Whether, when an individual is convicted in any court of a misdemeanor crime in which the offender and victim shared a domestic relationship, the misdemeanor crime must actually have as an element a domestic relationship between the offender and the victim in order for the offender to be prohibited from possessing a firearm under 18 U.S.C. § 922(g)(9).
In 1994, Randy Edward Hayes pleaded guilty to a misdemeanor offense under West Virginia law for the battery of his then-wife, Mary Ann Hayes. Ten years later, police arrested Hayes and charged and convicted him under 18 U.S.C. § 921(a)(33)(A) for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. Hayes challenged the charge, alleging that since the West Virginia statute under which he was originally convicted did not have a domestic relationship between offender and victim as an element, he could not later be prosecuted under § 921(a)(33)(A), which, he argues, does require a domestic relationship between offender and victim as an element. The Government, while not denying that a domestic relationship is necessary for application of the statute, contends that a domestic relationship is not an element of the predicate offense of a violent misdemeanor in § 921(a)(33)(A). The Government points out that nine other courts of appeal have read the statute in this way. Hayes argues that the Government’s interpretation of the statute illegitimately broadens it beyond its intended meaning. He says that the Fourth Circuit, which overturned his conviction, was correct in reading the statute’s definition of a “misdemeanor crime of domestic violence” to include a domestic relationship element in the predicate offense.
Questions as Framed for the Court by the Parties
Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The question presented is whether, to qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), an offense must have as an element a domestic relationship between the offender and the victim.
In 1994, Randy Edward Hayes pleaded guilty to a misdemeanor battery offense under West Virginia Code section 61-2-9(c) for the battery of Mary Ann, Hayes’ then-wife with whom he lived and shared a child. See United States v. Hayes, 482 F.3d 749, 750 (2007). The West Virginia law that he violated provides that “[i]f any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor.” W. Va. Code § 61-2-9(c).
Ten years later, in 2004, the police went to Hayes’ home in response to a domestic violence 911 call. See U.S. v. Hayes, 482 F.3d at 750. Hayes consented to a search, and the authorities found a Winchester rifle in the home. See Id. Hayes was arrested and charged in the Federal District Court for the Northern District of West Virginia with violating 18 U.S.C. §§ 922(g)(9) and 924(a)(2) for possessing a firearm after being convicted of a misdemeanor crime of domestic violence (“MCDV”). See Id.
On September 30, 1996, Congress passed the Lautenberg Amendment to the 1968 Gun Control Act, prohibiting anyone who had been convicted of an MCDV from possessing a firearm. See U.S. v. Hayes 482 F.3d at 757. Because many states classify domestic violence crimes as misdemeanors rather than felonies, many domestic violence offenders could not be prohibited from handgun possession under the original version of the Gun Control Act. See Id. In an effort to close this loophole, Congress passed the Lautenberg Amendment, prohibiting offenders who had been convicted of Misdemeanor Crimes of Domestic Violence from possessing handguns. See Id. The MCDV definition under federal law states that
(33)(A) . . . the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim[.]
Hayes challenged the indictment and sought its dismissal, arguing that because the West Virginia statute under which he was convicted did not contain a domestic relationship as one of its elements, it was not an MCDV under federal law. See U.S. v. Hayes, 482 F. 3d at 751. When the district court denied the motion to dismiss, Hayes entered a conditional guilty plea, reserving his right to appeal the denial of his motion to dismiss. See Id. Hayes appealed, and the Fourth Circuit reversed, finding that Hayes’s conviction under the West Virginia statute did not constitute an MCDV under federal law because the state statute did not include a relationship with the victim as an element of the misdemeanor. See Id. at 750–51. The Government sought, and was granted certiorari in the Supreme Court.
The crux of the argument pivots on statutory interpretation: does a “misdemeanor crime of domestic violence” require a domestic relationship as an element for prosecution under 18 U.S.C. § 921(a)(33)(A)?
(a) Use of “Element” in the Singular
The United States acknowledges that there must be a domestic relationship between victim and offender for prosecution under 18 U.S.C. § 921(a)(33)(A), but alleges that the relationship need not be an element of the violent misdemeanor itself. See Brief for Petitioner, United States, at 12–13. The Government argues that Congress’ use of “element” in the singular means that “element” only qualifies the first clause of subsection (ii)—“the use or attempted use of physical force, or the threatened use of a deadly weapon”—and that the second clause—“committed by a current or former spouse, parent, or guardian of the victim”—is separate and distinct. See Id. at 13–14; 18 U.S.C. § 921(a)(33)(A). The Government contends that if Congress had intended for the two unrelated clauses to be conjoined then it would have used the plural “elements.” See Id. at 15.
