Violence

Supreme Court Tackles Definition of Domestic Violence

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Ben Pollard/Wikimedia

The Supreme Court weighed in Wednesday on a federal law prohibiting those convicted of domestic violence from owning guns. Though the court refused to consider a challenge on Second Amendment grounds, it did take on clarifying the definition of "domestic violence," with a majority of the justices agreeing that it can include "seemingly minor acts" that may not be characterized as "violent" in a nondomestic context. Justice Antonin Scalia objected, accusing his fellow justices of distorting the law and "impoverish[ing] the language."

The case, United States v. Castleman, involved Tennessee resident James A. Castleman, who was convicted of assaulting the mother of his child in 2001. Afterward, Castleman argued that the federal gun prohibition didn't apply to him because it defines a misdemeanor crime of domestic violence as one involving "physical force" and his conviction had merely been for "intentionally or knowing causing bodily injury." Yep. 

A federal trial judge and the U.S. Court of Appeals for the Sixth Circuit agreed with him, but the U.S. Supreme Court unanimously reversed those decisions.

Writing for six justices, Justice Sonia Sotomayor noted that the Department of Justice's Office on Violence Against Women defines domestic violence to include "hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling" and that acts of this nature are "easy to describe as 'domestic violence' when the accumulation of such acts over time can subject one intimate partner" to the other partner's control.

"If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a misdemeanor crime of 'domestic violence.'" 

In a concurrence, Justice Scalia agreed that Castleman's crime amounted to domestic violence. But he objected to his benchmates' definition of domestic violence, calling it unfortunate that they'd interpret "any offensive touching, no matter how slight, as sufficient" to count as domestic violence.

"That absurdity is not only at war with the English language, it is flatly inconsistent" with legal defintions of domestic violence, Scalia wrote. He went on to say that the DOJ is entitled to adopt anty definition of domestic violence it wants, but

when they (and the Court) imporse their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.

Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, issued a separate concurrence.

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  1. Does Justice have an Office on Violence Against Men?

    Also, that guy is calling time-out wrong.

    1. It’s a technical foul.

      1. FOOLS!

        Its a shaolin temple, *in disguise*

        Wu-Tang, motherfucker.

        http://www.swyi.com/philosophy.htm

        “The Shaolin bow is performed by joining the right fist with the left open hand. The closed fist represents the sun while the left open hand signifies the moon. The sun and the moon are the two great sources of light and when placed together they signify “Ming” which means bright in Chinese. The Ming dynasty (1368-1644) was an amazing era in Chinese history which saw an explosion in culture and art including Shaolin Kung Fu. When the Chinese BowMing dynasty was overthrown by the Manchurians in 1644 the Shaolin Monks began to aid the Ming soldiers and rebels who were fighting to restore the Ming Emperor. During this time the hand signal for Ming was adopted as the Shaolin bow and all those who displayed this hand signal were holding themselves forth as agents of justice. This hand form has been continually used for hundreds of years and serves as a reminder that all who train in Shaolin Kung Fu must try to follow the path of wisdom, truth and righteousness in order to spread kindness and wellbeing to all they encounter. “

          1. “DIVERSIFY YO ASSETS BUT DONTCHU BUY INTO A “FUND OF FUNDS” UNLESS U FINNA GET SLAPPED IN THE FACE FOR PAYING MULTIPLE MANAGEMENT FEES GTFO”

            Ummm, Vanguard?


            1. Wu-Tang Financial ?@Wu_Tang_Finance 4m
              How many Austrian economists does it take to screw in a lightbulb?

              NONE, BITCH CAN SCREW ITSELF IN. IT WOULDA BEEN FINE WITHOUT THE FED TOO

          2. That strikes me as a semi-decent Chappelle show sketch, gone full retard

            https://www.youtube.com/watch?v=VsEpjTcWkyw

            I’m not sure most people who even find that shit funny understand the joke being based on the whole C.R.E.A.M. line

            1. Wu Tang Finance is a straight up libertarian G!

              1. Now you’re confusing the issue by inappropriately throwing West Coast rap slang into the mix.

                shameful.

    2. They should use the one for cross-checking.

      http://www.youtube.com/watch?v=1xXYAFSE0i0

      1. I apologize!

        I take it all back…

        It’s actually the signal for boarding.

        http://www.youtube.com/watch?v=h0TEq2XKjNE

        I mean, for reals. It’s really the signal for boarding.

