Amicus Brief: Voisine v. United States

January 26, 2016

Everytown for Gun Safety filed this amicus brief in the U.S. Supreme Court in a case that seeks to undermine application of the federal law that prohibits people convicted of domestic violence misdemeanors from possessing guns. Everytown’s brief demonstrated that the case had the potential to allow convicted abusers to legally possess guns in more than two-thirds of the states. The brief urged the Court to ensure that the domestic violence misdemeanor prohibition applied equally in all 50 states, as Congress intended.

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No. 14-10154
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
IN THE
Supreme Court of the United States
————
STEPHEN L. VOISINE AND WILLIAM E. ARMSTRONG, III,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
————
On Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
————
BRIEF OF EVERYTOWN FOR
GUN SAFETY AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT
————
J. ADAM SKAGGS
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN
SAFETY
P.O. Box 4184
New York, New York 10163
(646) 324-8201
ANTONIO J. PEREZ-MARQUES
Counsel of Record
DAVID B. TOSCANO
JILLIAN RENNIE STILLMAN
ANTONIO M. HAYNES
NICK M. AXELROD
ADRIENNE L. ADKINS
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4559
[email protected]
Counsel for Amicus Curiae
January 26, 2016
(i)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ………………………….. ii
INTEREST OF AMICUS CURIAE ………………… 1
SUMMARY OF ARGUMENT ……………………….. 2
ARGUMENT ……………………………………………….. 6
I. Armed Domestic Abusers Pose a Lethal
Threat Nationwide. …………………………….. 7
II. Petitioners’ Interpretation of § 922(g)(9)
Would Defeat the Purpose of the
Lautenberg Amendment and Upend the
State and Federal Regulatory Regime. …. 10
III. Petitioners’ Interpretation of § 922(g)(9)
Would Allow Domestic Violence
Misdemeanants in at Least Thirty-Five
Jurisdictions to Legally Possess Guns. …. 15
CONCLUSION ……………………………………………. 23

ii
TABLE OF AUTHORITIES
CASES Page(s)
Begay v. United States,
553 U.S. 137 (2008) ……………………………. 18
Cannon v. Univ. of Chi.,
441 U.S. 677 (1979) ……………………………. 17
Descamps v. United States,
133 S.Ct. 2276 (2013) …………………………. 19
DePierre v. United States,
131 S.Ct. 2225 (2011) ………………………….. 13
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) …………………………….. 17
Hoodho v. Holder,
558 F.3d 184 (2d Cir. 2009) …………………. 18
Johnson v. State,
115 A.3d 668 (Md. Ct. Spec. App. 2015) …. 17
Mathis v. United States,
No. 15-6092 (U.S., docketed Jan. 19,
2015) …………………………………………………. 19
Nijhawan v. Holder,
557 U.S. 29 (2009) ………………………………. 19
Shepard v. United States,
544 U.S. 13 (2005) ………………………………. 19
United States v. Booker,
644 F.3d 12 (1st Cir. 2011) ………………….. 13
United States v. Castleman,
134 S. Ct. 1405 (2014) …………………………passim
United States v. Hartsock,
347 F.3d 1 (1st Cir. 2003) ……………………. 13
iii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Hayes,
555 U.S. 415 (2009) …………………………….passim
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) (en banc) ….. 3, 8, 9
STATUTES
18 U.S.C. § 921 et seq. ……………………………. 6
18 U.S.C. § 921(a)(33)(A) ………………………… 13
18 U.S.C. § 922 ……………………………………… 23
18 U.S.C. § 922(g) ………………………………….. 20
18 U.S.C. § 922(g)(8) ………………………………. 11
18 U.S.C. § 922(g)(9) ………………………………passim
18 U.S.C. § 922(q) ………………………………….. 13
18 U.S.C. § 922(t)(1) ………………………………. 20
Omnibus Consolidated Appropriations Act
of 1997, Pub. L. No. 104-208, 110 Stat.
3009 ………………………………………………….. 13
Md. Code Ann. Crim. Law § 3-202 …………… 17
Md. Code Ann. Crim. Law § 3-203(a) ………. 17
Me. Rev. Stat. tit. 17-A § 35 ……………………. 16
Me. Rev. Stat. tit. 17-A § 207 ………………….. 16
Model Penal Code § 2.02(2)(c) …………………. 16
Model Penal Code § 211.1(1)(a) ………………. 16
Ohio Rev. Code Ann. § 2903.11(A) …………… 18
Ohio Rev. Code Ann. § 2903.13(A), (B) …….. 18
iv
TABLE OF AUTHORITIES—Continued
Page(s)
LEGISLATIVE MATERIALS
142 Cong. Rec. 22,988 (1996) ………………….. 4
142 Cong. Rec. S8831 (daily ed. July 25,
1996) ……………………………………………. 11, 12, 14
142 Cong. Rec. S10377 (daily ed. Sept. 12,
1996) …………………………………………………. 4, 12
OTHER AUTHORITIES
Bureau of Justice Statistics, DOJ,
Background Checks for Firearms
Transfers, 2010-Statistical Tables (Feb.
2013), www.bjs.gov/content/pub/pdf/bcft
10st.pdf ……………………………………………… 21
Jacquelyn C. Campbell et al., Risk Factors
for Femicide in Abusive Relationships:
Results From a Multisite Case Control
Study, 93 Am. J. Pub. Health 1089 (July
2003) …………………………………………………. 2
Criminal Justice Information Services
Division, FBI, National Instant Criminal
Background Check System (May 2015),
www.fbi.gov/about-us/cjis/nics/generalinformation/nics-overview-brochure
…….. 20
v
TABLE OF AUTHORITIES—Continued
Page(s)
Criminal Justice Information Services
Division, FBI, National Instant Criminal
Background Check System (NICS)
Operations 2014 (2014), www.fbi.gov/
about-us/cjis/nics/reports/2014-operationsreport
………………………………………………… 21
Everytown for Gun Safety, Analysis of
Mass Shootings (Aug. 20, 2015), www.
