Pleading a DV to a Simple Battery May Not Preserve Client's Gun Rights

In an opinion written by Justice Ginsburg, the U.S. Supreme Court held this morning that a person may be prosecuted under 18 USC 922(g)(9), which bans possession of a weapon for someone convicted of a misdemeanor crime of domestic violence, even if the predicate offense does not have a domestic relationship as an element of the offense. "We hold that the domestic relations, although it must be established beyond a reasonable doubt in a section 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense."

United States v. Hayes. http://www.scotusblog.com/wp/wp-content/uploads/2009/02/07-6081.pdf

Hayes had a conviction in West Virginia for battery. However, the indictment alleged that the victim "shared a child in common with" and "was cohabitating with" Hayes. After he was charged in federal court, he moved to dismiss the indictment. Then, when that motion was denied, he entered a conditional plea of guilty.

The Court holds that a "misdemeanor crime of domestic violence . . . must have, as an element, the use or attempted use of physical force or the threatened use of deadly weapon." The statute, however, does not require that the crime have a domestic relationship as an element.

"To obtain a conviction in a section 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way, But that relationship, while it must be established, need not be denominated an element of the predicate offense."

So, it appears a plea to Disturbing the Peace, for example, may be OK so long as there is no element of physical force or use of a deadly weapon. A plea to Simple Battery is not OK and does not preserve your client's right to possess firearms if the Government can prove the domestic relationship at the 922(g)(9) trial.