On January 15, 2014, the U.S. Supreme Court heard argument in United States v. Castleman, on whether a person who has been convicted of a domestic violence misdemeanor should be allowed to possess guns.

In 2001, James Castleman was convicted of misdemeanor domestic assault in Tennessee, for “intentionally or knowingly causing bodily injury to the mother of his child,” under a law that does not require “physical force” to convict.

In 2009, a federal grand jury in Memphis charged Castleman with two counts of possessing a firearm, after law enforcement agents learned in 2008 that he and his wife were buying firearms from dealers and selling them on the black market. The district court granted Castleman’s motion to dismiss the federal charges.

The United States appealed, and in September 2012, the Sixth Circuit upheld the lower court’s decision, holding that Castleman could possess guns because his misdemeanor domestic violence was not sufficiently “strong and violent” to meet the federal firearm ban criteria.

Arguing before the Supreme Court on behalf of the United States, Assistant to the Solicitor General Melissa Sherry reminded the Court that 18 U.S.C. §922(g) seeks to protect domestic violence survivors: the U.S. Code otherwise bars only convicted felons from possessing firearms, yet domestic violence crimes are often misdemeanors, only because the victims are family members.

Some Justices did not appreciate the domestic violence distinction, arguing that the statute should not treat domestic violence any differently than other forms of violence. Justice Scalia, for example, asked why the term “violence” should not cover any abuse that creates harm.

When Sherry argued that bodily injury by definition involves physical force, Justice Anthony Kennedy asked whether physical force would be involved if someone with a camera told another person to pose for a photo, and then to back up two steps, causing the subject to fall over a cliff. Sherry said that it would.

Justice Sonia Sotomayor told Charles Rothfeld, counsel for James Castleman, that he was advocating for serious crimes without consequences, just because the crime technically lacked a statutory definition of “violence.”

Justice Elena Kagan proposed a compromise between the polarized positions: The Court could agree that convictions based on conduct causing bodily injury would be deemed misdemeanor crimes of domestic violence, thus meeting the federal firearm ban threshold, excluding convictions based on “offensive touching.”

Neither side liked this solution. Sherry argued that at least fourteen states lacked separate “offensive touching” or “bodily injury” provisions in their laws, and state records are often unclear regarding the basis for conviction. Rothfeld argued that excluding convictions based on “offensive touching” would not help Castleman, whose indictment rested on a bodily injury finding. But some other Justices liked the idea.

The Court should release its decision by the end of June 2014.

About the author:

Katie Burke has practiced family law for ten years. She joined Schoenberg Family Law Group, P.C. in 2012, and belongs to the Bar Association of San Francisco’s Family Law Section and the Queen’s Bench Domestic Violence Committee. Katie occasionally writes family law articles for Nolo and Trial Insider.

@SchoenbergLaw