everytownresearch.org/reports/massshootings-analysis
………………………………. 10
Everytown for Gun Safety, Guns and
Violence Against Women, www.every
townresearch.org/documents/2015/09/gun
-laws-violence-women-infographic.pdf ….. 8, 9
Everytown for Gun Safety, Guns and
Violence Against Women: America’s
Uniquely Lethal Domestic Violence
Problem (2014), www.everytown
research.org/documents/2015/04/gunsand-violence-against-women.pdf
………….. 20
Everytown for Gun Safety, Gun Violence by
the Numbers, www.everytownresearch.
org/gun-violence-by-the-numbers/#
Domestic Violence ………………………………. 2
GAO, Gun Control Opportunities to Close
Loopholes in the National Instant
Criminal Background Check System
(July 2002), www.gao.gov/assets/240/23
5091.pdf …………………………………………….. 21
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Arkadi Gerney & Chelsea Parsons, Center
for Am. Progress, Women Under the Gun:
How Gun Violence Affects Women and 4
Policy Solutions to Better Protect Them
(June 18, 2014), www.americanprogress.
org/issues/guns-crime/report/2014/06/
18/91998/women-under-the-gun ………….. 2
Edward Gondolf, A 30-Month Follow-Up of
Court-Referred Batterers in Four Cities,
44 Int’l J. Offender Therapy and
Comparative Criminology 111 (2000) …… 7
Kevin Johnson, FBI Official: ‘Perfect Storm’
Imperiling Gun Background Checks,
USA Today, Jan. 20, 2016, www.usa
today.com/story/news/nation/2016/01/19/
fbi-guns-background-checks/78752774 …. 21, 22
Brian Knight, State Gun Policy and CrossState
Externalities: Evidence from Crime
Gun Tracing (Nat’l Bureau of Econ.
Research, Working Paper No. 17469,
2011), www. princeton.edu/rppe/speakerseries/speaker-series-2011-12/Knight.pdf
22
Mayors Against Illegal Guns, Trace the
Guns, The Link Between Gun Laws and
Interstate Gun Trafficking (Sept. 2010),
www.tracetheguns.org/report.pdf ………… 22
vii
TABLE OF AUTHORITIES—Continued
Page(s)
National Center for Injury Prevention and
Control, Centers for Disease Control and
Prevention, Intimate Partner Violence
in the United States—2010 (Feb. 2014),
www. cdc.gov/violenceprevention/pdf/cdc _
nisvs_ipv_report_2013_v17_single_a.pdf … 7
Andrew R. Klein, National Institute of
Justice, DOJ, Practical Implications of
Current Domestic Violence Research: For
Law Enforcement, Prosecutors, and
Judges (June 2009), www.ncjrs.gov/pdffil
es1/nij/225722.pdf ………………………………. 9
Susan B. Sorenson et al., Weapons in the
Lives of Battered Women, 94 Am. J. Pub.
Health 1412 (2004) …………………………….. 9
U.S. Census Bureau, Population Estimates,
State Totals: Vintage 2015 (Dec. 22,
2015), www.census.gov/popest/data/state/
totals/2015 …………………………………………. 5, 17
Washington State Institute for Public
Policy, Washington’s Offender Accountability
Act: Department of Corrections’
Static Risk Instrument (Mar. 2007),
www.wsipp.wa.gov/ReportFile/977/Wsip
p_Washingtons-Offender-AccountabilityActDepartment-of-Corrections-StaticRisk-Instrument_Full-Report-UpdatedOctober-2008.pdf
………………………………… 3, 10
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Washington State Institute for Public
Policy, Recidivism Trends of Domestic
Violence Offenders in Washington
State (Aug. 2013), www.wsipp.wa.gov/
ReportFile/1541/Wsipp_RecidivismTrends
-of-Domestic-Violence-Offendersin-Washington-State_Full-Report.pdf
….. 8
INTEREST OF AMICUS CURIAE1
Everytown for Gun Safety (“Everytown”) is the
nation’s largest gun violence prevention organization,
with more than three million supporters fighting for
public safety measures that respect the Second
Amendment and help save lives. Everytown was
founded in 2014 as the combined effort of Mayors
Against Illegal Guns, a national, bipartisan coalition
of mayors combating illegal guns and gun trafficking,
and Moms Demand Action for Gun Sense in America,
which arose in the wake of the gun murders of twenty
children and six adults at an elementary school in
Newtown, Connecticut.
A critical part of Everytown’s mission is advocating
for comprehensive, consistent enforcement of existing
laws designed to keep dangerous weapons out of the
hands of convicted domestic abusers. It submits this
amicus brief to demonstrate that keeping American
communities safe for everyone—including victims of
domestic violence and the law enforcement officers
who are called upon to protect them—requires
interpreting 18 U.S.C. § 922(g)(9) in accordance with
its plain meaning and the clear intent of Congress to
prohibit a person convicted of any “misdemeanor crime
of domestic violence” from possessing a firearm.
Everytown’s research demonstrates the clear danger
of guns in the hands of convicted domestic abusers and
underscores why the Court should reject Petitioners’
1
This brief is submitted pursuant to Rule 37 of the Rules of the
Supreme Court of the United States. Counsel for Petitioners and
Respondent have consented to this submission. No counsel for a
party authored this brief in whole or in part, nor did any such
counsel or anyone other than amicus make any monetary
contribution intended to fund the preparation or submission of
this brief.
2
dangerous view of § 922(g)(9), which would eviscerate
the federal prohibition on gun possession by domestic
abusers convicted of misdemeanor offenses.
SUMMARY OF ARGUMENT
This case lies at the deadly intersection of two national
epidemics: domestic violence and gun violence.
American women are eleven times more likely to be
shot to death than women in other developed countries.2
A majority of those murders are committed by
family members or intimate partners—who, on average,
fatally shoot fifty-two women each month.3
As
this Court has observed, “[f]irearms and domestic
strife are a potentially deadly combination nationwide.”
