19 July 2010

Can Virginians convicted of domestic battery possess a firearm?

Per United States v. White, JUN10,  4Cir No. 09-4114, the answer is definitively, absolutely, definitely . . .



White was convicted in a Virginia Juvenile & Domestic Relations Court (J&DR) of domestic assault and battery (Va Code 18.2-57.2). The warrant just stated a bare allegation that White had violated the statute without any supporting facts. After the J&DR conviction, in a later, unrelated event, White was found to be in possession of a firearm and convicted of possessing a firearm after having "been convicted . . . of a misdemeanor crime of domestic violence" under 18 USC 922(g)(9).

In this decision, the 4th Circuit Court of Appeals had to decide whether both Virginia's domestic assault and battery statute and federal code under 18 USC 922 require violent contact as an element. The 4th determines that Virginia case law only requires an unwanted touching in anger and nothing more. This can mean spitting on someone, or any slight "touching of another, or of his clothes, or cane, or anything else attached to his person, if done in a rude, insolent, or angry manner." In other words, tapping someone on the shoulder because it's rude, you're angry at him and want him to turn around to face you is a battery in Virginia even though it isn't a violent act. There is no requirement for violence in order to convict someone of domestic assault and battery in Virginia.

Then the 4th turns to federal law. Per the definition under 18 USC 921(a)(33)(A) the predicate offense must have "as an element, the use or attempted use of physical force" and the opinion zeros in on the "physical force" part of the definition. The government tries to sell "physical force" as exactly the same as the "slight touching" required under Virginia law, but the court isn't buying it. Pointing to federal supreme court precedent and the fact that the predicate offense is supposed to be violent in nature, the 4th decides that the physical force required to qualify under this statute must be violent in nature.

At this point, having determined that the required element does not exist under Virginia's common law, it would seem that the analysis is over and Virginia residents convicted under Virginia's domestic assault and battery law would be allowed to possess firearms. In fact, under any logical reading of the statute, there is no other possible outcome. Nevertheless, the 4th reaches outside the plain language of the statute - requiring an element of the crime to include violent physical force - to state that a "modified categorical approach" can be applied.

The modified categorical approach allows the court to look at the predicate offense's "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." Typically, this is used to determine which exact part of a several part statute applies. However, in this case the 4th applies it to determine factual issues. Having done so, it stated that nothing in the trial court's records indicated anything to differentiate whether this was a violent or non-violent conviction. Therefore, White's conviction was reversed.


Most domestic violence convictions are in the J&DR court, which is not a court of record. Additionally, the Virginia Supreme Court's manual for the J&DR courts requires criminal records to be destroyed "in the eleventh year." The orders which the judges fill out (usually part of the summons or warrant) do not have a place on them for the judge to differentiate between violent and non-violent domestic assault and battery. Furthermore, it is very clear under Virginia law that a court speaks through its orders and other papers in that file are not determinative of anything.

Federal Implications:

Whether the Feds can prosecute these types of cases from this point forward is going to depend a lot on whether the federal courts will hold them to the Virginia law that only the trial court's orders are determinative. If the Feds are allowed to put forward other documents from the file they will probably have a complaint in most files. This is a narrative of the event which was given to the magistrate so that she could determine whether to approve the warrant. The warrant itself usually only contains a generic recitation of the elements of the offense. The problem with relying on the complaint is that anyone who has spent three days in J&DR court will tell you that, unless they are from an officer, they often have little to do with reality and the conviction often doesn't proceed from the facts as they are laid out in the complaint. When they are from an officer they usually include a list of observed injuries and a recitation of the allegation from the other party. The facts in these complaints might be enough to prove helpful in showing violent physical force - assuming the federal courts will allow the Feds to ignore Virginia law stating that everything outside the court order is meaningless.

Of course, after ten years - when the papers are destroyed - there will be absolutely no way to prove whether the facts support a violent or non-violent battery.

Virginian Implications:

It's not illegal to possess a firearm after a conviction for domestic assault and battery under Virginia law. However, we do every so often get someone charged with lying on their application when they try to buy a firearm. They answer "no" the question "Have you ever been convicted in any court of a misdemeanor crime of domestic violence?" In so doing, they commit perjury.

As a Virginia prosecutor, I'm limited to the fact that the court speaks through its orders. It's going to be very hard for me to prove that the predicate conviction was actually something that qualifies under the federal statute as "a misdemeanor crime involving domestic violence" and thus hard to prove he committed perjury.

Citizen Implications:

Well, that depends on how much the citizen wants to gamble with his liberty. Let's be honest here, there just aren't a whole lot of people out there with domestic assault and battery convictions because they tapped their spouse on the shoulder; police and prosecutors just aren't going to waste their time on things that small. Furthermore, most of the first offense violent domestic assault and batteries are diverted so that they do not end up with a conviction. With these facts in mind, if you have a domestic assault and battery on your record, no matter the technical mismatch between federal and Virginia law, everyone is going to think it is a violent offense. The only question is whether it can be proven or not. The prosecutor will believe that you are guilty and try to prove it. If a convicted citizen possesses a firearm he's gambling that prosecutors won't be able to prove it.


Mark Bennett said...

It's going to be very hard for me to prove that the predicate conviction was actually something that qualifies under the federal statute as "a misdemeanor crime involving domestic violence" and thus hard to prove he committed perjury.

If the predicate conviction was not clearly a MCIDV (so that not only we law geeks, but also the poor schlub with the conviction knows it), how could it be perjury? Don't you have to know your statement to be untrue to commit perjury?

Ken Lammers said...

Sure he has to know it is untrue. However, if a defendant went to Juvenile and Domestic Court and was convicted of Domestic assault and Battery because he hit his wife/baby momma/kid he knows he's been convicted of "a misdemeanor crime involving domestic violence."

Anonymous said...

i plead guilty in 2002 to assault by threat not knowing that above that charge was code 18.2-57.2 i tried to buy a gun in 2008 that is when i found out what that code is if i had known that i would have pleaded not guilty since what i said was to a police officer so is that justice no

farrow said...

Can a local cop or state trooper arrest someone in possession of a firearm after a 18.2-57.2 conviction ?