Voisine v. United States

LII note: The U.S. Supreme Court has now decided Voisine v. United States.


Is reckless misdemeanor assault a “misdemeanor crime of domestic violence” under the Gun Control Act?

Oral argument: 
February 29, 2016

Congress passed the Lautenberg Amendment to the Gun Control Act, 18 U.S.C. § 922(g)(9) (“section 922”), to prohibit domestic abusers from obtaining firearms. Section 922 covers individuals convicted for a “misdemeanor crime of domestic violence,” which includes state misdemeanors that constitute “the use of physical force.” The Supreme Court will consider whether convictions under Maine’s domestic assault law satisfy this predicate offense requirement. Stephen Voisine was convicted under Maine’s domestic assault statute, which criminalizes “the intentional, knowing, or reckless causation of bodily injury or offensive physical contract to another person.” Voisine was then convicted under section 922. But Voisine asserts that common law battery requires a mens rea greater than recklessness and that the “use of physical force” implies intentional conduct. The United States argues that recklessness meets the standard for common law battery, and contends that section 922 would be pointless if it did not cover misdemeanors like Maine’s domestic assault statute. The Court’s decision will affect the ability of misdemeanants to possess firearms and the health and safety of domestic violence victims.

Questions as Framed for the Court by the Parties 

Does a misdemeanor crime with the mens rea of recklessness qualify as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?


In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, codified in 18 U.S.C. § 922(g)(9) (“section 922”). Section 922 prohibits individuals previously convicted of a “misdemeanor crime of domestic violence” from possessing firearms or ammunition. See United States v. Voisine, 778 F.3d 176, 177 (1st Cir. 2015). A “misdemeanor crime of domestic violence” is defined by 18 U.S.C. § 921(a)(33)(A) (“section 921”) as a misdemeanor under federal, state, or tribal law that constitutes the “use of physical force” by a person in a domestic relationship with the victim. See id.

In 2002 and 2008, a Maine trial court convicted William Armstrong III of assaulting his wife in violation of Maine’s misdemeanor domestic violence assault statute. See Voisine, 778 F.3dat 178.Upon searching his residence in 2010, Maine State Police discovered firearms and ammunition belonging to Armstrong. See id.Federal agents subsequently arrested and charged Armstrong under section 922, using his prior domestic violence conviction as the necessary predicate offense required by the statute. See id.

Like Armstrong, Stephen Voisine was convicted in 2003 and 2005 under the same Maine statute. See Voisine, 778 F.3dat 178.After Voisine voluntarily surrendered his firearms following an arrest in 2009, law enforcement officials performed a background check and discovered Voisine’s prior domestic violence convictions. See id.Officials then charged Voisine with violating section 922. See id.

Maine defines assault as “the intentional, knowing, or reckless causation of bodily injury or offensive physical contact to another person.” See Voisine, 778 F.3dat 178.Both defendants moved to dismiss the section 922 charges, claiming that their predicate offenses did not satisfy section 921’s definition of “misdemeanor crimes of domestic violence.” See id.at 178–179. They argued that misdemeanor convictions based on “offensive physical contact,” rather than assaults causing bodily injury, could not suffice as the “use of physical force.” See id.at 179. The U.S. District Court for the District of Maine denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the decision. See id.

The U.S. Court of Appeals for the First Circuit consolidated the two cases and affirmed the district court’s decision. The First Circuit held that the offensive physical contact portion of the Maine assault statute fit comfortably within “the use of physical force.” See Voisine, 778 F.3dat 178–179. Subsequently, Armstrong and Voisine petitioned the Supreme Court for certiorari, which the Court granted. Itvacatedthe First Circuit’s judgment and remanded the case for further consideration in light of the Court’s decision in United States v. Castleman, 134 S. Ct. 1405 (2014). See id.

In Castleman, the Court decided whether the phrase use of physical force in section 921 included offensive physical contact. The Court concluded “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—” in section 921. See Voisine, 778 F.3dat 178–179 (internal quotation omitted). However, the Court did not decide whether an assault conviction for offensive physical contact performed with the mens rea of recklessness sufficed as a section 922 predicate. See id.