United States v. Hayes, 555 U.S. 415, 427 (2009).
The evidence demonstrating the disproportionate
risk of guns in the hands of domestic abusers is
tragically clear. A firearm in the home quintuples the
risk that an individual with a history of domestic
violence will subsequently murder an intimate
partner.4
The high rates of recidivism among domestic
2
Arkadi Gerney & Chelsea Parsons, Center for Am. Progress,
Women Under the Gun: How Gun Violence Affects Women and 4
Policy Solutions to Better Protect Them (June 18, 2014),
www.americanprogress.org/issues/guns-crime/report/2014/06/18/
91998/women-under-the-gun.
3
Everytown for Gun Safety, Gun Violence by the Numbers,
www.everytownresearch.org/gun-violence-by-the-numbers/#
DomesticViolence.
4
A case-control study of 563 women in abusive relationships
found that perpetrators’ access to firearms increased the risk of
homicide in abusive relationships fivefold, while victims’ access
to weapons did not serve as a protective measure. Jacquelyn C.
Campbell et al., Risk Factors for Femicide in Abusive
Relationships: Results From a Multisite Case Control Study, 93
Am. J. Pub. Health 1089, 1089–97 (July 2003).
3
abusers are well established. And when such recidivism
occurs, the presence of a firearm dramatically
increases the risk to the victim: domestic assaults with
firearms are approximately twelve times more likely to
end in the victim’s death than assaults by knives or
fists.5
That a prior domestic violence incident was charged
as—or, frequently, pleaded down to—a misdemeanor
offense does not eliminate these risks. Indeed,
individuals convicted of multiple misdemeanor domestic
violence offenses commit subsequent violent
felonies with rates of recidivism comparable to those
who have been convicted previously of multiple felony
assaults.6
Bipartisan recognition of the substantial
and unique risk of misdemeanor domestic violence
offenses caused Congress to enact § 922(g)(9) in
1996, making it a federal offense for any person
convicted of a misdemeanor crime of domestic violence
to possess a firearm. § 922(g)(9). That provision,
commonly known as the Lautenberg Amendment,
implements Congress’s intent to close a “dangerous
loophole.” See Hayes, 555 U.S. at 426–27. Prior to
§ 922(g)(9)’s enactment, domestic violence misdemeanants
could legally buy and possess firearms because
even serious domestic violence offenses were commonly
charged as, or pleaded down to, misdemeanors.
United States v. Castleman, 134 S. Ct. 1405, 1409
(2014). The Lautenberg Amendment resulted from
5 United States v. Skoien, 614 F.3d 638, 643 (7th Cir. 2010) (en
banc).
6
Washington State Institute for Public Policy, Washington’s
Offender Accountability Act: Department of Corrections’ Static
Risk Instrument (Mar. 2007), www.wsipp.wa.gov/ReportFile/977/
Wsipp_Washingtons-Offender-Accountability-ActDepartment-of
-Static-Risk-Instrument_Full-Report-Updated-October-2008.pdf.
4
Congress’s further recognition that domestic violence
often escalates over time, and that it is “only a matter
of time before the violence gets out of hand, and the
gun results in tragedy.” 142 Cong. Rec. 22,988 (1996)
(statement of Sen. Feinstein); see also 142 Cong. Rec.
S10377 (daily ed. Sept. 12, 1996) (quoting Senator Kay
Bailey Hutchinson’s statement that the Lautenberg
Amendment would keep handguns from individuals
“who batter their wives or people with whom they
live”).
The congressional intent of the Lautenberg
Amendment can be fulfilled only by a holding that
§ 922(g)(9) embraces misdemeanor domestic violence
convictions based on a mens rea of recklessness. At
the time the Lautenberg Amendment was enacted,
misdemeanor crimes of domestic violence included
offenses committed with a mens rea of recklessness
under federal law and under the law of thirty-four
States and the District of Columbia.7
The mere fact
that the substantial majority of misdemeanor
domestic violence statutes extend to reckless conduct
compels the conclusion that an intent to capture
misdemeanor domestic violence within § 922(g)(9) is
7
The number of jurisdictions permitting a conviction for
misdemeanor assault with a mens rea of recklessness remains
unchanged. See Resp. Br. at 38; App. B (collecting relevant
statutes and judicial decisions). In addition, seventeen States
have domestic violence assault provisions that proscribe reckless
conduct either expressly or by incorporating the State’s general
assault and battery provision. See Resp. Br. at 39; App. C
(collecting relevant statutes). Eight of those statutes existed at
the time of § 922(g)(9)’s enactment, and nine such provisions have
been enacted since 1996. Id.
5
tantamount to an intent to capture reckless misdemeanor
domestic violence offenses. The law of simple
assault and battery in those thirty-four States and the
District of Columbia has not materially changed since
1996: a misdemeanor crime of domestic violence can
still be committed with a mens rea of recklessness.8

To the extent the categorical approach applies in
those thirty-five jurisdictions, the intent of the
Lautenberg Amendment would be gutted. In those
jurisdictions, in which nearly 60% of this country’s
population resides,9
misdemeanor domestic violence
offenders would escape the prohibition of
§ 922(g)(9) and would be free to possess firearms, even
where those offenders were convicted of intentional
conduct. The result of Petitioners’ interpretation also
would be unacceptable even if some of the misdemeanor
domestic violence statutes in those States are
amenable to a modified categorical approach. In that
scenario, the substantial complexities of administering
the modified categorical approach would
hamstring courts’ ability to properly punish firearm
possession in violation of § 922(g)(9). Perhaps even
more critically, those same administrative complexities
would impose an unworkable burden on the
National Instant Criminal Background Check System
(“NICS”), which serves as the bulwark against such
offenders possessing firearms in the first place. The
ability of the already overburdened NICS to keep
firearms out of the very hands where their lethality is
so dramatically increased would be crippled by
8 See Resp. Br. at 38; App. B (collecting relevant statutes and
judicial decisions).
