Firearm Ban for Committing Domestic Violence Upheld

A lifetime firearms ban is upheld for convictions of misdemeanor crimes of domestic violence, including a conviction for reckless domestic assault 

Voisine v. United States, U.S., 14–10154, 6/27/16.

   The Supreme Court upheld a federal law that creates a lifetime ban for those convicted of domestic violence crimes, including misdemeanors, from owning a firearm. The Court analyzed the statutory text, coupled with the context of the passage of the act prohibiting firearm ownership, and recognized the recklessness standard for triggering the ban. The Court focused on the statute’s reference of “use…of physical force,” noting that there was no distinction between domestic assaults that were knowingly or intentionally committed and those that were committed recklessly when such force was used. The court continued by saying thee ultimate purpose of the statute was “to take guns out of the hands of abusers convicted under the misdemeanor assault laws then in general use in the States,” which the majority of states have already extended to encompass reckless assaults.

http://src.bna.com/ggr

Tribal Sovereignty Upheld as Right to Counsel Does Not Extend to Tribal Courts

The Supreme Court found that misdemeanor domestic violence convictions in tribal courts can be considered predicate offenses under the Violence Against Woman Act, even when defendants are without counsel in earlier tribal convictions.

United States v. Bryant, 2016 BL 187309, U.S., No. 15-420, 6/13/16.

   In resolving a circuit split, the Supreme Court ruled that misdemeanor domestic violence convictions in tribal court can qualify as predicate offenses for the Violence Against Women Act (VAWA). The underlying question was whether these earlier convictions in tribal court, where counsel was not appointed, violated due process. The court found that these convictions complied with the Indian Civil Rights Act, thereby avoiding any due process claims under the Sixth Amendment, which does not extend to tribal court proceedings to maintain the court’s sovereignty.

   The “Indian Civil Rights Act, which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year's imprisonment is imposed. [Defendant’s] tribal-court convictions, it is undisputed, were valid when entered.” Since the convictions were constitutional, they could count towards VAWA’s provisions regarding domestic violence on Indian reservations, which require any subsequent conviction after two previous convictions to be considered a felony.

http://www.bloomberglaw.com/public/document/United_States_v_Bryant_No_15420_2016_BL_187309_US_June_13_2016_Co.

Can't Frisk Based On Domestic Violence Alone

A police report of "domestic violence" does not, by itself, give justification for the police to frisk a person for weapons.

 

Thomas v. Dillard, 2016 BL 106710, 9th Cir., No. 13-55889, 4/5/16

     The Ninth Circuit Court of Appeals ruled that a simple report of "domestic violence" cannot automatically give rise to a reasonable suspicion to frisk because domestic violence involves a broad array of crimes, many of which do not necessarily involve weapons.

     This is different from other crimes, like bank robbery or drug trafficking, which almost always involve weapons and automatically give investigators sufficient reasonable suspicion to stop and frisk.

http://www.bloomberglaw.com/public/desktop/document/Thomas_v_Dillard_No_1355889_2016_BL_106710_9th_Cir_Apr_05_2016_Co?1462979570

Iowa's Medical Hearsay Rule Stays Firm

An attacker-identifying statement made by an adult victim of domestic abuse to a health-care professional is not automatically admissible.

 

State v. Smith, 2016 BL 66012, Iowa, No 13-1202, 3/4/16

     The Iowa Supreme Court ruled that even though statements made by child victims to health-care providers are routinely admitted, identifying statements made by adult victims will not be automatically admissible.

     The state wanted to court to follow other jurisdictions, including the 10th Circuit, which allow these identifying statements because the identity of the abuser is pertinent and necessary to the victim's treatment. However, the court ruled that it would require the state to prove on a case-by-case basis how the identification of the abuser was necessary to provide treatment.

http://www.bloomberglaw.com/public/desktop/document/State_v_Smith_No_131202_2016_BL_66012_Iowa_Mar_04_2016_Court_Opin?1458314791

Under INA, State Assault Removable As "Domestic Violence"

A foreign citizen's conviction of assault under state law can qualify as removable under the INA even though the state offense had no "domestic relationship" element.

 

Hernandez-Zavala v. Lynch, 2015 BLL 382973, 4th Cir., No. 14-1878, 11/20/15

 

Removing Domestic Violence 

 

    Even though the state offense of assault did not include a "domestic relationship element" it can qualify as a removable "crime of domestic violence" under the Immigration and Nationality Act.

    The U.S. Court of Appeals for the Fourth Circuit answered a question that was "a purely legal one: whether a conviction under a state law that does not have a domestic violence relationship as an element of the offense can constitute a 'crime of domestic violence."

 

    In this case, the original conviction was of assault with a deadly weapon under N.C. Gen. Stat. §14-33(c)(1). There was no dispute that the defendant had a domestic relationship with the woman that he was convicted of assaulting. The defendant argued that that fact did not disqualify him for having his removal cancelled, because the state statute did not require or mention domestic relationship as part of the crime.

 

    The court held that it was proper to apply a circumstance-specific approach rather than a narrower categorical approach to determine if the state offense qualified as a crime of domestic violence. This ruling creates a circuit split with the Ninth Circuit which rejected the circumstance-specific approach. Tokatly v. Ashcroft, F.3d 613 (9th Cir. 2004).

  

    The court indicated that, under the Immigration and Nationality Act, 8 U.S.C. §1227(a)(2)(E)(i), an "alien convicted of a crime of domestic violence" can be deported. Therefore, the immigrant in question is ineligible for cancellation of removal under §1229(b)(1)(C).

 

The Other Approach

 

    The other approach that the court considered was the categorical approach. This approach is based on seeing if the state offense fits the generic definition of the corresponding federal crime.

 

    Under this approach a state offense will fit if it involves "facts equating to" the federal offense. However, the court said that, if the federal statute describes specific acts rather than a generic offense, the "circumstance-specific approach is appropriate," because it allows courts to "consider other evidence to see if the necessary attendant circumstances existed."

 

    The U.S. Supreme Court, in United States v. Hayes, 555 U.S. 415 (2009), determined that the circumstance-specific approach was proper when considering "a criminal statute with nearly identical statutory text" to the INA provision here. In that situation, the Supreme Court found that applying the categorical approach would frustrate Congress's intent because two-thirds of states did not have laws specifically prohibiting domestic violence, in essence rendering the law moot.