        1. KUNG-FU BOARDING

      2. Well, if you’re going to go with hockey then it’s a boarding call.

  2. So judging by that sign, their plan for combating domestic violence is to encourage people to settle their differences the old-fashioned way: rock-paper-scissors.

  3. So, this prohibition against enjoying your Second Amendment rights, presumably, stays in effect even after you’re no longer cohabitating with the victim of domestic violence?

    Are there any other crimes like that, or is domestic violence the only one?

    If I’m convicted of assault and battery after a barroom brawl, can I be denied my Second Amendment rights–in perpetuity?

    1. If I’m convicted of assault and battery after a barroom brawl, can I be denied my Second Amendment rights–in perpetuity?

      Quite the opposite. You can put that down on your resume to the police department, and get CCW for life!

    2. If I’m convicted of assault and battery after a barroom brawl, can I be denied my Second Amendment rights–in perpetuity?

      Depends on the actual charge, it’s potential sentence, and the state you’re in.

      A lot of states base what misdemeanors are prohibiting based on the potential sentence. Here in PA, for instance, misdemeanors of the first degree are punishable by up to 5 years and regardless of your sentence are prohibitory. Federal law states that any conviction that can carry a sentence of a year or more are prohibitory.

      A single bar brawl probably wouldn’t be prohibitory if it was a single event and you weren’t prosecuted to the fullest.

  4. “hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling” and that acts of this nature

    so a normal Saturday night for me (as the victim)

    1. Some people like that kind of thing!

      1. Funny, Ken, you have always struck me as just the type of guy who would “like that sort of thing!”

        1. I’m flattered that you think about me like that, Libertymike, but I really don’t swing that way. …not that there’s anything wrong with that.

          If you keep looking, I’m sure you’ll find somebody.

          1. You’re right, there is not anything wrong with that.

            Thank you for assuring me that there is somebody out there willing to make me her bitch.

    2. …slapping, shoving, grabbing, pinching, biting, and hair pulling…

      We call that “sexy time” around my house.

      1. *In Borat voice*

        Nice! High Five!

        1. EDG

          Isn’t your whole marriage some sort of hate crime?

          1. Yes. I totally objectify a black woman. Daily.

            1. It’s alright I guess as long as you don’t engage in any bondage games with you in the dominant role.

    3. You’re not a victim when you’re paying extra for it.

  5. does a DV conviction mean the 16th amendment doesn’t apply?

    1. Plus Title 26!

  6. Michigan’s definition of domestic violence is part of the all purpose Michigan “assault and battery” statute, and yes, it includes pretty much “offensive touching, within a domestic relationship.” (I’m paraphrasing here). Domestic relationship can include roommates without a dating relationship. In other words, it’s extremely broad. I know a fellow attorney who was defending a college student who got into a fight with his roommate (also male) for a DV charge. Eventually it was negotiated to simple assault.

  7. One of the problems that I have is that your 2nd amendment rights can be denied even if you’re currently being investigated for DV, no conviction necessary.

    1. Yep. In CA, you have 24 hours to turn over all of your weapons.

      1. Bullets first?

        I kill me.

        1. I think that in that case, they kill you.

        2. Here in Mass, I once represented a firefighter who happened to be arrested on a bogus DV charge while his LTC renewal was pending.

          The local police chief, upon hearing of the arrest, immediately revoked the firefighter’s LTC and several days later denied the renewal. My guy had to surrender his guns.

          Meanwhile, the wife sought and obtained an ex-parte restraining order. The orders are good for 10 days when the party restrained has the opportunity to be heard on the issue of whether the restraining order shall continue.

          At the hearing, the wife alleged that my client had sexually assaulted her 12 year old daughter. Guess what? The allegation was false.

          A cop was dispatched later that day to speak with the wife and the daughter. The daughter denied the allegation and told the cop that her mother not only lied about the sexual assault but also the alleged DV. The mother began to cry and eventually admitted that she had fabricated all of the accusations.

          Do you think any of that mattered to the police chief?

          1. The judge did not continue the restraining order.

            The police chief only relented after I had filed a lawsuit in behalf of the firefighter. Town counsel actually sympathized with my client and prevailed upon the police chief to issue the renewal.

            Although it ended well for my client, I doubt that it would have for the average private sector guy.

            1. Did he work in that town?

            2. And no false report charge for the ex, I presume.

              1. Actually I’m surprised. Usually someone goes to jail on a DV call.

            3. Did they revoke the police chief’s license to carry?

              [/sarcasm]

              1. oh Ted you’re such a card.