9
U.S. Census Bureau, Population Estimates, State Totals:
Vintage 2015 (Dec. 22, 2015), www.census.gov/popest/data/state
/totals/2015.
6
Petitioners’ interpretation. Under the modified categorical
approach, NICS would be required to discern
the mens rea of the particular defendant and its
significance under the specific statute and, when the
record does not permit such discernment, to allow a
firearm sale to the misdemeanant to proceed.
The stakes of this decision will be measured in lives.
Congress has clearly expressed its intent. This Court
should honor that intent by affirming the decision
below and holding that the definition of “misdemeanor
crime of domestic violence” extends to crimes
committed with a mens rea of recklessness.
ARGUMENT
Interpreting “misdemeanor crime of domestic
violence” as used in § 922(g)(9) to embrace all
misdemeanor convictions is compelled by the statutory
text and is critical to implementing the federal Gun
Control Act’s purpose of reducing violent crime.10
Carving out from the definition of “misdemeanor crime
of domestic violence” any offense that can be
committed with a mens rea of recklessness, as
Petitioners advocate, would undermine Congress’s
federal remedy for a serious national problem. Indeed,
the practical effect of adopting Petitioners’ interpretation
would be either to allow persons convicted of
misdemeanor crimes of domestic violence to possess
firearms in more than two-thirds of the States, or to
render unworkable nationwide the procedures that
prevent those persons from purchasing firearms.
Either result would be tragic, as confirmed by recent
studies and data showing that prohibiting the
10 Gun Control Act of 1968, 18 U.S.C. § 921 et seq.
7
possession of guns by convicted domestic abusers is
critical to preventing and reducing gun violence.
I. Armed Domestic Abusers Pose a Lethal
Threat Nationwide.
This Court has rightly recognized the persistent and
prevalent problem posed by domestic violence in this
country. Just two terms ago, in Castleman, the Court
acknowledged that there are “more than a million acts
of domestic violence, and hundreds of deaths from
domestic violence,” every year. Castleman, 134 S. Ct.
at 1408 (2014). Recent data from the Centers for
Disease Control and Prevention shows that one-third
of women in the United States experience physical
violence by an intimate partner in their lifetime, and
nearly one-quarter of women suffer “severe” physical
violence by an intimate partner, including being
punched or hit with a hard object, being choked or
suffocated, or having guns or knives used on them.11
Individuals convicted of domestic violence offenses
are dangerous both to their intimate partners and to
society at large. Research shows that domestic
abusers are prone to reoffend—they do so at rates as
high as 30 to 40%—and that they often escalate the
violence of encounters when they do. Edward Gondolf,
A 30-Month Follow-Up of Court-Referred Batterers in
Four Cities, 44 Int’l J. Offender Therapy and
Comparative Criminology 111, 119 (2000). Domestic
violence offenders have higher rates of domestic
violence recidivism and higher rates of recidivism
involving other violent crimes, including a general
11 National Center for Injury Prevention and Control, Centers
for Disease Control and Prevention, Intimate Partner Violence in
the United States—2010 (Feb. 2014), www.cdc.gov/violence
prevention/pdf/cdc_nisvs_ipv_report_2013_v17_single_a.pdf.
8
pattern of escalating violence. Castleman, 134 S. Ct.
at 1408.12 Not unexpectedly, individuals with a
history of committing domestic violence are more
likely than other individuals to murder an intimate
partner.13
Studies further confirm what common sense
teaches. Access to guns increases the lethality of
domestic violence incidents: “[p]eople with a history of
committing domestic violence are more likely to
subsequently murder an intimate partner” when a
firearm is in the house.14 Indeed, “[d]omestic assaults
with firearms are approximately twelve times more
likely to end in the victim’s death than are assaults by
knives or fists.” Skoien, 614 F.3d at 643.15 Lethal
12 The Washington State Institute for Public Policy examined
the cases of more than 155,000 people who committed a domestic
violence offense in 2008 and studied the cases for a follow-up
period of three years. During that three-year period, domestic
violence offenders were convicted of a new domestic violence
felony or misdemeanor at four times the rate of nondomestic
violence offenders. Washington State Institute for Public Policy,
Recidivism Trends of Domestic Violence Offenders in Washington
State (Aug. 2013) www.wsipp.wa.gov/ReportFile/1541/Wsipp_
Recidivism-Trends-of-Domestic-Violence-Offenders-in-Washing
ton-State_Full-Report.pdf.
13 Everytown for Gun Safety, Guns and Violence Against
Women, www.everytownresearch.org/documents/2015/09/gunlaws-violence-women-infographic.pdf
(citing Mayors Against
Illegal Guns, Felon Seeks Firearm (2013), www.everytown
.org/article/felon-seeks-firearm).
14 Id.
15 The impact of guns in domestic violence situations is not
limited to homicides. In 2004, more than one-third of female
domestic violence shelter residents in California reported having
been threatened or harmed with a firearm. In homes that
contained a gun, nearly two-thirds of the victims’ intimate
partners had used the firearm against the victim, usually
9
domestic violence and gun-related domestic violence
are inextricably linked. “Over the past 25 years, more
intimate partner homicides in the U.S. have been
committed with guns than with all other weapons
combined.”16 And a woman is five times more likely to
be murdered if a gun is present in an abusive
situation. Id. at 642. This Court has itself recognized
these facts, acknowledging that “[d]omestic violence
often escalates in severity over time . . . and the
presence of a firearm increases the likelihood that it
will escalate to homicide.” Castleman, 134 S. Ct. at
1408. For all these reasons, a National Institute of
Justice report for the Department of Justice
conclusively determined that “[o]ne of the most crucial
steps to prevent lethal [domestic] violence is to disarm
abusers and keep them disarmed.”17
If this were not enough, the danger posed by
domestic violence offenders in possession of firearms
is not limited to their spouses or intimate partners.
Ample empirical evidence shows that individuals with
a history of committing domestic violence offenses are
also more likely to commit violent crimes generally. A
2007 analysis involving more than 300,000 convicts

threatening to shoot or kill her. Susan B. Sorenson et al.,
Weapons in the Lives of Battered Women, 94 Am. J. Pub. Health
1412, 1413 (2004).
