United States v. Hayes

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Authorship:Amy Harmon

Contents

[edit] Briefs and Documents

Docket: 07-608

Issue: Whether, to qualify as a “misdemeanor crime of domestic violence” under 18 USC 922(g)(9), the offense must have as an element a domestic relationship between the offender and the victim.

Merit briefs

Amicus briefs

Oral Argument Transcript

Opinion REVERSED in an opinion by Justice Ginsburg

[edit] Pre-Argument Articles

[edit] Grant write-up

[edit] Argument Preview

Does 18 U.S.C. § 922(g)(9), which prohibits anyone convicted of a “misdemeanor crime of domestic violence” from possessing a firearm, apply only to offenders convicted of crimes that specifically have as an element a domestic relationship between the offender and the victim, or does it apply more broadly to any misdemeanor crime of violence that involves a domestic relationship, even if that relationship is not an element of the offense? The Supreme Court will consider this question next fall in No. 07-608, United States v. Hayes.

In 2005, respondent Randy Edward Hayes was indicted on three counts of violating 18 U.S.C. § 922(g)(9). A superseding indictment alleged that Hayes was convicted in 1994 in West Virginia of a misdemeanor crime of domestic violence (“MCDV”), which – as relevant here – 18 U.S.C. § 921(a)(33)(A) defines as a crime that is a misdemeanor under state law and “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current … spouse.” Although Hayes was, in fact, convicted in 1994 of battering his then-wife, he moved to dismiss the superseding indictment on the ground that the 1994 conviction was not an MCDV. To qualify as an MCDV, Hayes argued, the predicate offense must have, as an element, a domestic relationship between the victim and the perpetrator – an element that was not present in the West Virginia simple battery statute under which he was convicted. Relying on the Fourth Circuit’s unpublished decision in United States v. Ball, in which the court held that Section 921(a)(33)(A) does not require a domestic relationship element, the district court denied Hayes’ motion, and Hayes entered a conditional guilty plea to one count of violating Section 922(g)(9).

On appeal, the Fourth Circuit reversed. The court recognized that it was taking the minority position by holding that Section 921(a)(33)(A) requires a domestic relationship element, as at least eight other circuits have ruled to the contrary. However, in the majority’s view, the plain and unambiguous language of Section 921(a)(33)(A) prevails over any legislative intent to be garnered from the “sparse” legislative history, which does not clarify whether a domestic relationship is a requisite element. Turning to rules of statutory construction, the majority relied on the rule of the last antecedent – which mandates reading a limiting phrase as modifying only the noun of the phrase immediately before it – to conclude that the requirement that an offense be “committed by” someone with a domestic relationship to the victim modifies the phrase beginning “has, as an element” rather than the noun “offense.” And although the court deemed Congress’s use of the singular “element” as insignificant, it relied on the semicolon at the end of Section 921(a)(33)(A)(i) and the absence of any semicolon before “committed by” in Section 921(a)(33)(A)(ii) as reflecting Congress’s intent to separate the clauses, and its simultaneous lack of intent to restrict “has, as an element” to the “use of force” phrase. Finally, even to the extent that any ambiguity remains in the statute, the majority concluded that the rule of lenity required it to rule in Hayes’s favor.

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Judge Williams dissented. In her view, Section 921(a)(33)(A) does not require a domestic relationship element. Rather, the statute’s use of the singular term “element” signifies Congress’s intent to require only one element, the use of force. She also disputed the majority’s reliance on punctuation and application of the rule of last antecedent, and she found fault in the majority’s use of legislative history and intent. In her dissent, Judge Williams found particularly significant that Section 922(g) would have been a “dead letter” in most states if a domestic relationship was required, because when it was enacted most states charged domestic violence crimes as general assaults. Furthermore, she maintained, reliance on congressional intent was unwarranted because the statute’s plain and unambiguous meaning is apparent, and the majority’s selective reliance on legislative history was misleading because that history contains direct evidence to support the dissent’s position.

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After the Fourth Circuit denied its petition for rehearing, the United States filed a petition for certiorari. In the petition, it asserted that certiorari was warranted because the Fourth Circuit’s decision was erroneous: Section 921(a)(33)(A), plainly read, requires only the element of force. Any alternate reading runs contrary to Congress’s intent of prohibiting domestic violence misdemeanants from possessing guns. When Congress enacted the statute, the government explained, it knew that the federal government and more than half of the states did not have domestic violence misdemeanor statutes with a domestic relationship element, and that DV offenses were normally prosecuted under laws without that element. Thus, according to the government, a reading that requires both elements would have rendered the statute inapplicable to most states when passed.

