U.S. Supreme Court Decides What Constitutes Domestic Violence

Today, in the matter of U.S. v. Castleman, 12–1371, the U.S. Supreme Court issued its decision relating to what constitutes a “misdemeanor crime of domestic violence.”

The brief background is that in 2001 Mr. Castleman pled guilty in Tennessee to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b). In 2008, the ATF learned that he was selling guns, allegedly on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and several other charges. His attorney then moved to have the charges dismissed because his Tennessee “conviction did not qualify as a ‘misdemeanor crime of domestic violence’ because it did not ‘ha[ve], as an element, the use . . . of physical force,’ § 921(a)(33)(A)(ii).” The District Court agreed, holding that “the ‘use of physical force’ for §922(g)(9) purposes” must entail “violent contact with the victim.” The court held that a conviction “under the relevant Tennessee statute cannot qualify as a ‘misdemeanor crime of domestic violence’ because one can cause bodily injury without ‘violent contact’—for example, by ‘deceiving [the victim] into drinking a poisoned beverage’.” A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the decision but held that its rationale was based on “the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines ‘violent felony’.”

The Supreme Court, in reversing the Trial Court and Sixth Circuit, held that it attributes “the common-law meaning of ‘force’ to §921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’ as an offense that ‘has, as an element, the use or attempted use of physical force.’ We therefore hold that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.” While this portion, in essence, makes sense given the statutory language, the Court then decides to define “physical force,” and in so doing, redefines, in the context of domestic violence, absent any Legislative intent, what constitutes physical force.

To begin the Court starts by stating, “‘Domestic violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” (Really? So if Steve pulls my hair and is convicted, since we aren’t domestic partners, he isn’t prohibited; but if Steve pulls his girlfriend’s hair, he is prohibited – yeah that sounds like Equal Protection under the law). The Court then provides an example of what all is encapsulated by physical force: “‘[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,’ such as a laser beam” and then holds that “It is impossible to cause bodily injury without applying force in the common-law sense.” (Really? See below for Justice Scalia’s take on this broad sweeping approach). The Court goes on to state that “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting” and then declares:

the Seventh Circuit noted that it was “hard to describe . . . as “violence” “a squeeze of the arm [that] causes a bruise.” Flores v. Ashcroft, 350 F. 3d 666, 670 (2003). But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a “misdemeanor crime of domestic violence.”

This is consistent with the Pennsylvania Commonwealth Court’s decision in PSP v. McPherson, 831 A.2d 800 (Cmwlth. 2002) (holding that a misdemeanor disorderly conduct guilty plea (without any hearing) can prohibit an individual pursuant to 18 U.S.C. 922(g)(9)).

It is important to note that the Court dismissed any argument under the Second Amendment, as the constitutionality of 922(g)(9), either facially or as applied to him, was not argued by Castleman.

Justice Scalia’s concurring opinion is somewhat entertaining (as always). While he agrees in the result, he raises grave concern with the Court’s new definition of physical force –

Unfortunately, the Court bypasses that narrower interpretation of §921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition cannot be squared with relevant precedent or statutory text.

In reviewing the Legislative debate and intent, Justice Scalia states:

I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of “domestic violence” that included the slightest unwanted touching.

Justice Scalia, in true Scalia-fashion, then informs us of his true feelings about the Court’s decision

That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of “domestic violence” from the period surrounding§921(a)(33)(A)(ii)’s enactment.

He then goes on to raise concern with the amicis’ definitions of domestic violence and where it may lead the Court in the future

amici’s definitions describe as “domestic violence” acts that “humiliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and controlling with whom she has contact.” Brief for National Network to End Domestic Violence et al. as Amici Curiae 5–8, and nn. 7, 11.


The offerings of the Department of Justice’s Office on Violence Against Women are equally capacious and (to put it mildly) unconventional.Its publications define “domestic violence” as “a pattern of abusive behavior . . . used by one partner to gain or maintain power and control over another,” including“[u]ndermining an individual’s sense of self-worth,” “name-calling,” and “damaging one’s relationship with his or her children.” See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court’s case file).

After acknowledging, as all of us do, that there is nothing more abhorrent than violence against women (and men), he declares in relation to the amici – But when they (and the Court) impose their all embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. (emphasis added)

Clearly, the issue of domestic violence is an issue that requires attention; however, the pendulum went from the absence of action to the overall encompassment of everything being domestic violence. Why is it that Steve should be permitted to pull my hair and not become a prohibited person but if he pulls his girlfriend’s hair, he will become a prohibited person? Why do I deserve a lesser status as a victim? How are the laws applying equally to Steve, his girlfriend and myself? And lastly, last time I checked, it was the Congress that enacted laws, not the Supreme Court. In this decision, the Supreme Court has sought fit to define, in broad sweeping terms, the definition of physical force, which is an act that only the Congress should be empowered to undertake. The Court has gone way beyond interpreting the Legislative intent, as Justice Scalia properly notes.

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