16 Everytown for Gun Safety, Guns and Violence Against
Women, www.everytownresearch.org/documents/2015/09/gunlaws-violence-women-infographic.pdf
(citing Mayors Against
Illegal Guns, Felon Seeks Firearm (2013), www.everytown
.org/article/felon-seeks-firearm).
17 Andrew R. Klein, National Institute of Justice, DOJ,
Practical Implications of Current Domestic Violence Research:
For Law Enforcement, Prosecutors, and Judges (June 2009),
www.ncjrs.gov/pdffiles1/nij/225722.pdf.
10
showed that individuals who committed domestic
violence assault were more likely to subsequently
commit a violent felony.18 Felony domestic violence
offenders were more likely than any other group to
commit a subsequent violent felony, and people
convicted of multiple domestic violence misdemeanors
were also prone to commit subsequent violent
felonies—with rates comparable to criminals who
have been convicted of multiple felony assaults.19
Similarly, an Everytown for Gun Safety analysis of
every mass shooting in the United States between
January 2009 and July 2015 found that, in at least
twenty-one of those 133 shootings (16%), the shooter
had previously been charged with a crime of domestic
violence.20
II. Petitioners’ Interpretation of § 922(g)(9)
Would Defeat the Purpose of the
Lautenberg Amendment and Upend the
State and Federal Regulatory Regime.
The federal Gun Control Act “long prohibited
possession of a firearm by any person convicted of a
felony.” Hayes, 555 U.S. at 418. In 1994, Congress
expanded the list of firearms disqualifications by
adding a prohibition against the possession of a
firearm by any person “who is subject to a court order
that . . . restrains such person from harassing,
18 Washington State Institute for Public Policy, Washington’s
Offender Accountability Act: Department of Corrections’ Static
Risk Instrument (Mar. 2007), supra note 6.
19 Id.
20 Everytown for Gun Safety, Analysis of Mass Shootings (Aug.
20, 2015), www.everytownresearch.org/reports/mass-shootingsanalysis.

11
stalking, or threatening an intimate partner . . . or
child.” 18 U.S.C. § 922(g)(8). Despite those provisions,
the federal firearm ban did not adequately reach
domestic abusers, in part because domestic violence
offenses were either charged as, or pleaded down to,
misdemeanors, allowing dangerous abusers to avoid
the prohibition triggered by a felony conviction. See
Hayes, 555 U.S. at 428 (citing 142 Cong. Rec. 22,985
(1996) (statements of Sen. Lautenberg)). In 1996,
Congress sought to close that “dangerous loophole,” id.
(quoting 142 Cong. Rec. at 22,986), when it extended
the gun possession prohibition to include persons
“convicted of a misdemeanor crime of domestic
violence,” § 922(g)(9). As Senator Lautenberg
explained on the Senate floor:
Under current Federal law, it is illegal for
persons convicted of felonies to possess
firearms. Yet, many people who engage in
serious spousal or child abuse ultimately are
not charged with or convicted of felonies. At
the end of the day, due to outdated laws or
thinking, perhaps after a plea bargain, they
are, at most, convicted of a misdemeanor. In
fact, Mr. President, most of those who commit
family violence are never even prosecuted.
When they are, one-third of the cases that
would be considered felonies, if committed by
strangers are, instead, filed as misdemeanors.
The fact is, that in many places today,
domestic violence is not taken as seriously as
other forms of criminal behavior. Often, acts
of serious spouse abuse are not even
considered felonies.
142 Cong. Rec. S8831 (daily ed. July 25, 1996)
(statements of Sen. Lautenberg). To ensure that both
12
problems were addressed, Congress enacted
§ 922(g)(9) as a broad, “zero tolerance,” “no margin of
error” prohibition on the possession of firearms by
those with any conviction of a misdemeanor involving
domestic abuse.21 Id. at S8831-32. The purpose of the
Lautenberg Amendment, therefore, was to remedy the
“potentially deadly combination” of “[f]irearms and
domestic strife.”22 Hayes, 555 U.S. at 427.
“[A] misdemeanor crime of domestic violence” is
defined as an offense that (1) “is a misdemeanor under
Federal, State, or Tribal law,” (2) “has, as an element,
the use or attempted use of physical force, or the
threatened use of a deadly weapon,”23 and (3) is
committed by a person whose relationship to the
victim is defined by the statute. 18 U.S.C.
21 “This amendment, very simply, would establish a policy of
zero tolerance when it comes to guns and domestic violence. The
amendment would prohibit any person convicted of domestic
violence from possessing a firearm. . . . There is no margin of
error when it comes to domestic abuse and guns. A firearm in the
hands of an abuser all too often means death. By their nature,
acts of domestic violence are especially dangerous and require
special attention.” 142 Cong. Rec. S10377-78 (daily ed. Sept. 12,
1996) (statements of Sen. Lautenberg) (emphasis added).
22 See 142 Cong. Rec. S10377 (daily ed. Sept. 12, 1996) (stating
the purpose of the amendment was “[t]o prohibit persons
convicted of a crime involving domestic violence from owning or
possessing firearms”).
23 “[Section] 922(g)(9) is the product of a legislative
compromise. The provision originally barred gun possession for
any ‘crime of domestic violence,’ defined as any ‘felony or
misdemeanor crime of violence, regardless of length, term, or
manner of punishment.’ Congress rewrote the provision to
require the use of physical force in response to the concern ‘that
the term crime of violence was too broad, and could be interpreted
to include an act such as cutting up a credit card with a pair of
scissors[.]” Castleman, 134 S. Ct. at 1415-16 (citations omitted).
13
§ 921(a)(33)(A). Of the three elements of the
statutory definition, “none specifies a particular—or
minimum—mens rea.” United States v. Booker, 644
F.3d 12, 18 (1st Cir. 2011) (emphasis added). By not
limiting application of the new firearm prohibition to
statutes requiring any particular mens rea, Congress
ensured that state charging practices and variations
in state misdemeanor definitions did not impede its
goal of disarming domestic abusers nationwide.
