The Second Amendment & Convictions for Misdemeanor “Harassment” That Don’t Involve Violence

by Eugene Volokh, The Volokh Conspiracy

In the recent ruling in Fisher v. Kealoha (D. Haw. Apr. 19, 2011), the district court let plaintiff proceed with his Second Amendment claim, in a way that suggests plaintiff might well win.

In December 1997, Kirk Fisher pled guilty to two counts of misdemeanor “harassment” of his wife (who is apparently still his wife), and was placed on probation for six months.

As part of his probation, he had to surrender his guns, but after the probation was over, the court ordered that the guns be returned, so long as that was consistent with Hawaii law and federal law; and the police department did indeed return them.

But in Fall 2009, Fisher asked for a license to buy another gun — Hawaii requires such a license — but the police department said no, and indeed ordered him to dispose of his current guns. Fisher, the police department reasoned, was forbidden from possessing a gun by Haw. Rev. Stat. § 134-7 and 18 U.S.C. § 922(g)(9). Hawaii law forbids gun possession by anyone who has been convicted of “any crime of violence,” including misdemeanors (Hawaii law). Federal law forbids gun possession by anyone who has been convicted of any misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against a spouse, cohabitant, or child.

Now here’s the twist: The Hawaii harassment statute, which Fisher had violated, covers any situation where a person “with intent to harass, annoy, or alarm any other person … [s]trikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.” This, the court held, includes not just violent touching but “any slight touching of another person in a manner which is known to be offensive to that person.” So many harassment convictions might be based on “violence” or “physical force,” but some might be based based on just an offensive touching that would be short of physical force, such as spitting or jabbing with a finger during an argument (to use a hypothetical from a Ninth Circuit case dealing with a similar statute).

To decide where such state statutes into a federal scheme, federal courts generally use the “modified categorical approach“: They consider whether the statutory text “has, as an element, the use or attempted use of physical force” (that’s the “categorical” part) coupled with looking at the charging documents or plea agreements that make clear what actually happened (that’s the “modified” part). It’s not enough that the statute usually covers violent conduct, or that there’s now evidence that the conviction was based on violent conduct; the court is limited to the text of the statute and the particular documents setting forth the earlier charges or the defendant’s past admissions pursuant to a plea deal.

Here, the court held, the harassment statute does not qualify. And, the court noted, the “modified” part of the “modified categorical” approach would only kick in if the government could point to “the written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented, which might shed some light on the nature of the underlying conduct for which Plaintiff was convicted.” And, at this stage of the proceedings, “the parties have not provided such documents to the Court,” “and it is questionable whether they are still available.” Fisher’s demand for an injunction ordering the return of his guns can go forward. And, based on the court’s reasoning, Fisher would presumably win unless the government can find some of those documents.

So this is a limited decision, but still a noteworthy one: The court seems to be saying that denying a person a gun based on a general “harassment” misdemeanor conviction, without a showing that the conviction involved violence, violates the Second Amendment (at least given the current Hawaii and federal statutory scheme, which is limited to crimes of violence). Note, though, that, as the court points out, several circuits — unlike the Ninth Circuit and several others — take the view that § 922(g)(9) applies to any conviction for an illegal offensive touching of a spouse, cohabitant, or child, and not just to convictions for violent touching, see note 26 of the opinion; it’s not clear what result the court would have reached had the statute indeed been read as broadly in the Ninth Circuit.

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About: Eugene Volokh is a law professor at UCLA, who specializes in free speech, religious freedom, church-state relations, and gun rights; he is the author of two textbooks, over 70 academic articles, and over 80 op-eds, and is the founder of The Volokh Conspiracy blog.