Misdemeanants, firearms, and discretion: the practical impact of the debate over 'physical force' and 18 U.S.C.

• Author: Kersey, Adam W.
• Position: Section - G - 9

TABLE OF CONTENTS INTRODUCTION I. "PHYSICAL FORCE" AND THE COURTS OF APPEALS A. Majority Interpretation: "Any" Physical Force B. United States v. Belless: "Violent" Physical Force C. United States v. Nason: State Court Interpretations D. Clarification or Confusion?: The Legislative History of 18 U.S.C. [section] 922(g)(9) II. COMBATING DOMESTIC VIOLENCE: CRIMES AND PROSECUTIONS A. Society's Response: Police and State Prosecutorial Discretion B. Prosecutorial Discretion and the Military CONCLUSION INTRODUCTION

Many people would consider simple assault to be a relatively minor state misdemeanor offense that carries minimal punishment. Simple assault cases are often tried before a judge without a jury (1) and are many times the subject of a plea agreement. If the assailant commits a simple assault on a person in a federally recognized domestic relationship, (2) that assault becomes a "misdemeanor crime of domestic violence," a crime which prohibits the assailant from future possession of a firearm (3) and creates the possibility of extremely harsh federal criminal sanctions. Simple assault--or any other misdemeanor with an element of physical force--committed against a domestic relation can be a predicate offense to federal criminal firearm possession laws carrying fines of $250,000 and sentences of ten years in federal prison. (4)

The federal government has codified the potential firearm restriction for qualified domestic offenders in 18 U.S.C. [section] 922(g)(9), the Lautenberg Amendment, which subjects a criminal convicted of a misdemeanor crime of domestic violence to a federal firearm restriction. The Lautenberg Amendment is one of the recently enacted federal criminal statutes dependent on the prosecution of criminals under a state's substantive law. (5) The use of state convictions and outcomes allows the state to "play a significant ... substantive part in facilitating federal criminal justice policy and goals." (6) Some commentators have posited that using state criminal proceedings as predicate offenses to federal firearms convictions leads to (1) arbitrary application, (7) and (2) "abdicat[ion] ... [of] criminal lawmaking authority in deference to individual states." (8) Federal courts interpreting federal statutes based on state substantive law must directly face these two concerns.

Congress has made it easier to import state substantive law into the federal system in limited instances, such as determining what constitutes a "conviction." (9) In other circumstances, however, Congress has not given the federal courts clear guidance.

Section 922(g)(9) criminalizes the possession of firearms by anyone convicted of a misdemeanor crime of domestic violence containing an element of the "use or attempted use of physical force." (10) Yet the circuit courts cannot agree on what amount of "physical force" qualifies as a predicate state court offense. The answer to the qualifying amount of "physical force" lies within the state courts' own judicial determinations and can be found by looking to the state courts to determine if the misdemeanor offense contains an element of physical force. By allowing the use of the state courts' determination, the federal courts infuse a bit of arbitrariness into the federal system. After all, substantive elements and definitions of "assault" vary from state to state.

This Note discusses the effect of the disagreements among the courts of appeals interpreting "physical force" in order to apply 18 U.S.C. [section] 922(g)(9) to misdemeanant domestic offenders. Part I examines the decisions by the federal courts and finds that three different approaches to the issue exist: two based on strict statutory construction and one openly accepting the infusion of state substantive law. Part II discusses the practical impact of the debate over "physical force" in [section] 922(g)(9) and its effect on federal prosecutions and military service. Part II suggests that limited infusion of state substantive law into the federal system--the interpretation of state case law--allows the state prosecutor the broadest possible discretion to confront the issue of domestic violence. Analyzing the requisite amount of force in light of a state's substantive determinations allows state prosecutors to ensure that the charged misdemeanor is the most appropriate charge for the offense. In many domestic violence situations, the answer is clear: society wants the violent misdemeanant to lose his access to firearms. However, the question of the requisite level of physical force is more difficult when the offense is not "violent" but merely "offensive" or de minimis. Using the state's substantive findings to guide the federal statute's applicability helps to ensure that the prosecutor has the ability to charge the offender appropriately, as the prosecutor understands the amount of force needed for a state level conviction. This gives the prosecution the ability to charge an offender under an alternate statute if conviction would impose a federal firearm restriction, which under the circumstances might be too great a criminal sanction.