On remand, the First Circuit affirmed the judgments of guilt. The court relied on statutory interpretation and the legislative history of section 922 to conclude that domestic assault, as defined by Maine law, was a use of physical force. See Voisine, 778 F.3dat 182–184. The dissent argued that an assault conviction on the basis of reckless offensive physical contact did not constitute a use of physical force. The dissent claimed physical force required a showing of intentionality rather than recklessness. See id.at 190–191, 202.


In this case, the Supreme Court will determine whether a misdemeanor crime of assault with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” under sections 921 and 922. Voisine asserts that the common-law misdemeanor of battery requires a mens rea greater than that of recklessness, and that the “use of physical force” implies intentional and purposeful conduct. See Brief for Petitioners, Stephen L. Voisine and William E. Armstrong, III at 17. Voisine contends that too many individuals involved in domestic disputes are being arrested, prosecuted, and convicted in cases with minor conduct or unclear facts. See id.at 27. But the United States argues that common-law battery includes the “reckless causation of offensive contact,” and to find otherwise would render section 922 essentially inoperative. SeeBrief for Respondent, United States at 14, 16. The United States maintains that disarming individuals who engage in domestic assault is a feasible way of preventing domestic gun violence. See id.at 50–51.


Maine defines assault as “intentionally, knowingly, or recklessly caus[ing] . . . bodily injury or offensive physical contact to another person.” See Brief for Petitionersat 11. To analyze this language, Voisine suggests the Court should apply a categorical approach, focusing only on Maine’s statutory definition of assault and not the facts of the crime. See id.at 11–12, 17. Voisine concludes that we cannot determine which of the possible mens rea variants of assault—intentional, knowing, or reckless—was the basis for his conviction under Maine state law by referring to his “generic charging documents.” Seeid.at 11–12. Assuming he was reckless at most, Voisine argues that reckless assault does not constitute “misdemeanor crimes of domestic violence,” and that the common law misdemeanor of battery must require a mens rea that is greater than recklessness.See id.at 12, 17. Voisine explains that common-law battery is generally defined as “the intentional application of unlawful force against the person of another”—a definition that emphasizes the actor’s intent. See id.at 15–16. Additionally, Voisine suggests that the phrase “use of physical force” in section 921 does not apply to reckless assaults, because “use” implies intentional and purposeful conduct. Seeid.at 17. Voisine maintains that the word “use” does not apply to the accidental application of physical force. See id.at 19.

But the United States argues that common law has traditionally defined battery to include the reckless “causation of bodily injury or offensive contact,” and that reckless battery constitutes a “misdemeanor crime of domestic violence.” SeeBrief for Respondent at 14–15. Most courts treat battery as a general intent crime: one that encompasses not only intentional conduct, but also knowing and reckless conduct. See id.at 18. The United States concludes that a defendant does not need a specific reason to inflict injury. Instead, a mental state of “criminal negligence” or “inexcusable carelessness” suffices. See id.at 17, 21. The United States claims that the common-law meaning of the word “force” includes offensive touching and that there is no common-law distinction between “battery resulting in bodily injury and battery involving offensive touching.” Seeid.at 15–16. A requirement of “violent force” would render section 922 inoperative because an offensive yet nonviolent contact may be just as, if not more, injurious than contact sufficient to inflict physical injury.See id.at 16, 26.


Voisine asserts that the language of sections 921 and 922 is clear. He notes that section 922 “was not the subject of extensive congressional discussions, hearings, and reports.” Rather, it was “a last-minute addition to a 750-page omnibus spending bill.” Voisine concludes that the statute’s limited legislative history is irrelevant. See Brief for Petitionersat 22–23. Regardless,Voisine maintains that principles of lenity—applied when a criminal statute is so ambiguous that the Court must make a guess at Congress’s intent—demand resolution of ambiguities in criminal statutes in favor of the defendant. See id.at 25, 31. Voisine argues that the stakes are too high to guess at Congress’s intent. Depending on the interpretation, defendants could receive a significant prison term or be cleared of any criminal liability.See id.at 31.

The United States maintains that Congress could have easily defined “misdemeanor crime of domestic violence” by incorporating a previously set definition for the phrase “crime of violence” but chose not to. SeeBrief for Respondent at 34. The United States argues that Congress instead defined the phrase misdemeanor crime of domestic violence according to common law.See id.The United States concludes that section 922 is unambiguous. Principles of lenity are inapplicable, because the common-law definition of battery, which includes reckless conduct, clearly applies. See id.at 48.


