Opinion analysis: Federal use of force encompasses reckless domestic violence misdemeanor offenses

In a straightforward six-two decision in Voisine v. United States, the Court ruled on the last opinion day of the Term that Congresss 1996 extension of a firearms prohibition to persons convicted of a misdemeanor crime of domestic violence includes reckless state misdemeanor offenses. Justice Elena Kagans majority opinion broadly invoked the mental-state definitions proposed in the American Law Institutes 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 Courts 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 Scalias 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 Thomass dissent.

The statutory question: A product of the always challenging intersection of federal and state criminal laws

The set-up for todays 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 Kagans 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 todays 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 todays 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 Maines 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 Maines 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 Courts analysis, adopting the Model Penal Codes mens rea provisions

The Court began its analysis by flatly adopting the Model Penal Codes 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 Maines 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 professors 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 Codes many sections.

In any case, todays opinion then explains that the statutory text, as well as its purpose and history (the Court avoids the term legislative history and Justice Scalias absence is strongly felt here), requires that reckless domestic assaults qualify under the federal statute. The Courts following esoteric mens rea discussion is matched only by Justice Thomass 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 Thomass 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 statutes] 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 majoritys ruling would reach that action as reckless, the majority must be wrong. But the differences in Justice Thomass 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 Thomass texting hypothetical. The majority simply ignores Justice Thomass 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 laws 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 laws] 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 Courts 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 Courts continuing pattern of relegating the Second Amendment to a second-class right. Whether Justice Thomass 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.