Had Congress intended to include a particular or
minimum mens rea, it clearly knew how to do so,
because it included such a requirement in the
provision that directly preceded the Lautenberg
Amendment. The text of what was ultimately enacted
as § 922(g)(9) was passed as part of the Omnibus
Consolidated Appropriations Act of 1997. See United
States v. Hartsock, 347 F.3d 1, 4 (1st Cir. 2003). The
provision enacting § 922(g)(9) is found at § 658 of that
Act. See Omnibus Consolidated Appropriations Act of
1997, Pub. L. No. 104-208, § 658, 110 Stat. 3009, 3009-
371 to -372. The provision that directly preceded it
amended 18 U.S.C. § 922(q), which made it “unlawful
for any individual knowingly to possess a firearm . . .
at a place that the individual knows, or has reasonable
cause to believe, is a school zone.” Pub. L. No. 104-208,
§ 657, 110 Stat. at 3009-370 (emphasis added).
The juxtaposition of §§ 657 and 658, therefore,
demonstrates that Congress could have specified a
mens rea requirement for misdemeanor crimes of
domestic violence had it wanted to. The fact that
Congress chose not to is a clear signal of Congress’s
intent that § 922(g)(9) encompass all misdemeanor
domestic violence crimes, whether inflicted intentionally
or recklessly. DePierre v. United States, 131 S.Ct.
2225, 2234 (2011) (noting that, generally “when the
legislature uses certain language in one part of the
14
statute and different language in another, the Court
assumes different meanings were intended.” (quoting
Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9
(2004))).
It was the drafters’ view that all convicted domestic
abusers—including those who have committed
misdemeanors—are dangerous. See 142 Cong. Rec.
S8831 (daily ed. July 25, 1996) (statements of Sen.
Lautenberg) (explaining that the amendment, “[i]n
simple words,” says that “wife beaters and child
abusers should not have guns”). To exclude
convictions based on recklessness would create a
hierarchy of domestic violence crimes, leaving a
limited number of “misdemeanor crimes of domestic
violence” as predicate acts for purposes of § 922(g)(9).
That is precisely the scenario Congress sought to avoid
by enacting the Lautenberg Amendment. In enacting
§ 922(g)(9) to “‘close [a] dangerous loophole’” in federal
gun laws, Castleman, 134 S. Ct. at 1409, Congress
intended to keep guns out of the hands of all
individuals who had been convicted of committing
violence against intimate partners and other domestic
relations, regardless of whether that violence was
classified as a misdemeanor or a felony. And Congress
wrote a law that does precisely that. This Court
should decline Petitioners’ invitation to rewrite our
federal gun laws—and severely undermine public
safety—by excluding “recklessness” crimes from
§ 922(g)(9)’s scope.
15
III. Petitioners’ Interpretation of § 922(g)(9)
Would Allow Domestic Violence
Misdemeanants in at Least Thirty-Five
Jurisdictions to Legally Possess Guns.
This Court should not exclude reckless misdemeanor
crimes of domestic violence from the reach of
§ 922(g)(9) because doing so would be contrary to the
purpose of the Lautenberg Amendment and would
have significant negative consequences for public
health and safety. Excluding from the definition of
“misdemeanor crime of domestic violence” any offense
with a mens rea that extends to recklessness would
dramatically shrink the universe of crimes that count
as predicate convictions for purposes of § 922(g)(9)—
introducing a gaping loophole in the law in at least
thirty-five jurisdictions and undermining Congress’s
decision to enact a federal solution to a national
problem.
The prototypical predicate misdemeanor under
§ 922(g)(9) is a conviction for simple assault or battery.
See Castleman, 134 S. Ct. at 1413. The Maine assault
statutes under which Petitioners were convicted are
substantively similar to the assault statutes in many
other States, most of which have adopted an identical
or nearly identical definition of “recklessness.” If the
Court adopts Petitioners’ interpretation, far fewer
convictions under these statutes would be predicate
crimes for purposes of § 922(g)(9), and many more
convicted domestic abusers would have legal access to
firearms. This would be true regardless of whether
those abusers were convicted based on intentional or
reckless conduct.
Under Maine law, a person may be convicted of
misdemeanor assault by “intentionally, knowingly or
recklessly” causing “bodily injury or offensive physical
16
contact.” Me. Rev. Stat. tit. 17-A, § 207 (emphasis
added). That definition is similar to the Model Penal
Code definition of simple assault. See Model Penal
Code § 211.1(1)(a) (defining “simple assault” as inter
alia “attempt[ing] to cause or purposely, knowingly or
recklessly caus[ing] bodily injury to another”)
(emphasis added). It is also similar to both Federal
law, which permits a misdemeanor assault conviction
based on recklessness, see Resp. Br. at 19-20, 40-41,
and to the law as it existed at the time the Lautenberg
Amendment was enacted in an overwhelming
majority of other jurisdictions—thirty-four States and
the District of Columbia—which also permit a
misdemeanor assault conviction with a mens rea of
recklessness or its equivalent, see Resp. Br. App. B at
7a-19a (listing, by State, statutes that permit
conviction for misdemeanor assault with a mens rea of
recklessness or a lesser mental state).
Most of these States define “recklessness” in the
same terms, or nearly the same terms, as Maine does.
Under Maine law, recklessness includes acts that
involve a “conscious[] disregard [of] a risk that the
person’s conduct will cause” such a result. Me. Rev.
Stat. tit. 17-A § 35. The statute further requires that
the disregard be a “gross deviation from the standard
of conduct” followed by a reasonable person in that
situation. Id. The Model Penal Code definition is
essentially the same. Model Penal Code § 2.02(2)(c)
(recklessness requires conscious disregard of risk that
is a “gross deviation from the standard of conduct that
a law-abiding person would observe”). The law of
simple assault and battery in those jurisdictions has
not materially changed since 1996, and today, those
jurisdictions are home to nearly 190 million
Americans. See U.S. Census Bureau, Population
17
Estimates, State Totals: Vintage 2015 (Dec. 22, 2015),
www.census.gov/popest/data/state/totals/2015.
