Fourth Circuit: North Carolina Assaults Don’t Count as “Misdemeanor Crimes of Domestic Violence” for Purposes of Firearm Prohibition

It is a federal crime for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a gun. 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” means a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and that is committed by a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). Late last year, the Fourth Circuit ruled that North Carolina misdemeanor assault convictions generally don’t satisfy that definition. Background. The decision in question is United States v. Vinson, 805 F.3d 120 (4th Cir. 2015). The defendant had been convicted of assault on a female in a domestic violence context. He later was found in possession of a gun, and was charged with a federal crime as a result. In federal district court, the defendant moved to dismiss, arguing that assault on a female may include touching that, while offensive and unconsented, is not violent and so does not amount to “physical force.” This argument was based on United States v. White, 606 F.3d 144 (4th Cir. 2010), which I discussed here. The district court granted the motion and dismissed. Fourth Circuit proceedings. The government appealed. While the appeal was pending, the Supreme Court ruled in United States v. Castleman, __ U.S. __, 134 S. Ct. 1405 (2014), that “offensive touching” was sufficient to constitute “physical force.” Therefore, the Fourth Circuit initially ruled that the [...]