Goodbye Earl: Domestic Abusers and Guns in the Wake of United States v. Castleman-can the Supreme Court Save Domestic Violence Victims?

• Publication year: 2021

94 Nebraska L. Rev. 101. Goodbye Earl: Domestic Abusers and Guns in the Wake of United States v. Castleman-Can the Supreme Court Save Domestic Violence Victims?

Goodbye Earl: Domestic Abusers and Guns in the Wake of United States v. Castleman -Can the Supreme Court Save Domestic Violence Victims?

Bethany A. Corbin(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 102

II. Fistful of Love: Understanding Domestic Violence ...... 106

A. You Knocked the Love (Right Outta My Heart): Explaining Domestic Abuse ........................ 108

B. But Earl Walked Right Through That Restraining Order: Legal Responses to Domestic Violence ...... 110

C. If I Die Young: The Link Between Domestic Violence and Homicide ............................ 116

III. Love Without Tragedy: The Lautenburg Amendment Attempts to Save Women's Lives ...................... 118

IV. One Hit Leads to Another: Interpreting the Lautenburg Amendment's "Physical Force" Requirement .......................................... 125

A. Love Is a Battlefield: The Circuit Split ............. 125

B. Stuck in the Middle with You: The Supreme Court's Unprecedented Ruling on Domestic Violence ........................................... 129

1. I Knew You Were Trouble: Background and Procedural Posture of United States v. Castleman ..................................... 130

2. You Give Love a Bad Name: The Supreme Court Reverses ...................................... 132

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3. Can't Fight This Feeling Anymore: The Two Concurring Opinions ........................... 135

V. Can't Buy Me Love: An Analysis of Castleman and Suggested Strategies for Prosecutors and Defense Attorneys ............................................. 137

A. 'Cause I Like It That Way: Using Judicial Activism to Protest Violence ................................ 137

B. My Knight in Shining Armor Turned Out to Be a Loser in Aluminum: Why Castleman and Pending Legislative Initiatives Will Not Reduce Domestic Violence and Why Education is Critical in the Fight Against Domestic Abuse ........................... 140

C. The Heart of the Matter: Strategies for Prosecutors and Defense Attorneys ............................ 144

1. You Don't Mess Around with Jim: Prosecutorial Strategies ..................................... 145

2. Not Ready to Make Nice: Defensive Tactics ..... 146

VI. Conclusion ............................................ 149

I. INTRODUCTION

"How she realized at last that not even love could justify this, that no affection could, not ever. Still, in the glass, she sees her own mouth, opening and closing and silent as a fish."(fn1)

Laura Aceves was only twenty-one years old when she made her final frantic call to the police for help.(fn2) "No one else would have done this," Laura told police as she received the news that someone poured bleach in her gas tank.(fn3) Standing on the side of the road alone, Laura was helpless as she watched her car break down from the actions of her abusive ex-boyfriend, Victor Acuna-Sanchez. However, despite Laura's persistent pleas for help, the police officers were unable to find Victor, who was out on bail awaiting trial for felony aggravated assault.(fn4) Two days later, Laura died from a gunshot wound to her head.

Although Laura was two years older than Victor and had two children from a previous relationship, the couple began dating almost immediately after meeting at a friend's birthday party in 2011.(fn5) From

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the beginning, Victor was violent, beating Laura on a weekly basis and subjecting her to "a harrowing cycle of harassment."(fn6) Deeply controlling, Victor burned Laura's passport, social security card, and birth certificate in an effort to ensure she could never leave him.(fn7) When Laura attempted to flee, Victor knew how to find her, and would destroy her possessions until she returned. Finally, after becoming pregnant with Victor's child, Laura received a temporary restraining order against Victor.(fn8)

