The Second Amendment and Convictions for Misdemeanor “Harassment” Offenses That Possibly Didn’t Involve Violence

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 — and 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 last week (Fisher v. Kealoha (D. Haw. June 29, 2012)), the harassment statute does not qualify. And, the court noted in an earlier decision (which I blogged about in April), 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” — documents that “the parties have not provided … to the Court.”

In the absence of a constitutional valid federal or state prohibition on gun possession, the court held, Fisher was “likely to succeed” on the claim that the denial of the permit violated his Second Amendment rights (as well as his Due Process Clause rights, given the state’s licensing scheme). And the court granted a preliminary injunction ordering defendants to issue Fisher a firearms license, based on (1) this likelihood of success, (2) the conclusion “that Plaintiff is being deprived of a liberty and property interest, and deprivation of that constitutional right requires a finding of irreparable injury,” and (3) the conclusion that “it is in the public interest to uphold Plaintiff’s Constitutional right to bear arms in self-defense within the home.”