Opinion analysis: Federal “use of force” encompasses reckless domestic violence misdemeanor offenses
on Jun 27, 2016 at 9:08 pm
In a straightforward six-two decision in Voisine v. United States, the Court ruled on the last opinion day of the Term that Congress’s 1996 extension of a firearms prohibition to persons convicted of a “misdemeanor crime of domestic violence” includes “reckless” state misdemeanor offenses. Justice Elena Kagan’s majority opinion broadly invoked the mental-state definitions proposed in the American Law Institute’s 1962 Model Penal Code, and concluded that Congress intended to rely on those concepts when it enacted the domestic-violence firearms prohibition. The Court also concluded that Congress could not have intended to exclude the misdemeanor domestic-violence offenses that allow for “reckless” convictions in some thirty-five state and other jurisdictions. Although the opinion expressly restricts its ruling to the specific 1996 federal statute at issue (18 U.S.C. § 922(g)(9)), much of the Court’s analysis seems applicable to the broader question of whether the federal definition of “crime of violence” in 18 U.S.C. § 16 – which uses the same phrase interpreted today – “embraces reckless conduct.”
Justice Clarence Thomas dissented on two grounds, one statutory and the other addressing the Second Amendment (an issue not presented in the case). He did not read from the bench, although at the February 29 oral argument just two weeks after Justice Antonin Scalia’s passing, Justice Thomas had asked questions on this topic from the bench – his first bench questions in a decade. Justice Sonia Sotomayor joined only the statutory section of Justice Thomas’s dissent.
The statutory question: A product of the always challenging intersection of federal and state criminal laws
The set-up for today’s decision takes longer than explaining the decision itself. (See my preview.) Here goes:
Our republican-federalism form of government makes for interesting intersections between state and federal criminal laws. The fact is, the states have always handled the huge bulk (over ninety percent) of all criminal cases in this country. At the same time, the federal legislature has for many years enacted broad national criminal (and other) laws that are an “overlay” on state criminal cases, expressly relying on state criminal offenses and doctrines. When, as here, Congress makes a federal criminal offense turn on some prior conviction under state laws, a difficult legislative challenge is presented: how to legislate broadly to reach the conduct Congress wants to reach, without writing elaborate and detailed definitions to address a multitude of potential differences among fifty states. Following the enactment of such federal laws, the task of interpreting the resulting statutes, as they may apply to thousands if not hundreds of thousands of prior state convictions, has repeatedly bedeviled the Court.
Justice Kagan’s opinion in this case does a good job of presenting the specific statutory structure here as simply as possible. In 1996, Congress enacted Section 922(g)(9) so that the longstanding federal criminal offense of being a “felon in possession” of a firearm would also reach persons convicted of state domestic-violence offenses. Because many domestic-violence offenders were convicted (often by plea bargain) of misdemeanors, not felonies, Congress expressly extended the statutory “felon in possession” prohibition to any person convicted of a “misdemeanor crime of domestic violence.” That 1996 amendment then defined this phrase to encompass any federal, state, or tribal misdemeanor offense, committed by one person on another person with a specified domestic relationship, if the domestic violence misdemeanor offense “has, as an element, the use or attempted use of physical force.”
It is the “use of physical force” phrase that drives today’s decision. Two years ago, in United States v. Castleman, the Court expressly reserved the question of whether a “reckless assault” would qualify as a “use of physical force” under Section 922(g)(9). More generally, in 2004 the Court ruled in Leocal v. Ashcroft that the same phrase in a different statute – “use of physical force” to define the phrase “crime of violence” in 18 U.S.C. § 16 – did not reach “merely accidental” conduct — but the Court reserved the similar “reckless conduct” question.
The final statutory wrinkle relevant to today’s decision is that many states’ statutes – like the Maine statute at issue here – extend their domestic-violence assault misdemeanors to anyone “intentionally, knowingly, or recklessly” causing offensive physical contact. Just last week, in Mathis v. United States, the Court ruled that a state criminal statute that fails to distinguish between alternative elements must be assumed to encompass all of them, regardless of the actual facts of the case, under the “categorical” approach. If the Section 922(g)(9) definition were interpreted to not encompass “reckless” misdemeanor assaults, then prior state domestic-violence convictions under such “alternative means” statutes could not be used to apply the federal criminal firearms possession crime, even if the facts of a case showed intentional or knowing use of domestic violence. (Interestingly, Justice Kagan did not cite her opinion in Mathis from last week – but Justice Thomas cited it in his dissent today.)
The domestic violence facts here
Two cases arising out of Maine via the First Circuit were linked in one certiorari petition for this case. In 2004, Stephen Voisine pled guilty to assaulting his girlfriend under Maine’s misdemeanor assault law. Some years later Voisine was found to own a rifle, and was federally prosecuted under Section 922(g)(9). Similarly, William Armstrong pled guilty in 2008 to a Maine misdemeanor assault on his wife. He was later found in possession of guns and was federally prosecuted under Section 922(g). In separate appeals, the First Circuit ruled that a reckless assault could qualify under Section 922(g)(9), so it did not matter that Maine’s assault statute reached reckless, as well as intentional and knowing, assaults. The Court granted the defendants’ joint cert. petition, and today rejected the opposite view, which had been expressed by the Ninth Circuit.