Randy Edward Hayes rebuffs the Government’s contention that Congress would not use “element” in the singular to join two unrelated clauses by looking at other statutes. See Brief for Respondent, Randy Edward Hayes, at 24–25. He contends that within Title 18 Congress typically combines the mode of aggression with another factor, often the object, under the rubric of “element.” See Id. Hayes also points to the Dictionary Act, which says that unless otherwise indicated, “words importing the singular include and apply to several persons, parties, or things.” Id. at 25. Finally, Hayes argues that jury instructions frequently describe a single criminal offense as including multiple divergent parts. See Id. at 26.
The Government argues that the meaning of the plain text of the statute is manifestly clear, and that an alternate use of punctuation should not alter this manifest meaning. See Brief for Petitioner at 16–19. Although Congress could have further clarified “the ordinary meaning of [its] words” by using either a “hard return” or paragraph break between the two clauses, the Government argues that such indicators are not necessary. Id. at 16–17. Citing Supreme Court precedent, the Government remarks that while punctuation may serve to reaffirm the meaning of words, punctuation may not supersede that meaning. See Id. at 17.
Moreover, the Government points out that Congress used virtually identical language in a “companion provision” to another statute whose meaning is not in dispute. See Brief for Petitioner at 18–19. In that provision there are neither semicolons nor “hard returns.” See Id. According to the Government, Congress’ consideration of these two provisions in conjunction suggests that Congress intended the two provisions to have the same meaning, and that their meanings do not hinge on the use of semi-colons or “hard returns.” See Id. at 19.
By contrast, Hayes contends that the Fourth Circuit was indeed correct in reading the statute’s definition of a “misdemeanor crime of domestic violence” as including a domestic relationship element in the predicate offense. See Brief for Respondentat 15.Hayes argues that the Government’s reading “arbitrarily truncates” the definition at the end of the first clause, thus illegitimately broadening the reach of the statute by only requiring as an element actual or threatened force. See Id. The punctuation that Congress used—a comma—indicates that the domestic-relationship component is in fact necessary. See Id. at 16. Had Congress wished to divide the two clauses, it could have used “and,” a semi-colon, or a hard return, thereby changing the statute’s intent to read as the Government contends. See Id. Hayes argues that the implication to be drawn from Congress’ failure to use any of these indicators is that the domestic relationship is not merely an “additional fact” but actually an element of the offense. See Id. at 17.
(c) The Rule of the Last Antecedent
Hayes also notes that the Fourth Circuit correctly applied the rule of the last antecedent when it read a “misdemeanor crime of domestic violence” as including a domestic relationship element in the predicate offense. See Brief for Respondentat 19. According to the rule of the last antecedent, a limiting clause or phrase ordinarily modifies the noun or phrase immediately preceding it. See Id. at 20.Therefore, he argues, the “committed by a current or former spouse” phrase modifies the force requirement of the statute within its section, and not, as the Government contends, the “offense” phrase of the statute, which appears at the beginning. See Id.
The Government argues that the “committed by” phrase is most naturally read as modifying the use-of-force element. See Brief for Petitioner at 15. Such a reading is not only consistent with normal speech, but also retains the importance of the word “committed”: “[w]e do not normally say that a person has ‘committed’ a ‘use of force’ . . . or a ‘threatened use of a deadly weapon’ . . . [w]e do say, however, that a person has ‘committed’ a crime.” Id. at 15. The Government contends that it is just because this reading is so self-evident that every other court of appeals “has read the statute to apply to all misdemeanor crimes of violence committed by a person with a domestic relationship with the victim, regardless of whether the offense included a domestic-relationship element.” Id. at 15–16.
Congressional Intent and Legislative History
The Government also contends that the bill’s legislative history confirms that the domestic-relationship component is not necessary for prosecution under the statute. See Brief for Petitioner at 27–34. The Government concedes that the bill’s initially proposed language of “crime involving domestic violence” was more expansive than that the bill’s final language of “an offense, that . . . has, as an element, the use or attempted use of force, or the threatened use of a deadly weapon.” See Id. Id.at 28–29. But it counters that while the statute as enacted was less broad in its definition of what constituted an offense, it also allowed for the mere threat of violence to constitute a crime. See Id. at 29–30. It points to the comments of Senator Lautenberg at the time of the bill’s passage that “minor changes to the Senate-passed version . . . actually strengthen the ban slightly.” Id. Id.at 29.This language, the Government and Senator Lautenberg contend, makes it clear that the use-of-force phrase was in no way intended to mitigate the effect of the statute’s domestic relationship language. See Id. at 30–31; see Brief of Amicus Curiae Senators Frank R. Lautenberg, Dianne Feinstein, and Patty Murray in Support of Petitioner at 9–21.Although admitting that the language used by Senator Lautenberg is “not controlling,” the Government argues that it is especially pertinent because it came from the bill’s sponsor. See Id. at 32.