Thus, Congress’s decision to include misdemeanor
crimes of domestic violence within the scope of
§ 922(g)(9) implies the decision to include reckless
conduct within its scope as well. It is presumed that
Congress, when it enacts legislation, “is knowledgeable
about existing law pertinent to the legislation it
enacts.” Goodyear Atomic Corp. v. Miller, 486 U.S.
174, 185 (1988); see also Cannon v. Univ. of Chic., 441
U.S. 677, 696-97 (1979) (“It is always appropriate to
assume that our elected representatives, like other
citizens, know the law . . . .”). It is untenable to
conclude that Congress, in crafting a federal solution
to a nationwide problem, would have enacted a statute
that would be a “practical nullity,” Castleman, 134 S.
Ct. at 1418-19. Nothing in the text, history, or context
suggests that Congress intended the Lautenberg
Amendment to be so narrow.
Moreover, at the time that the Lautenberg Amendment
was passed, one factor differentiating between
misdemeanor and felony assault offenses in certain
States was the mens rea requirement. For instance,
in Maryland, in order to convict a person of felony
assault, a prosecutor must prove intentional conduct,
but the required showing for a misdemeanor
conviction is only recklessness. See Md. Code Ann.
Crim. Law §§ 3-202 (felony statute), 3-203(a)
(misdemeanor statute); Johnson v. State, 115 A.3d
668, 673 (Md. Ct. Spec. App.) (“Assault is causing
offensive physical contact to another person” that “was
the result of an intentional or reckless act of the
defendant and was not accidental.”) (citations
omitted), cert. denied, 122 A.3d 975 (Md. 2015) (Tbl.).
The same is true of Ohio, where felony assault
18
required in 1996—as it does today—at least knowing
conduct, but misdemeanor assault may be proved
with evidence of recklessness. See Ohio Rev. Code
Ann. §§ 2903.11 (A) (felony statute); § 2903.13 (A), (B)
(misdemeanor statute). While mens rea is not
necessarily the dividing line between felonies and
misdemeanors, see Resp. Br. at 47, § 922(g)(9)’s
effectiveness would be restricted by ignoring state-law
distinctions like these.
Accepting Petitioners’ invitation to exclude from the
scope of § 922(g)(9) offenses that extend to reckless
conduct would frustrate Congress’s intent under
either of the two prevailing approaches to determining
whether a predicate conviction is a “misdemeanor
crime of domestic violence.” Under the so-called
“categorical approach,” a court “consider[s] the offense
generically, that is to say, [it] must examine it in terms
of how the law defines the offense and not in terms of
how an individual offender might have committed it
on a particular occasion.” Begay v. United States, 553
U.S. 137, 141 (2008). Accordingly, a conviction is
assumed to be based on the least severe conduct
described by the statute. Hoodho v. Holder, 558 F.3d
184, 189 (2d Cir. 2009). Thus, if an individual is
convicted under a domestic violence statute that
criminalizes intentional, knowing, and reckless
conduct, the offense would be deemed to rest on
recklessness, regardless of the actual facts. Under
Petitioners’ interpretation, abusers convicted under
statutes requiring application of the categorical
approach would no longer be subject to § 922(g)(9).
Such a result would gut the protections offered by
those state statutes and allow many convicted
domestic abusers—including those who engaged in
knowing or intentional conduct, as well as those who
engaged in reckless conduct—legal access to firearms.
19
The result is unacceptable even when a
misdemeanor domestic violence statute may be
analyzed under a modified categorical approach. A
modified categorical approach can be applied only
when (1) a defendant was convicted under a “divisible”
statute and (2) certain categories of judicial records
contain facts sufficient to identify the relevant conduct
underlying the conviction. Descamps v. United States,
133 S. Ct. 2276, 2285 (2013). A statute is divisible if
the elements of a statute of conviction are stated in the
alternative, such that the offense in fact “comprises
multiple, alternative versions of the crime.” Id. at
2284.24 The “modified categorical” approach requires
application of a “highly technical” framework to the
facts of a case, id. at 2295 (Alito, J., dissenting), based
on a limited and circumscribed set of documents. A
court may consider certain facts underlying the prior
conviction only for which there is “adequate judicial
record evidence” (so-called “Shepard” documents)
rather than just the legal definition of the offense.
Shepard v. United States, 544 U.S. 13, 16 (2005). That
approach is “not always easy to apply.” Nijhawan v.
Holder, 557 U.S. 29, 35 (2009).
A conviction for intentional or knowing conduct
under a divisible statute could be a § 922(g)(9)
predicate under Petitioners’ interpretation, but
determining whether it was would require a “highly
technical” analysis specific to each conviction. The
States’ different formulations of the mens rea element
of their assault statutes (including common law
formulations that do not use the word “reckless”) do
24 On January 19, 2016, the Court granted the petition for a
writ of certiorari in Mathis v. United States, No. 15-6092, to
resolve a circuit split over the conditions under which a statute is
divisible.
20
not easily permit black-and-white determinations.
Additionally, in many instances—as in Petitioners’
cases—there will not be adequate Shepard documents.
Thus, it will be impossible for a court to conclude that
a particular conviction qualifies as a predicate offense
under § 922(g)(9)—even when the conviction, in fact,
involved knowing or intentional conduct. Inserting
additional complexity into an already difficult analysis
will increase the likelihood that individuals, who
Congress intended to prohibit from possessing guns,
will be legally permitted to do so.
The administrative complexities of a modified
categorical approach would hamstring NICS, on which
the federal government and the States rely to keep
guns out of the wrong hands. Pursuant to 18 U.S.C.