The United States also argued that certiorari was warranted to resolve the sharp split between the Fourth Circuit in this case and the contrary holdings of nine other circuits. That split, the United States contended, will not be resolved without Supreme Court intervention; moreover, failure to resolve the split will continue to inhibit enforcement of Section 922(g). Recently enacted domestic violence statutes containing a domestic relationship element will not solve the problem, the United States explained, because prosecutors may still charge under, or accept plea bargains pursuant to, other statutes that do not require a domestic relationship, resulting in inconsistent application of the possession statute. The United States also predicted further adverse effects if the decision below is permitted to stand, including placing a burden on the administration of the federal background check system mandated by the Brady Handgun Violence Prevention Act (“BHVPA”) and creating confusion among defendants who would be legally allowed to possess a firearm in the Fourth Circuit but would be unable to do so when they move to a state in another circuit.

Opposing certiorari, Hayes relied on a Department of Justice regulation defining a misdemeanor crime of domestic violence to defend the Fourth Circuit’s interpretation of Section 921(a)(33)(A). Hayes contrasted the regulation, which placed the “committed by” phrase in a separate third clause, thereby reflecting DOJ’s intent to require a domestic relationship element, with Congress’s failure to create a comparable separate clause. Hayes also agreed with various aspects of the Fourth Circuit’s reasoning, including its characterization of the legislative history as an “unreliable guide,” its position that Congress’s use of “element” is irrelevant, and its application of the rule of the last antecedent. Noting Congress’s reliance on varying state law to formulate Section 921(a)(33)(A), Hayes contended that Congress did not intend Section 922(g) to apply uniformly nationwide. And in any event, Hayes emphasized, certiorari is not warranted because the rule of lenity would dictate the same outcome as in the court below.

Turning to the government’s argument that the Fourth Circuit’s decision would confuse domestic violence offenders who move from one state to another as misplaced, Hayes dismissed that concern – as well as its worry about burdening officials charged with enforcing the BHVPA – as unwarranted. He also disputed the government’s contention that Supreme Court review was necessary to resolve the question presented, emphasizing that twenty-four states (including four of the five in the Fourth Circuit) now have domestic battery statutes with a domestic relationship element, such that Section 922(g) can now be enforced against most domestic violence misdemeanants. Nor, in Hayes’s view, did the conflict between the decision below and the holdings of nine other circuits warrant certiorari: instead, he argued, the Court should wait to allow those circuits to have the opportunity to follow the Fourth Circuit’s correct decision.

Alternatively, Hayes urged the Court to decline review on the ground that the question presented was not outcome-determinative. He argued that – contrary to Supreme Court precedent – the government presented extrinsic evidence at his plea hearing to prove that his previous conviction was a misdemeanor crime of domestic violence.

In its reply brief at the certiorari stage, the government maintained that the issue is important and that the legislative fixes are irrelevant because: (1) many states still do not have misdemeanor domestic violence laws, (2) the states that have enacted such laws can and will continue to charge and accept pleas to other offenses that will not satisfy the Fourth Circuit standard, and (3) new legislation is not applicable to those convicted of domestic crimes before the laws were enacted. The government also asserted that inconsistent application of the possession statute is a real issue, that failure to find error will impede enforcement of the possession statute, and that inconsistent interpretation of that statute will impose burdens on administration of the BHVPA.

The government also rejected Hayes’s assertion that the Court can uphold the Fourth Circuit because the district court admitted extrinsic evidence to prove Hayes’ 1994 conviction was a misdemeanor crime of domestic violence. The government maintained that the cases on which Hayes’s argument relied apply only to prove an element of an offense. Therefore, reliance on those cases depends on the Court’s interpretation of the statute: if a domestic relationship is not a required element, then the district court did not err by allowing testimonial evidence of the relationship between Hayes and his 1994 victim.

In its merits brief, the government first maintains that the plain language of Section 921(a)(33)(A) should be read as follows: A misdemeanor crime of domestic violence is an offense that first, is a misdemeanor with an element of the use/attempted use of physical force or threatened use of a deadly weapon, and second, is committed by a person who has a specified domestic relationship with the victim. To support this argument, the U.S. reasons that “element” indicates only one required element, while the term “offense” is qualified twice, first by Section 922(a)(33)(A)(i) and the first part of 922(a)(33)(A)(ii), and next by the “committed by” phrase in 922(a)(33)(A)(ii). In the government’s view, Congress’s failure to put the “committed by” language in its own clause carries little weight and simply does not justify ignoring the text’s unambiguous meaning.