Voisine argues that mandatory or preferred arrest laws often require or encourage officers to make an arrest when dealing with a domestic dispute, even in minor incidents with unclear facts. SeeBrief for Petitionersat 26–27. Also, “no-drop” policies allow prosecutors to proceed in domestic dispute cases without the victim present in court and willing to testify. See id.at 27. In Voisine’s view, this results in more arrests, prosecutions, and convictions of people involved in minor domestic disputes. See id.Once faced with arrest, Voisine contends defendants feel pressure to plead guilty to reckless conduct, regardless of their culpability, because they fear being imprisoned without bail while they await trial. See id.at 28–29.

United States argues that the purpose of section 922 is to prevent “potentially irresponsible and dangerous persons” from obtaining firearms, including those convicted of reckless domestic batteries. SeeBrief for Respondent at 36–37. The United States maintains that it’s nonsensical to render section 922 inapplicable to the majority of domestic abuse cases. Most offenders are convicted under misdemeanor battery statutes. See id.at 40.


Some amici argue that the Court should read the section 922 to encompass all forms of domestic violence. They argue that a broad reading will best protect the health and safety of domestic violence victims, and best reflect the intent of Congress. But others suggest that Congress intended to give the amendment narrow effect, and that a broad reading may affect the Second Amendment rights of the least violent offenders.


Some amici suggest that the Court should interpret section 922 narrowly. Otherwise, the Gun Owners Foundation (the “Foundation”) contends, section 922 would undercut the Second Amendment rights of misdemeanants to purchase and possess firearms legally. See Brief of Amici Curiae Gun Owners Foundation, et al., in Support of Petitioners at 15–16. The Foundation contends that section 922 only targets violent crimes, in which perpetrators intentionally or knowingly inflict force. See id.at 11–12. Characterizing misdemeanant domestic abusers convicted for reckless use of force with intentional offenders would conflate all domestic abuse with violent offenses, despite Congress’ intention to differentiate between the two. See id. at 23–25. The Foundation maintains that courts have misconstrued the use of physical force by referring to statistics Congress did not have when it passed the law. See id. The Foundation suggests that because statistics linking domestic abuse, recidivism, and gun violence were unavailable at the time, Congress probably intended that only the most violent offenses would preclude the possession of firearms. See id. at 10–12.

Others dispute this characterization of Congress’ intent. Everytown for Gun Safety argues that Congress intended section 922 to target perpetrators of all domestic violence, not just the most violent offenders. See Brief of Amicus Curiae Everytown for Gun Safety, in Support of Respondent at 11–14. The National Domestic Violence Hotline (“NDVH”) contends section 922 was meant to close a loophole in the Gun Safety Act that allowed misdemeanant domestic abusers to possess firearms. See Brief of Amici Curiae National Domestic Violence Hotline, et al., in Support of Respondentat 21. Congress intended a broad definition of “physical force” to capture domestic violence in all forms. See id. at 6–9. The Brady Center to Prevent Gun Violence contends that Congress instituted this zero tolerance policy because of a lethal link between domestic abuse and firearm possession. See Brief of Amici Curiae The Brady Center to Prevent Gun Violence, et al., in Support of Respondent at 15–18. Research demonstrates that domestic abusers who can access firearms increase the risk that their victims will suffer serious injury. An adverse ruling would exempt misdemeanants in thirty-four states from the scope of section 922. See id. at 22.


This case will determine whether a misdemeanor domestic assault with the mens rea of recklessness satisfies the predicate offense requirement of section 922. See Brief for Petitioners, Stephen L. Voisine and William E. Armstrong, III at2. Voisine argues that such crimes do not satisfy the requirement because the predicate offense requirement is defined by reference to the common-law crime of battery, which does not include the crime of offensive physical contact performed with a mens rea of recklessness. See id.at 12–17. The United States argues that misdemeanor domestic assault with a mens rea of recklessness is a “misdemeanor crime of domestic violence” under section 922, because the crime falls within the definition of “use . . . of physical force” and satisfies all elements of the common-law crime of battery. See Brief for Respondent, United States at17–20.

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Additional Resources 

Jess Bravin, Death of an Eagle Hatches Supreme Court Firearms Case, Wall Street Journal (Oct. 30, 2015).