Hayes, looking to bolster his narrowly-defined reading of the statute, points to the bill’s laborious birth, arguing that the legislative history does indicate congressional intent to limit the statute’s proposed breadth. See Brief for Respondent at 28–41. The bill was first introduced as an add-on to an anti-stalking bill. See Id. at 29. However, Hayes contends that the “sweeping predicate-offense definition” was like “a legislative pariah,” causing the bill to stall in the House. Id. Contrary to the interpretation given by the Government, or by the bill’s sponsoring senator, Hayes concludes that the compromised use-of-force phrase completely rewrote the provision. See Id. at 31. According to Hayes, the bill only managed to pass after its central provision was rewritten, and only when it was attached to the massive appropriations act. See Id. at 33. Moreover, Hayes points out that the comments made by Senator Lautenberg were made two days after the House had already voted and therefore cannot illuminate what was understood by any of the Representatives. See Id.
The Government further argues that the reading given by the Fourth Circuit is unsatisfactory and impractical because such a reading would create a disparity among, and even within, the various States of the country. See Brief for Petitioner at 24. Only somewhere around half of the States have enacted domestic-violence misdemeanor laws. See Id. at 23–24. It is unreasonable, the Government says, to think that Congress would have attempted to provide a solution to the nationwide problem of gun-related domestic violence by enacting legislation that would be ineffective in a majority of the States and in the federal system. See Id. at 25.
Hayes responds by saying that Congress, in limiting the ban’s initial reach, could well have been acting in recognition of the limits of its lawmaking authority and have been trying to give those States that had not passed a domestic-abuse misdemeanor statute an incentive to do so. See Brief for Respondent at 45–46.
The Rule of Lenity
Should the Supreme Court reject Hayes’ statutory interpretation argument, he contends that the rule of lenity is applicable and should favor him for the very reason that the statute is not sufficiently clear. See Brief for Respondent at 41–42. The rule of lenity holds that, in the instance that there are two rational readings of a criminal statute, the court should resolve the ambiguity in favor of the defendant. See Scheidler v. Nat’l Org. For Women, Inc., 537 U.S. 393, 409 (2003). Hayes argues that if Congress intended for the stricter interpretation of the statute to be applied, it can remedy the situation by passing clearer legislation. See Brief for Respondent at 43. On the other hand, if the Court interprets the statute broadly instead of waiting for Congress to amend it, Hayes will be unfairly rendered a felon. See Id. at 44. The Government responds that the rule of lenity is inapplicable because there is no grievous ambiguity in the statute’s interpretation. See Brief for Petitioner at 37–38.
Should the Lautenberg Amendment restrict the sale of guns only to those domestic violence offenders who violated a state statute containing domestic violence as an element? Or, should the Amendment be interpreted to apply to all those convicted of a misdemeanor when the victim and the perpetrator shared a domestic relationship? This question of statutory interpretation has drawn responses from those concerned about the safety of victims and police officers, the role of federalism, the protection of Second Amendment rights, and the impact on the military.
The Government argues that the statute should be interpreted to apply to Hayes’ misdemeanor conviction. See Brief for Petitioner, United States, at 7. It argues that the text of the law, including Congress’ use of the term “element” in the singular, in addition to the legislative intent and history of the statute, lead to the conclusion that the prohibition on firearm ownership should apply to Hayes. See Id. at 8–10. Hayes urges the Supreme Court to construe the statute to apply only to those offenders who violated a state statute specifically containing an element of domestic violence. See Brief for Respondent, Randy Edward Hayes, at 13. He argues that “[e]veryday English usage, punctuation and grammatical rules” compel his desired reading of the statute. Id. He also contends that the minimal legislative history cannot support the Government’s desired statutory interpretation. See Id.