§ 922(t)(1), any person convicted of a “misdemeanor
crime of domestic violence” is prohibited from
possessing firearms, and this prohibition is enforced
through a NICS background check conducted by
a licensed firearm dealer.25 Whenever a NICS
background check determines that transfer of a
firearm to a would-be gun buyer would cause a
violation of § 922(g), NICS instructs the dealer to deny
the sale.26 18 U.S.C. § 922(g). Thus, it is crucial that
25 Section 922(g)(9) prohibits a person convicted of a predicate
offense from possessing a firearm. But there is no federal law
that requires disqualified persons to surrender their firearms to
government authorities, and the relevant state laws vary
significantly. See Everytown for Gun Safety, Guns and Violence
Against Women: America’s Uniquely Lethal Domestic Violence
Problem (2014), www.everytownresearch.org/documents/2015/
04/guns-and-violence-against-women.pdf.
26 See Criminal Justice Information Services Division, FBI,
National Instant Criminal Background Check System (May
2015), www.fbi.gov/about-us/cjis/nics/general-information/nicsoverview-brochure.
In 2014, NICS prevented more than 6,000
21
NICS function effectively, which in turn requires that
all prohibiting records be properly reported in NICS,
and that any such record in the system trigger a denial
whenever a background check is run in association
with an attempted gun purchase.27 But NICS is
already overwhelmed by a “perfect storm” of record
gun sales and understaffing.28 Adopting Petitioners’
position would exacerbate the problem. It would
require NICS to employ the “modified categorical”
approach in many cases to discern the mens rea of the

transactions that were prohibited by reason of a misdemeanor
crime of domestic violence conviction. Criminal Justice
Information Services Division, FBI, National Instant Criminal
Background Check System (NICS) Operations 2014, 18 (2014),
www.fbi.gov/about-us/cjis/nics/reports/2014-operations-report.
Since inception, federal use of NICS has prevented the purchase
of guns by individuals previously convicted of a misdemeanor
crime of domestic violence more than 110,000 times. Id. The
number is significantly higher when state-level data is included
as well. Between 1999 and 2010, state and local agencies denied
approximately 144,000 purchase applications because of a
conviction for a misdemeanor crime of domestic violence. See
Bureau of Justice Statistics, DOJ, Background Checks for
Firearms Transfers, 2010-Statistical Tables, Table 2 (Feb. 2013)
www.bjs.gov/content/pub/pdf/bcft10st.pdf. Currently, NICS
includes at least 112,000 records for misdemeanor crimes of
domestic violence. Criminal Justice Information Services
Division, FBI, National Instant Criminal Background Check
System (NICS) Operations 2014, supra note 26 at 25.
27 See GAO, Gun Control Opportunities to Close Loopholes in
the National Instant Criminal Background Check System, 19-22
(July 2002), www.gao.gov/assets/240/235091.pdf (describing
challenges in determining whether convictions reported in NICS
are prohibitive.
28 See Kevin Johnson, FBI Official: “Perfect Storm” Imperiling
Gun Background Checks, USA Today, Jan. 20, 2016, www.
usatoday.com/story/news/nation/2016/01/19/fbi-guns-background
-checks/78752774.
22
particular defendant and its significance under the
specific statute. But missing details in the records of
many domestic assault misdemeanor convictions will
preclude NICS from determining whether a conviction
qualifies as a prohibiting misdemeanor crime of
domestic violence within the three-day window
allowed under the background check law. And
individuals Congress sought to prohibit from
purchasing firearms will be permitted to do so.29 Such
a result would violate Congress’s intent to establish a
straightforward regime and eviscerate its “zero
tolerance” policy.
Eviscerating § 922(g)(9) in thirty-five jurisdictions
would be particularly unworkable in light of the
national nature of the problem of illegal firearms.
Guns are easily transported across State lines from
States with weak gun laws into States with stronger
laws.30 In light of this reality, Congress determined
29 Allowing firearms sales to proceed when a background check
cannot be completed within three days can have tragic results: it
was because NICS agents could not be resolve his background
check within the three-day window that Dylan Roof was
permitted to purchase the .45-caliber handgun he allegedly used
to kill nine people at an evening Bible study in downtown
Charleston, South Carolina in June 2015. Id.
30 Mayors Against Illegal Guns, Trace the Guns, The Link
Between Gun Laws and Interstate Gun Trafficking, 4, 29 (Sept.
2010), http://tracetheguns.org/report.pdf (reporting that, in 2009,
more than 40,000 guns used to commit a crime were purchased
across state lines, disproportionately in states with relatively less
restrictive gun laws); see also Brian Knight, State Gun Policy and
Cross-State Externalities: Evidence from Crime Gun Tracing, at
25 (Nat’l Bureau of Econ. Research, Working Paper No. 17469,
2011), www.princeton.edu/rppe/speaker-series/speaker-series-
2011-12/Knight.pdf (concluding that “trafficking flows respond to
gun regulations, with guns imported from states with weak gun
laws into states with strict gun laws”).
23
that federal legislation was necessary to effectively
implement gun safety laws. Congress designed § 922
to serve as a federal baseline for categorically
prohibiting the most dangerous types of criminal
offenders—including domestic abusers who act
recklessly or plead down to crimes of recklessness—
from possessing firearms. 18 U.S.C. § 922. Excluding
reckless misdemeanors from the scope of § 922(g)(9)
would allow many convicted domestic abusers to
legally skirt this prohibition. It would also fly in the
face of Congress’s stated purpose in passing the
Lautenberg Amendment.
CONCLUSION
For the reasons set forth herein, the decision below
should be affirmed.
Respectfully submitted,
J. ADAM SKAGGS
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN
SAFETY
P.O. Box 4184
New York, NY 10163
(646) 324-8201
ANTONIO J. PEREZ-MARQUES
Counsel of Record
DAVID B. TOSCANO
JILLIAN RENNIE STILLMAN
ANTONIO M. HAYNES
NICK M. AXELROD
ADRIENNE L. ADKINS
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4559
[email protected]
Counsel for Amicus Curiae
January 26, 2016