      2. A friend of mine had to do that in CT. And he still hasn’t figured out how to get his gun back in two years (it is a revolver and he doesn’t have a carry permit). Never convicted of anything.

        1. In the cases of this sort of thing happening in PA, the person will usually get their firearms back after retaining counsel that costs way more than the weapon. He could fight it, but it depends if his principles are worth more than his money.

          One fucked up thing the cops do here in PA is to check a legally carried firearm against the “registry” during traffic stops. If it ain’t in there your gun is confiscated. Never mind that PA has a specific law that OUTLAWS the existence of a registry. What they are actually doing is comparing your serial number against a list of transferred weapons. If your gun was given to you by a relative or was bought before the data was collected, you’re fucked.

  8. So they Justices are all cool with stripping you of your Bill of Rights on the basis of a misdemeanor conviction?

    Sounds to me like they need to back the truck up a little bit, and ponder whether the loss of a fundamental right (per the Bill of Rights) for a misdemeanor is really the road to go down, here.

    If you can lose your 2A rights for a misdemeanor, why not any other BOR right? Or your right to vote, etc.?

    1. Doesn’t a misdemeanor drug charge bar you from owning guns for life?

      1. This case is a good illustration of what I was writing about yesterday: there can be no rule of law where the state, and the state alone, gets to change the rules, particularly the founding rules, without the consent of each and every person to be affected thereby.

        1. This case is a good illustration of what I was writing about yesterday: there will always be a group of men who use organized violence to plunder, and because they have the last word in violence they can arbitrarily change the rules.

          1. In this case they don’t have the right to arbitrarily change the rules. They just do it anyway. And have from the outset. Nice job, founding fathers!

            I’ve never been able to figure out what was going through the heads of the first Supreme Court justices as they allowed for violations of the black letter law of the constitution because…. well, I suppose because it would be inconvenient to go get a constitutional amendment just to outlaw obscene speech, or whatever other mundane power the government wished to have that was outside the scope of the enumerated powers.

      2. Hmm, not sure. The question on the ATF-4473 is:

        “are you an unlawful user of, or addicted to, marijuana [etc. etc.]”

        That’s what got the people who used medical marijuana burned. But the form doesn’t ask about being convicted of misdemeanor possession. Like if you’re were convicted, paid your fine– whatever, then saw the error of your marijuana-using ways and were no LONGER an unlawful user… are you barred firearms ownership?

        1. I read that as “”are you an unlawful user of, or addicted to, marijuana right this very second?”

        2. I’m wondering if a prior conviction would cause the background check to come back negative.

          1. Felony, absolutely, but since you asked about misdemeanor… *shrug*

            1. I don’t think so. I’m pretty sure that some people I know who have misdemeanor drug convictions have bought guns from licensed dealers.

          2. Only if the potential sentence was ‘greater than’ one year. Up to one year doesn’t count.

      3. I think it depends on the state. Here in MT You need a felony:

        45-8-313. Unlawful possession of firearm by convicted person. (1) A person commits the offense of unlawful possession of a firearm by a convicted person if the person purposely or knowingly purchases or possesses a firearm after the person has been convicted of:
        (a) a felony for which the person received an additional sentence under 46-18-221; or
        (b) an offense under the law of another state or of the United States that is equivalent to an offense that when committed in Montana is subject to an additional sentence under 46-18-221.
        (2) A person convicted of unlawful possession of a firearm by a convicted person shall be imprisoned in a state prison for not less than 2 years or more than 10 years.
        (3) A person who has been issued a permit under 45-8-314 may not be convicted of a violation of this section.

        And even then you can be granted permission under 3 above.

    2. think of the potential savings on military housing.

  9. Seems to be an alt-text free zone as well.

  10. So am I right in assuming the standard for DV is different than assault against someone that I am not in a relationship with? And that these standards apply to same sex couples as well.

    1. Yes, has been for a long while. Crack your old lady across the mouth over her cooking– you’re in deep shit.

      Walk up to a complete stranger and crack him or her across the mouth because you don’t like the way they look, you’ll be ok.

      1. thx. I’ll stay single and keep my assaulting strangers to a minimum.

      2. Walk up to a complete stranger and crack him or her across the mouth because you don’t like the way they look, you’ll be ok.

