by Jossity L. Vasquez, J.D. Class of 2017 Touro Law Review Senior Staff Member

In 1996, Congress passed 18 U.S.C. § 922(g)(9) which prohibited any person convicted of domestic violence from possessing firearms, regardless of whether the conviction was a misdemeanor or a felony.[1] The statute defines the misdemeanor crime of domestic violence as, “a misdemeanor under Federal, State, or Tribal law; and has, as an element, the use or attempted use of physical force . . . .”[2] In Voisine v. United States[3] the Court addressed petitioners, Stephen Voisine and William Armstrong’s challenge to the breadth of the definition.[4] The petitioner’s argued that domestic violence misdemeanor convictions based on reckless conduct did not make them subject to the firearms ban.[5]

Specifically, the sticking point in the statutory interpretation is the function of the word “use” in relation to physical force.[6] The petitioners argue that the “use of physical force” could only apply to a knowing or intentional domestic assault.[7] However, the Court emphatically rejects this theory.[8] The Court reasons the common definition of the word “use” is the act of employing.[9] The word “use” does not require the actor to possess the goal of bringing about harm or degree of certainty that harm will occur.[10] Even those who commit an assault with conscious disregard of the potential harm are guilty of the act of using physical force.[11] The Court also rejects the petitioner’s theory that reckless assault was merely “accidental” because there is an element of awareness on the part of the actor that harm will likely occur, even if ignored.[12] This “awareness” of harm substantiates the accepted premise that even recklessly using force is an intentional act.[13] Therefore, the Court held on June 27, 2016, that convictions for reckless domestic assaults trigger the statutory firearms band.[14]

The more important issue is what this opinion means to Mrs. Monique Weston, a thirty-four-year-old mother of four, from Columbus, Ohio.[15] One month after the Court’s decision in Voisine, Mrs. Weston’s husband, with his children nearby, shot and killed her in their Columbus, Ohio home.[16] The assailant husband, Lenzell Weston, had ten charges and one conviction for domestic violence in 2016.[17] The last domestic violence charge was filed just twenty-four hours before the assailant ended his wife’s life.[18] Justice Kagan makes clear that Congress intended to take firearms out of the hands of those convicted of domestic violence regardless of their mens rea.[19] Any other interpretation of the federal statute would undermine Congressional intent to prevent domestic violence victims from becoming victims of murder.[20] Voisine, is an important step in demonstrating the government is serious about punishing domestic violence criminals and keeping victims safe.[21] However, Mrs. Weston’s case raises the issue of what good are broad firearms ban of those convicted of domestic violence if unenforced.

Congressional gun control statutes have not achieved the goal of removing firearms from those convicted of domestic assault, like Lenzell Weston, despite the facility of proving guilt for the statutory violation.[22] A prosecutor could easily bring a case for violation of the gun ban by admitting hearsay statements or testimony from the domestic violence victim.[23] The prosecutor would merely need to prove the defendant possessed a gun, the defendant has a domestic violence conviction and if in federal court, the gun moved across state lines.[24] Without action, issues of whether assailants committed knowingly, intentional or reckless assault, subjecting them to the firearms ban, are a nullity.[25] While the legislature continues to address domestic violence, prosecutors have a responsibility to diligently pursue domestic violence perpetrators and ensure those convicted do not escape the ban.[26] In this way, women like Mrs. Weston who valiantly report and cooperate with the state in the investigation and prosecution of domestic violence crimes may have a fighting chance at surviving the cycle of violence.[27]

[1] The Deadly Mix of Guns and Domestic Violence, The N.Y. Times (July 1, 2016),; see also 18 U.S.C. § 922 (g)(9) (1996).

[2] 18 U.S.C. § 921 (a)(33)(A) (1996).

[3] 136 S.Ct. 2272, 2276 (2016).

[4] Id. at 2279.

[5] Id. at 2277.

[6] Id. at 2278.

[7] Id. at 2277.

[8] Voisine, 136 S. Ct. at 2277.

[9] Id.

[10] Id.

[11] Id. at 2279.

[12] Id. (arguing that there is no “use” of physical force in merely accidental situations); see Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“In no ‘ordinary or natural’ sense can it be said that a person risks having to “use” physical force against another person in the course of operating a vehicle while intoxicated and causing injury.”).

[13] Voisine, 136 2279.

[14] Id. at 2276.

[15] Northeast Columbus Murder Victim’s Family Speaks Out after CPD Captures Accused Husband, NBC41 (July 26, 2016, 11:45PM),

[16] Columbus Murder Suspect has a Long History of Domestic Violence, NBC41, (July 22, 2016, 4:51 AM),

[17] Id.

[18] Id.

[19] Voisine, 136 S. Ct. at 2280; see The Deadly Mix of Guns and Domestic Violence, The N.Y. Times (July 1, 2016)

[20] The Deadly Mix of Guns and Domestic Violence, The N.Y. Times, (July 1, 2016)

[21] Id.

[22] Bethany A. Corbin, Goodbye Earl: Domestic Abusers and Guns in the Wake of United States v. Castleman-Can the Supreme Court Save Domestic Violence Victims?, 94 Neb L. Rev. 101, 142 (2015).

[23] Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 817-18 (2005).

[24] Id.

[25] Id.

[26] Corbin, Supra note 22 at 150.

[27] Id. at 158.


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