The Note concludes with a brief look at the practical impact that the limited infusion of state substantive law, along with broad prosecutorial discretion, has on law enforcement and the military, two segments of society in which a misdemeanor crime of domestic violence is not only a threat to a domestic relationship, but also to the law officer's or uniformed service member's career. Furthermore, this infusion minimizes the possible "chilling effect" of 18 U.S.C. [section] 922(g)(9) in situations where a law enforcement officer or military service member may have engaged in criminal conduct for which an indefinite firearm restriction may be inappropriate.

1. "PHYSICAL FORCE" AND THE COURTS OF APPEALS

   On July 17, 2006, the United States Court of Appeals for the Eleventh Circuit affirmed the conviction of Jerry Lee Griffith for possession of a firearm after his conviction under Georgia's simple battery statute. (11) Griffith had beaten his wife and subsequently pleaded guilty to two counts of violating Georgia's simple battery statute, a misdemeanor. (12) Count one alleged that Griffith had made "contact of an insulting and provoking nature to Delores Griffith, his wife, by hitting her." (13) The second count, also for intentional "contact of an insulting and provoking nature," was for "dragging her across the floor." (14) Two years later, Griffith was arrested for possessing a firearm, violating 18 U.S.C. [section] 922(g)(9), the section of the Armed Career Criminal Act (ACCA) making it a felony for any person who has been convicted of a "misdemeanor crime of domestic violence" to possess either a firearm or ammunition that has traveled in interstate commerce. (15)

   A "misdemeanor crime of domestic violence" has three elements as defined by the United States Code. First, the crime must be "a misdemeanor under Federal or State law." (16) Second, the crime must "ha[ve], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon." (17) Third, the crime must be committed against a person in a recognized domestic relationship to the assailant. (18) Griffith challenged his [section] 922(g)(9) conviction under the theory that the Georgia statute failed to satisfy the second element because it did not have an element of "physical force." (19) The Eleventh Circuit held that the Georgia statute, requiring the intentional "physical contact of an insulting or provoking nature with the person of another," (20) adequately satisfied the "physical force" requirement explicit in 18 U.S.C. [section] 921(a)(33)(A)(ii) and implicit in [section] 922(g)(9). (21)

   Griffith was the most recent salvo fired between the courts of appeals grappling with the interpretation and application of [section] 922(g)(9). With Griffith, the Eleventh Circuit joined the First, Eighth, and Ninth Circuits in the debate over what, as the Eleventh Circuit stated, qualifies as "physical force" for [section] 922(g)(9) purposes. (22) At first glance, the majority of circuit courts to address the issue agree with the Eleventh Circuit's decision in Griffith: any misdemeanor with an element of use or attempted use of force can qualify if committed against a domestic relation. (23) The Ninth Circuit stands alone by holding that only "violent" physical force can bring a misdemeanor under the purview of [section] 922(g)(9). (24)

   Close examination of the First, Eighth, Ninth, and Eleventh Circuits' reasonings leads to a conclusion that there are actually three separate interpretations of "physical force" as it applies to [section] 922(g)(9): (1) that de minimis offensive contact qualifies the misdemeanor, (25) (2) that, subject to state law interpretation, offensive contact must be more than de minimis but need not rise to the level of "violent" physical force, (26) and (3) that the statutes require "violent" physical force. (27) Following an assessment of the reasoning behind each interpretation, it is apparent that the second approach, a state law supported finding that physical force must be more than just de minimis but need not rise to the level of "violent," most clearly aligns with the judicial history of the statutes and is the most logical interpretation.

   1. Majority Interpretation: "Any" Physical Force

      Of the four circuit courts that have directly addressed the interpretation of "physical force" under [section] 922(g)(9), three have held that any physical force could be enough to trigger the federal statute, provided the state statute has a requirement of such force. (28) Although the three courts are in agreement as to the ultimate result, they are not in agreement as to the reason. The Eleventh Circuit in Griffith and the Eighth Circuit in Smith proceeded along similar lines to reach their results. (29) The reasoning is in marked contrast to the reasoning of the First...