsented touching seems to be a battery, and that any battery is […]

  16. I was arrested in 1992 (NJ) for simple assault my wife went to court the judge dismissed the case after attending counseling this was 25 years ago I’ am a licensed /ordained Christian minister looking next year to move to North Carolina, I been to the gun range several times I would like to purchase a rifle and pistol for my home would my prior offense prevent me from owning one even if I get my records sealed.

  17. Why does any of this matter?
    You can purchase a full AR-15 kit for under $450, and an unfinished lower receiver for $80. NEITHER have to be registered with the government. Get your head out of the sand and live free. Laws are for suckers who think the government is your friend and protector.

  18. How about being convicted of Criminal Domestic Trespass? And convicted for it on the first offense, like I was? Never nothing violent about it. I just had a very bad lawyer. I have been a Paramedic for over 13 years since my conviction serving the community. Why should I have my gun rights stripped over one incident of just being on his property, and not even disturbing anything, for one sole incident?

  19. Fuuny thing about this “Domestic Assault” crap …. If I walk down the street and walk up to any lady and slap her in the face, it is simple misdemeanor assault. If I walk up to my wife, now it’s a bigger crime and I cannot purchase a gun, lmao. So, you women on the street are worth a lot less and I can’t be charged as much as if I hit my wife. Next time I am mad in an argument with her and she assaults me, I will go out to the street and take my frustration out on someone woman I don’t know to get a lesser charge, Hahahahhahahaa.

    • You’re a idiot, you are part of all of us right minded gun prohibited people, hit my wife in the street and see how it works for you,
      Step-1-ambulance ride
      Step-2-backseat ride to jail

  20. I have a blog up on a related point. It is well-settled that most North Carolina assault offenses do not constitute crimes of violence.

    Since this blog went online, it was settled that misdemeanor assault on a female is not a crime of violence for the purpose of firearm purchases in the Fourth Circuit. United States v. Vinson, 805 F.3d 120 (4th Cir. 2015)

    • so i want to get a gun and ccw i have assault on a female from 2000 what can i do?