Next, the U.S. argues that Section 922(g)(9) was enacted to address a nationwide problem and was intended to be applied uniformly across the country; affirming the Fourth Circuit’s decision, by contrast, will restrict the statute’s intended scope. Section 922(g)(9), according to the government, was a result of a loophole in Section 922(g)(1), which forbids possession of a firearm by a convicted felon, but not by misdemeanor domestic violence offenders. Accordingly, Congress enacted Section 922(g)(9) to prevent domestic violence misdemeanants from carrying firearms. Had Congress intended Section 922(g)(9) to apply only when there is a defined domestic relationship element, the government concludes, the statute would have been ineffective in most of the country when enacted, as nearly two-thirds of the states did not have misdemeanor laws with a domestic relationship element. In the government’s view, Congress would not have passed a law to address a nationwide problem if that law would not address the problem uniformly across the nation.

The U.S. also argues that the statutes’ legislative histories support its position. It explains that the initial version of the bill that later became Section 922(g)(9) prohibited any person indicted for or convicted of a “crime involving domestic violence” from possessing a firearm, but the phrase “crime of violence” in the original version of Section 921(a)(33)(A)(ii) was replaced with “an offense that … has, as an element, the use or attempted use of force, or threatened use of a deadly weapon.” Commenting on the final version of Section 921(a)(33)(A), the bill’s sponsor indicated that “the ban applies to all crimes that have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and noted that, “convictions for domestic violence-related crimes often are crimes … that are not explicitly identified as related to domestic violence.” Moreover, the government contends, Section 921(a)(33)(A) has consistently been read to apply to offenses that do not have a defined domestic relationship element, reflecting a clear congressional intent that the relevant sections will apply regardless whether the misdemeanor has a domestic relationship element.

The government dismisses Hayes’s assertion – made in the lower courts and at the cert. stage – that the prosecution violated evidentiary restrictions by using “extrinsic evidence” to prove a domestic relationship between Hayes and his victim, maintaining that the cases on which Hayes relies interpret a different statute and stand for the proposition that a court may not consider extrinsic evidence when determining whether a defendant deserves an enhanced sentence under that statute. Section 922(g)(9), by contrast, is a substantive criminal law statute rather than a sentencing provision like the ones at issue in those cases.

Finally, the U.S. dismisses the rule of lenity as inapplicable, explaining that the text, purpose, and history of Section 933(a)(33)(A) support its reading of the statute. Moreover, because Section 933(g)(9) is sufficiently unambiguous, reliance on that rule is inappropriate and unnecessary.

[edit] Amicus Briefs

Two linguistics professors and a professor of cognitive science filed an amicus brief on behalf of neither party. In the brief, they do not address the legal question, but conclude that the Fourth Circuit’s interpretation of the statute is reasonable and representative of the statute’s plain language meaning.

The professors first dismiss the government’s argument that “committed by” cannot modify “the use of force” phrase. Using the phrase “the use of force committed by [someone]” is, they explain, not “ungrammatical or abnormal” even if it “sounds a little strange.” They regard the government’s reliance on the singular “element” as proof that the only required element is the use of force as misplaced. Instead, they maintain, because an “element” of a crime can include more than one concept, the use of the word “element” in Section 921(a)(33)(A) may include the use of force committed by a person in a domestic relationship with the victim.

The professors decline to offer an opinion on how the ordinary reader would understand the language of Section 921(a)(33)(A), explaining that such a question is an empirical one that they are unable to answer without conducting an experiment. However, based on their own knowledge of how people understand and interpret language, they believe that paragraph breaks within the section and indentations of subparagraphs (i) and (ii) serve as punctuation to indicate to the reader the identification of two distinct concepts, which supports the Fourth Circuit’s reading. They also note that the concept of “recency preference” – by which readers tend to link ambiguous words or phrases with the most recently processed part of the sentence – is similar to the rule of the last antecedent, and they suggest that the Fourth Circuit’s linking of the “committed by” phrase to the “use of force” phrase is consistent with the recency preference. Analyzing the commas in Section 921(a)(33)(A), the professors opine that the comma which precedes the “committed by” phrase may have been placed there to set off the “…, or threatened use of a deadly weapon” phrase, rather than to separate the “use of force” and “committed by” phrases. Simply put, the professors found little linguistic support for the government’s position in this case.

[edit] Oral Argument Recap

[edit] Opinion Analysis

Brian Sagona originally posted the following on SCOTUSblog:

The Court has issued an opinion in United States v. Hayes (No. 07-608). The decision below, holding that a predicate offense under 18 USC 922(g)(9) must have as an element a domestic relationship between offender and victim, was reversed in a 7-2 opinion by Justice Ginsburg. Justice Thomas joined the majority only in part. The Chief Justice filed a dissenting opinion in which Justice Scalia joined.

Lyle Denniston originally posted the following on SCOTUSblog: The Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor. The law applies, the Court said in U.S. v. Hayes (07-608), whenever the battered victim was in fact the wife or other family relative of the offender. Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found. “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained in the 7-2 decision. Justice Ginsburg wrote for the majority. The Chief Justice and Justice Antonin Scalia dissented.

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