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"New" Use of Force Requirement for Misdemeanor Firearms Disqualification

By Timothy Zerillo, Esq. September 25, 2014

In March, the Supreme Court defined and expanded the use of force needed to make one a prohibited person in United States v. Castleman. A prohibited person cannot possess a firearm under federal law.

The Gun Control Act has long-prohibited convicted felons from owning firearms. In 1996, the Act was amended to extend this prohibition to persons convicted of a "misdemeanor crime of domestic violence." To qualify, such a crime must have an element of "the use or attempted use of physical force or the threatened use of a deadly weapon." 18 U.S.C. 922(g)(9)(A).

The use of force requirement has caused some concern and speculation among criminal defense practitioners. The question is what predicate misdemeanor crimes of domestic violence convictions will qualify?

The questions of what qualifies is sometimes clear and sometimes clear as mud. For example, in Maine, a domestic violence criminal threatening probably does not qualify, but it may be fact-dependant. A domestic violence terrorizing is also a very close call, in my view. And what about deferred dispositions with underlying prohibiting crimes? They are also unclear and clients must be warned of potential consequences.

While all the questions are certainly not answered, the Castleman decision at least gives us insight into what the use of force requirement means.

The majority opinion, issued by Justice Sotomayor, held that a misdemeanor domestic violence offense of intentional or knowing assault in state court was a misdemeanor crime of domestic violence for disqualification purposes.

Castleman was convicted in Tennessee state court of intentionally or knowingly causing bodily injury to the mother of his child. He was later sought and charged by the federal authorities for selling firearms on the black market. Castleman moved to dismiss the federal firearms charges, arguing that the Tennessee assault conviction was not disqualifying. He argued that the Tennessee statute did not have as an element the use of physical force. The District Court agreed and dismissed the case.

The Sixth Circuit, in a split decision, affirmed. The Sixth Circuit found that the degree of physical force required to be exerted in the underlying conviction was the same as that required for a violent felony under the Armed Career Criminal Act.

The logic in the majority opinion distinguishes the domestic assault situation from the violence in an ordinary assault situation. As the majority concludes, the squeezing of someone's arm leaving a slight bruise would be hard to imagine as violent in many non-domestic assaults, but could represent an accumulation of several violent acts in a domestic situation. As a result, the majority concluded that Congress meant to include misdemeanor violations of state battery laws in its definition of those who are prohibited persons. In doing so, the majority rejected the Sixth Circuit's definition of violence contained in the violent felony definition of the Armed Career Criminal Act.

From there, Castleman was sunk quite easily. He previously pled guilty in Tennessee to intentionally or knowingly causing bodily injury to the mother of his child, which sufficiently constituted a domestic relationship. As a result, the Supreme Court found that his knowing or intentional causation of bodily injury on the mother of his child necessarily involved the use of physical force.

Criminal defense practitioners will be wise to heed the Castleman warning. Pursuant to the Castleman decision, the use of force required for a disqualifying offense is likely to be very insignificant. Further, the majority opinion's distinction between domestic assaults and non-domestic assaults, and the use of force required for each, will provide good fodder for the government arguing close cases going forward. Careful criminal defense practitioners must warn their clients who care about firearm rights to carefully review Castleman before making major decisions regarding pleas.


Timothy E. Zerillo is the founder of Lerillo, Law, LLC, in Portland and Windham. His practices focuses on criminal defense, plaintiff's personal injury law, family law, and commercial litigation. Zerillo is a Past President of the Maine Association of Criminal Defense Lawyers. He recently was a national lecturer on Defending Child Pornography Prosecutions for the Association of Federal Defense Attorneys.

Timothy E. Zerillo has been included in every edition of New England Super Lawyers since 2010, for his Super Lawyers page, go to http://www.superlawyers.com/maine/lawyer/Timothy-E-Zerillo/ab011be9-fc96-44e9-ad28-3956da48c1b4.html

Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com - for his ratings page, go to http://www.avvo.com/attorneys/04112-me-timothy-zerillo-1844626.html

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