Proponents of the Government’s interpretation point to the dangers that firearms pose in domestic violence situations to support a broad reading of the statute. See Brief of Amicus Curiae Brady Center to Prevent Gun Violence (“Brady Center”) et al. in Support of Petitioner at 8–23, 32–35. The Brady Center provides a litany of statistics on the dangers firearms pose in an already abusive domestic relationship. See Id. at 8–15. In each year from 1980 to 2000, 60 to 70% of domestic offenders who killed their female partners used a gun. See Id. at 12. In addition to using guns to kill their victims, abusers also use them for intimidation and coercion. See Id. at 13. Because as of 2006, fewer than half the states in the U.S. had explicit domestic relationship elements in their domestic assault statutes, amici argue that adopting Hayes’ interpretation would put guns in the hands of thousands of domestic abusers, creating life-threatening situations for their victims. See Id. at 24, 35.
The Brady Center also points to law enforcement officer safety as a source of concern if the Supreme Court adopts Hayes’s desired statutory interpretation. See Brief of Brady Center at 15–23. Domestic disturbance calls carry a high degree of danger for officers: 14% of law enforcement deaths from 1996–2005 occurred when officers were responding to such calls. See Id. at 15–16. Among the categories of assaults on officers responding to calls for police assistance, domestic violence calls saw the highest percentage of total officer assaults, with 30%. See Id. at 18. Amici argue that returning guns to the hands of domestic violence offenders, as would occur if the Supreme Court rules for Hayes, creates a greater danger for law enforcement officers responding to already extremely dangerous calls. See Id. at 23.
Supporters of Hayes believe that public policy demands that the Supreme Court allow individual states to define the consequences of their criminal laws and punish domestic violence offenders as they see fit. See Brief of Amicus Curiae The Second Amendment Foundation, Inc. in Support of Respondent at 2–3. Citing federalism interests, the Second Amendment Foundation argues that “national, uniform standards in the definition and enforcement of basic criminal laws” would infringe on states’ sovereignty under the Constitution to exercise their police powers. Id. at 10–11. Furthermore, the Government’s desired interpretation of §921(a)(33)(A) “would remove Section 922(g)(9)’s incentive to enact and enforce domestic violence offenses.” Id. at 16. That is, by interpreting federal law to apply to offenders who have assaulted a victim with whom they have a domestic relationship, regardless of whether the state law explicitly contains a domestic relationship as an element of the crime, the Government removes an inducement for states to pass stricter domestic violence laws. See Id. The Second Amendment Foundation points out that although states may recognize that domestic violence offenses are more harmful than ordinary misdemeanor assaults, they may feel little need to act in the face of federal legislation on the topic, perhaps depriving their citizens of other benefits these laws may bring. See Id.
The Second Amendment Foundation and the Eagle Forum Education and Legal Defense Fund, both supporters of Hayes’ interpretation of §921(a)(33)(A), emphasize that the constitutionally-protected right to keep and bear arms is implicated in this case. See Brief of Second Amendment Foundation at 19–20; Brief of Amicus Curiae Eagle Forum Education and Legal Defense Fund in Support of Respondent at 12–15. Individuals found guilty of an MCDV risk being denied their constitutional rights, and as a result, the Government bears the burden of proving such a deprivation is proper. See Brief of Second Amendment Foundation at 19–20. The Second Amendment Foundation cautions against a broad interpretation of the statute, as individuals who enter a guilty plea to a misdemeanor crime of domestic violence will be, perhaps unknowingly, relinquishing the fundamental right to keep and bear arms. See Id. at 20. A narrow ruling would ensure that those who enter guilty pleas to such crimes would be fully informed of what they are giving up. See Id.
While the legal resolution of this case may depend on a highly detail-oriented analysis of the grammar of the statute and the precise legislative history, the range of effects of the Supreme Court’s ruling will not be so narrow. Rather, the case stands to have real consequences for a wide array of individuals and groups.
In many ways, this case pivots on the pinpoint of a comma, yet its implications go far beyond a tiny punctuation mark. Hayes—pointing to punctuation, rules of grammar, and prior statutory construction—argues that Congress intended for the statute’s definition of a “misdemeanor crime of domestic violence” to include a domestic relationship element, which would thus prohibit his prosecution under 18 U.S.C. § 921(a)(33)(A). In addition to using many of the same tools that Hayes does, the Government contends that the plain text of the statute is clear, and that a domestic relationship is not an element of the violent misdemeanor predicate. Wholly apart from the relatively dry arguments about grammar and punctuation, however, are compelling reasons why the Court should rule for one party or the other. Two hot-button issues—preservation of Second Amendment rights and protection of victims of domestic violence—provide sobering real-world bookends to a case that is otherwise concerned with minutiae of statutory construction.
Written by: Conrad Daly & Rebecca Vernon
Edited by: Carrie Evans