Richard Wolf

USA TODAY

Varying state definitions make federal law less effective

Justices struggle with how to define violence

Decision could help or hinder gun prosecutions

WASHINGTON -- The Supreme Court struggled Wednesday with how to keep guns away from domestic violence offenders without penalizing those who are not truly violent.

While the key to the debate was guns, the justices spent most of their time trying to define violence and differentiating it from actions that merely cause injury, whether intentional or not.

The differences are important, because a federal law aimed at denying guns to those with misdemeanor convictions of domestic violence relies on definitions within state laws. In 28 states and the District of Columbia, for instance, assault and battery statutes include provisions for mere touching.

That got the justices to wondering what type of domestic violence could lead to a federal conviction for possessing a gun.

"If I punch somebody in the nose, is that violence?" Justice Antonin Scalia asked.

"How about pinching or biting, hair-pulling, shoving, grabbing, hitting, slapping?" asked Justice Sonia Sotomayor.

"If the victim is at the top of the stairwell and you go, 'Boo!' and he or she falls down and is injured, is that physical force?" Chief Justice John Roberts chimed in.

And Justice Anthony Kennedy raised the specter of a photographer who says, "'Back up two steps,' so that the other person falls over the cliff. That's physical force?"

Faced with the barrage of hypothetical questions, assistant solicitor general Melissa Arbus Sherry said the law passed by Congress was intended to go after wife-beaters, not "someone tickling their wife with a feather."

That's the problem, Justice Elena Kagan said, because state laws in 14 of the 28 states don't differentiate between physical force and mere touching.

"Are you going to have a terrible difficulty prosecuting real, you know, punch-in-the-nose kinds of incidents of physical violence, because there are indivisible statutes that apply to both?" she asked.

The case stems from Tennessee, where James Alvin Castleman pleaded guilty to one count of misdemeanor domestic assault in 2001. Seven years later, he was found in possession of guns and prosecuted under the federal law. But two lower courts threw out his indictment because the state law also includes threats of violence as well as offensive or provocative contact.

By agreeing to hear the case, at least four justices signaled potential objections to those verdicts and a sensitivity to victims of domestic violence. Still, a decision overturning the district and appeals courts may require changes in state laws, so that lesser offenders aren't covered.

On the other hand, a decision in Castleman's favor could mean that truly violence offenders skirt the federal gun law because of the imprecision of state laws.

"I can't work this out," said Justice Stephen Breyer. "On the one hand, you're not really picking up serious domestic violence ... or on the other hand, you pick up the offensive touching, too."