BUSY DAY AT THE FOURTH[Posted April 16, 2007] The Fourth Circuit on Monday hands down eleven opinions, only one of which is published; and amends several local rules and one internal operating procedure.
The published case is US v. Hayes, a West Virginia criminal case involving the alleged possession of firearms by a person previously convicted of a misdemeanor involving domestic violence. If a person has been convicted of a felony, most lawyers know that subsequent possession of firearms is a felony. But few people know about 18 USC §§922(g)(9) and 924(a)(2); those provisions deny the right to bear arms to those convicted of a mere misdemeanor, as long as that crime meets the definition of a “misdemeanor crime of domestic violence.”
Hayes was convicted in 1994 of simple assault; the victim was his then wife. Today’s opinion notes that he lived with her at the time, and the two had a child together. He was arrested in 2004 and some firearms were found within his possession. Pretty cut and dried, right?
The district court thought so, and denied a motion to dismiss the indictment, but Hayes’s lawyer had other ideas. He persuaded the district court to permit Hayes to enter a conditional plea (the government consented, which is one of the requirements for such a plea), and after sentencing, the parties headed to Richmond.
Today, fortune smiles upon Hayes, in the form of a 2-1 ruling reversing the conviction and remanding the case. The reason for this seemingly anomalous ruling is the court’s determination that the elements of the underlying offense (here, the simple assault) must include a domestic component for the crime to serve as the basis for the new prosecution. And since the 1994 conviction did not have a domestic component — it was just plain old assault, as far as the docket was concerned — that means Hayes doesn’t fall within the statute’s purview.
This opinion is interesting for a couple of additional reasons. One is that the court reverses an earlier opinion (albeit an unpublished one) handed down by another panel of the court in 2001. That ruling, US v. Ball, 7 Fed. App’x 210 (4th Cir. 2001), had held that as long as the victim was indeed a domestic partner of the perpetrator, it mattered not what the elements of the offense were. As of today, that’s no longer good law around here – but be on the lookout for an en banc petition from the government, which is eminently foreseeable.
Second, Judge Williams authors an eight-page dissent that includes the following language: “In ruling as we do today, we are not in the minority on this issue, we are the minority. The nine circuits that have considered the question in a published opinion have uniformly rejected the interpretation advanced by the majority.” She then cites cases from the First, Second, Fifth, Eighth, Ninth (yup; them, too), Tenth, Eleventh, Federal, and D.C. Circuits, all of which apparently hold that the federal statute only requires that “the mode of aggression, and not the relationship status between the perpetrator and the victim, must be an element of the predicate misdemeanor offense.”
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The court also announces several revisions and renumberings of local rules and the revision of an IOP that deals with membership in the Judicial Conference. The changes affect the transmission of the record from the district court to the Fourth, plus the sealing of original records and the filing of redacted copies of documents to comply with the E-Government Act of 2002. If you’d like to see the court’s summary of the changes, you can click here.