Federal law prohibits anyone convicted of a domestic violence misdemeanor from possessing firearms. (18 U.S.C. § 922(g); see Can someone possess a gun after a criminal conviction?) For these purposes, a “misdemeanor crime of domestic violence” includes a misdemeanor involving the use of “physical force” against a domestic relation.
In 2014, the U.S. Supreme Court determined that the term “force” doesn’t mean just violent force. Instead, “force” applies to both violent acts and offensive touching. So, an offensive rather than violent act against a person in a “domestic” relationship with the defendant—even if the act doesn’t cause any injury—could trigger the firearm prohibition. (United States v. Castleman, 12-1371 (2014).)
Having already decided that a conviction for a “knowing or intentional” domestic assault invokes the gun ban, the Court looked in 2016 at whether a “reckless” domestic assault does the same.
In Voisine v. U.S., two men pleaded guilty to domestic violence offenses in cases arising out of separate incidents. (579 U.S. ___ (2016).) The first man pleaded guilty under Maine law to assaulting his girlfriend. The Maine law made it a misdemeanor to “intentionally, knowingly or recklessly” cause physical injury to another. The second man pleaded guilty to assaulting his wife in violation of a Maine domestic violence law that made it a misdemeanor to assault a family or household member. (Again, the statute prohibited “intentionally, knowingly or recklessly” injuring another.)
Both men argued that they weren’t barred from having guns due to their domestic violence convictions because those convictions could have been based on reckless—rather than knowing or intentional—conduct. They claimed that their convictions didn’t qualify as “misdemeanor crimes of domestic violence.”
The U.S. Supreme Court rejected that argument, holding that a misdemeanor reckless domestic assault does in fact count as a misdemeanor crime of domestic violence under the federal gun-prohibition law. The Court said that it’s not necessary that a defendant who applies force to a domestic relation “have the purpose or practical certainty” that it will cause harm. Understanding that it is “substantially likely to do so”—in other words, acting in conscious disregard of a substantial risk of harm—is enough.
An example of a potentially reckless use of force cited by the court is a man angrily throwing a plate against a wall, near his wife. The key question there would be whether the man “recognized a substantial risk” that a shard would ricochet and injure her.