The Court’s analysis, adopting the Model Penal Code’s mens rea provisions
The Court began its analysis by flatly adopting the Model Penal Code’s definitions of mens rea – that is, the mental states required for criminal convictions. “To commit an assault recklessly is to take that action with a certain state of mind (or mens rea) – in the dominant formulation, to ‘consciously disregard’ a substantial risk that the conduct will cause harm to another.” The Court cited Section 2.02 of the MPC as well as Maine’s statutory code and the 1994 decision in Farmer v. Brennan. While the Court has certainly invoked the MPC in the past, it seems like quite a significant step today for the Court to adopt, so immediately and without debate, the MPC as the “dominant formulation.” The Court is surely correct in its definition of “reckless. It just has not adopted the MPC quite so bluntly before.
And that makes a law professor’s heart sing — because students always wonder why we spend so much time learning the “ancient” Model Penal Code in the first-year criminal-law class. But as the Criminal Law casebook of which I am a co-author explains, a significant majority of states have adopted large portions of the MPC (while other portions are certainly outdated), and the mens rea definitions, which bring some logical order to the chaotic state of the common law, are perhaps the most influential of the Code’s many sections.
In any case, today’s opinion then explains that the statutory text, as well as its purpose and “history” (the Court avoids the term “legislative history” and Justice Scalia’s absence is strongly felt here), requires that “reckless” domestic assaults qualify under the federal statute. The Court’s following esoteric mens rea discussion is matched only by Justice Thomas’s even more esoteric – and I think simply wrong and confused – discussion in dissent.
The “common understanding” of the word “use,” says the Court, requires a “volitional” use of force. But the word is otherwise consistent with (that is, “indifferent to”) actions that are intentional, knowing, or reckless. “Accidents” (including what the Model Penal Code might term “negligence”) are not encompassed, but a “reckless” use of force – that is, a forceful act “undertaken with awareness of their substantial risk of causing injury” – is criminally condemned precisely because it is “the result of a deliberate decision to endanger others.” It is this significant difference between accidental versus reckless conduct that was recognized in Leocal. (Moreover, it is this distinction that I think Justice Thomas’s dissent either confuses or ignores, for example at pages two through four of the slip opinion dissent.)
Justice Kagan then goes on to note that when Congress enacted Section 922(g)(g) in 1996, thirty-four states and the District of Columbia included “reckless” infliction of physical harm in their misdemeanor assault statutes. Congress “must have known” this when it expressly legislated to encompass domestic-violence misdemeanors in the federal firearms possession crime. (Justice Kagan cites a Justice Joseph Story opinion from 1835 for the same “must be presumed” point.) “Construing §922(g)(9) to exclude crimes committed with that [reckless] state of mind would substantially undermine the [federal statute’s] design.”
Justice Kagan gives “a couple of examples,” including a “person [who] throws a plate in anger against the wall near where his wife is standing,” which can be “reckless” if he “recognized a substantial risk that a shard from the plate would [or more properly, could] ricochet and injure his wife.” In dissent, Justice Thomas discusses at great length a different example of his own devise – a driver who has a car accident while texting and injures his son, a passenger in the car – and says that because the majority’s ruling would reach that action as reckless, the majority must be wrong. But the differences in Justice Thomas’s example seem obvious – for example, there is no use of force by the father, and one questions whether a “reckless driving” offense could be prosecuted as “assault” for the injury to a passenger even in a hypothetical world. There is simply no indication that the Court would agree that its ruling today reaches Justice Thomas’s texting hypothetical. The majority simply ignores Justice Thomas’s hypothetical, and I think properly so.
Finally, the Court says that because Congress appeared to be presumptively legislating in 1996 on the prevalence of reckless-assault laws influenced by the Model Penal Code in at least two-thirds of the states, there is “no reason to wind the clock back” to a (disputed) common law that allegedly did not recognize reckless assaults. By 1996, “a substantial majority of jurisdictions … had abandoned the common law’s approach to mens rea,” and it would not make sense to “t[ie] the ban on firearms possession” to “a legal anachronism” that had “largely expired.” Finally, and in any case, “recklessness was not … an idea in [the common law’s] conceptual framework,” which used “overlapping, and frankly confusing phrases to describe culpable mental states.”
Thank you, Justice Kagan, former law school professor and dean. You have made the teaching of first-year criminal law and the Model Penal Code concepts of mens rea much easier. And anyone who says that the “academy” does not influence the Justices’ decisions must read this decision.
The Second Amendment issues remain looming
As noted in my post-argument analysis, the Court’s grant of certiorari in this case expressly denied review of a question asking whether the firearms-possession ban here violated the Second Amendment – although that did not stop Justice Thomas from asking his questions about that from the bench. Today, in a portion of his dissent not joined by Justice Sonia Sotomayor, Justice Thomas says that “we treat no other constitutional right so cavalierly” so that it may be lost for a lifetime based on a reckless-misdemeanor conviction. He specifically poses a First Amendment right implicated by “an absolute ban on publishing” in the future, and says, “I have little doubt that the majority would strike [it] down.” He objects to what he views as the Court’s continuing pattern of “relegating the Second Amendment to a second-class right.” Whether Justice Thomas’s conclusion here is right or wrong, he must surely be correct that questions such as this are bound to come to the Court with increasing frequency, and that the Court will soon have to develop an explanatory framework for analysis of Second Amendment claims.