Violence and Contact: Interpreting 'Physical Force' in the Lautenberg Amendment

23 Pages Posted: 21 Feb 2009

Date Written: February 20, 2009

Abstract

In 1996, Congress passed the Lautenberg Amendment to prevent domestic violence shooting deaths. The Lautenberg Amendment works the same way as the felon-in-possession law: any individual who has previously been convicted of a qualifying predicate crime is prohibited from possessing a gun. For the felon-in-possession law, any felony is a predicate offense. For the Lautenberg Amendment, misdemeanor crimes of domestic violence are predicate offenses; any crime that has, as an element, the use . . . of physical force qualifies as a misdemeanor crime of domestic violence.

A circuit split has recently developed over what conduct constitutes the use of physical force for the purposes of the Lautenberg Amendment. The First, Eighth, and Eleventh Circuits (the Contact courts) have interpreted physical force to include de minimis physical contact. The Ninth Circuit (the Violence court) has interpreted physical force to require violence, which can be understood as anything more forceful than de minimis contact. Stated differently, the Contact courts have held that making bare physical contact with another is a use of physical force against that person, whereas the Violence court has held that it is possible to make mere contact without using physical force. The meaning of physical force determines whether misdemeanor assault and battery crimes that have, as an element, causing physical contact qualify as Lautenberg predicates: under the Contact courts' view, such crimes do qualify; under the Violence court's view, they do not.

This Comment seeks to resolve the split. Part I explains the statutory scheme in greater detail and provides additional context by describing 18 USC 16, a similar provision that was likely the model for the Lautenberg Amendment. Part II surveys both sides' arguments. Part III argues that physical force should be interpreted to require violence and exclude de minimis contact. It presents several arguments that have not been considered by either side of the split and analyzes flaws in the Contact courts' arguments. Admittedly, interpreting physical force to require violence undermines the Lautenberg Amendment's policy rationale by disqualifying key predicate crimes and may lead to arbitrary application of the Amendment's prohibition on gun possession. Nevertheless, these consequences do not outweigh the strong arguments in favor of this interpretation, particularly because the Amendment's formalistic scheme already causes these effects.

Keywords: physical force lautenberg amendment categorical approach violence contact domestic violence

Suggested Citation

Skakun, John M, Violence and Contact: Interpreting 'Physical Force' in the Lautenberg Amendment (February 20, 2009). University of Chicago Law Review, Vol. 75, No. 1833, 2008. Available at SSRN: https://ssrn.com/abstract=1347226

John M Skakun (Contact Author)

University of Chicago ( email )

1101 East 58th Street
Chicago, IL 60637
United States

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