Unfortunately, Laura's subsequent attempts to leave the abusive relationship were met with violence, threats, and destruction, and all were unsuccessful. Discouraged, Laura refused to seek a permanent restraining order, and the abuse escalated after the birth of Victor's child.(fn9) Victor proceeded to beat and strangle Laura, smash her car with a hammer, destroy the baby's car seat, and steal her belongings.(fn10) Although Victor was arrested and charged with aggravated assault, the court granted him bail and placed him on probation.(fn11) Victor never checked in with the probation office despite orders to call twice a week.(fn12) Furthermore, in violation of the no-contact order issued upon his arrest, Victor forced Laura to ride in a vehicle with him.(fn13) While the police arrested Victor for this violation, the judge released Victor on his personal recognizance.(fn14) "That was the last time he was in police custody while Laura was still alive."(fn15)

On Christmas day, Laura informed Victor that she was leaving town. Allegedly, Laura had saved enough money to rent an apartment in Missouri with a friend.(fn16) On New Year's Eve, police discovered Laura dying on the floor of her apartment. She didn't make it to the New Year. Police arrested Victor at his mother's home hours later, where they found him hiding in the shower with a .22-caliber handgun, thirty-nine bullets, and the key to Laura's apartment.(fn17)

Although tragic, Laura's story is not unique. On average, forty-six American women are shot to death each month at the hands of men they love.(fn18) Of all female homicide victims, approximately thirty-three percent are killed by an intimate partner, and this rate of do-

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mestic homicide is steadily increasing.(fn19) When examining deaths by firearms specifically, over two-thirds of females are murdered by intimate partners.(fn20) The mere presence of a gun in a relationship plagued by domestic abuse increases this risk of homicide by a factor of six.(fn21) It is therefore undeniable that "[b]eing shot by an intimate partner is the most common cause of intentional death of women in this country."(fn22)

Despite the prevalence of domestic violence in America, and the brutality inflicted upon the victims, perpetrators are typically only charged with misdemeanors-if they are charged at all. The most common punishments include probation, a suspended sentence, or, rarely, imprisonment, which cannot exceed one year.(fn23) Conviction of

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a misdemeanor carries no firearm prohibition, and is often expunged from a perpetrator's record upon completion of a domestic batterer's course or psychological counseling. This legal framework has proved devastating for domestic violence victims, given that at least half of domestic violence defendants who murder their partners have criminal histories and legal access to firearms.(fn24)

Recognizing the lethal connection between intimate partner violence and homicide, Congress enacted the Domestic Violence Offender Gun Ban in 1996. Frequently referred to as the Lautenberg Amendment, after the late Senator Frank R. Lautenberg (D-NJ), the legislation prohibits any individual convicted of a misdemeanor crime of domestic violence from purchasing or owning a gun.(fn25) With the primary purpose of "sav[ing] the life of the ordinary American woman," the Lautenberg Amendment sought to close a dangerous loophole in gun control laws by keeping firearms away from violent individuals threatening their families.(fn26) Thus, the Lautenberg Amendment acts as a preventive measure by attempting to "target deadly abuse before it happens."(fn27)

Although well-intentioned, the Lautenberg Amendment has been subject to conflicting interpretations that have limited its effectiveness. In particular, courts have disagreed over whether an offense must involve violent physical force to qualify as a misdemeanor crime of domestic violence. This confusion existed for almost two decades before the United States Supreme Court intervened to clarify the statutory requirements in March 2014. In a unanimous opinion, the Court held that any application of physical force against a domestic partner could satisfy the requirements for a misdemeanor crime of domestic violence.(fn28) The force need not be violent or excessive. More specifically, this requirement of "physical force" is expressly satisfied by the degree of force supporting a common law battery conviction.(fn29)

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By interpreting the physical force requirement broadly, the Supreme Court received widespread praise for taking an active stance against domestic abuse.(fn30)

While the Supreme Court's decision in United States v. Castleman is emotionally appealing, it is precedentially erroneous and offers little practical assistance to domestic violence victims. This Article explores the faulty reasoning espoused by the Supreme Court in arriving at its activist decision, and illustrates the minimal impact this opinion will have on the lives of female victims. Specifically, this Article highlights the low prosecution rates under the federal firearms ban and explains why proposed legislative initiatives will be unsuccessful in appreciably reducing domestic abuse. In support of these arguments, this Article is divided into five parts. Part I provides a detailed overview of domestic violence, including the lethal interaction of domestic violence...