        I believe this is referred to as the “knockout game”. And yes, you can be prosectued for it.

        1. But they won’t use it as a pretext to take away your guns.

        2. A misdemeanor conviction won’t bitch up your 2a rights though.

      3. If you hit them because you didn’t like the way they look, that’s probably a hate crime. How about hitting them because it’s Thursday? That would probably be simply assault.

    2. Part of me is inclined to think that DV is some sort of relic designed to accomodate those who think that wife-beating is morally permissible.

      Recall that at one time, violence that happened inside the home was considered none of the law’s business. We gradually evolved to the point that we decided that ok, people shouldn’t beat their wife or kids so badly they ended up in the hospital – but a little slapping around was ok, and the cops shouldn’t be getting involved in these internal family disputes. And thus “domestic” violence became a distinct crime from straight-out assault.

      1. Shouldn’t it be held to the same felony vs. misdemeanor standard, though?

        I have zero problem taking away a vicious wifebeater’s guns. But when a husband and a wife get into a shoving match and a neighbor calls 911– I’m not sure that should qualify denial of your rights.

        1. Exactly, that’s my point.

          If they don’t take away your gun rights for getting into a shoving match with a stranger, they shouldn’t take them away for getting into a shoving match with your wife, and vice versa.

          The problem is we invented this category that originally existed because people thought that “domestic” violence was LESS serious of a crime. And now because we have two categories we have civil penalties that are MORE stringent for domestic violence then a similar situation with a total stranger. They should be the same.

    3. Depends on what you mean by “in a relationship”. The laws generally apply to any domestic relationship including roommates with no romantic or familial connection.

  11. Domestic Violence. I have a problem with that.

    Violence is violence no matter the location or relationship.

    1. I was about to say the same thing.

      There should be no legal distinction between assaulting a family member in your house and assaulting a stranger on the street.

      If you went up to a stranger and slapped, pinched, or bit them – heck if you even touch someone without their permission, that can be actionable.

      We really shouldn’t need a separate categoy for “domestic” violence. Is the law saying there are things you can’t do to your spouse that you can do to a stranger? Or is it saying there are things you can do to your spouse that you can’t do to a stranger?

      1. If you went up to a stranger and slapped, pinched, or bit them – heck if you even touch someone without their permission, that can be actionable.

        If there was only a place where women did this…*sigh*

      2. Is the law saying there are things you can’t do to your spouse that you can do to a stranger?

        I think it’s safe to say there are always things you can do to a stranger that you can’t do to a spouse.

        *rimshot*

        tip your waitress!

      3. Yeah, it’s in the same general category as hate crime laws. It’s worse to sucker-punch some types of people than others.

  12. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence

    OH C’MON, Scalia! Is it so hard to come up with “domestic assault” and call it DA. Then add another paragraph to your dissent expounding on DV and DA and then conclude your pontificating with a flurry of DVDA??!!

    😐

  13. My limited understanding of domestic violence law comes from watching the Cops TV show during the ’90s. (I had stopped beating my wife in the ’80s !) When responding to a domestic violence complaint the cops always had to take a prisoner. The cops would examine the two people looking for any bruise or laceration, no matter how small, and take the other person to jail even if both people had calmed down and decided the 911 call was a mistake. A complaint by one party against the other was not required, the presumption being that the one who made the call had been intimidated into not pressing charges by the other while police the were on their way. “There’s no excuse for domestic abuse.”

    1. When responding to a domestic violence complaint the cops always had to take a prisoner.

      May depend on the state. In Washington, the state prosecutes automatically, even if one side (*cough*the woman*cough*) refuses to press charges, calms down and says everything is fine.

    2. Piece County, Washington is a favorite venue for Cops.

  14. Thats the dumb thing I have heard all day man.

    http://www.EliteVPN.tk

    1. sounds like you’ve been walloped a few too many times

  15. I kind of understand why they don’t want to approve “seemingly minor acts” as domestic violence since whenever a couple is having problems, they are going to blow things out of proportions which could end up in innocent being imprisoned. But still, what if turning a blind eye on “seemingly minor acts” may end up in the escalation of abuse and possible death. Probably, to prevent death such measures should be taken, we just should think of how to make sure domestic violence did occur. Anyways, taking into account one out of four women is a victim of domestic violence (ref. domestic violence essay) but only 56% report it to police (ref. 2014 percentage of reported violent crimes) I’m quite not sure where changing the definition of domestic violence would help much.

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