I. Introduction
On March 4, 2014, the West Virginia Legislature passed House Bill 4445. 1 This Bill “modif[ied] the definition of ‘battery’ and ‘domestic battery’ to conform with federal laws.” 2 More specifically, House Bill 4445 was passed pursuant to the Fourth Circuit’s decision in United States v. White. 3 The enactment of House Bill 4445 erased the offense of simple battery from the books of West Virginia’s Code and transformed battery and domestic battery into offenses that inherently encompass violent force.
II. United States v. White
The Fourth Circuit’s decision in United States v. White was the driving force behind the reform of West Virginia’s battery and domestic battery statutes. 4 The issue presented to the court was whether Appellant White’s prior conviction for violating Virginia Code § 18.2-57.2, “assault and battery against a family or household member,” 5 was considered a misdemeanor crime of domestic violence in accordance with § 921(a)(33)(A) 6 under the United States Code. 7
White was convicted in 2004 for “assault and battery against a family or household member” and subsequently violated 18 U.S.C. § 922(g)(9) by being a prohibited person in possession of a firearm. 8 White challenged his indictment under § 922(g)(9), claiming that because “Virginia uses the common law definition of battery, the elements of [his 2004 conviction] could not meet the statutory definition of ‘misdemeanor crime of domestic violence,’” 9 as a misdemeanor crime of violence requires “as an element, the use or attempted use of physical force.” 10
In determining whether or not White’s 2004 conviction was considered a misdemeanor crime of domestic violence, the court had to decide “whether the ‘use . . . of physical force,’” under § 921(a)(33)(A)(ii) was an element under Virginia’s common law assault and battery statute. 11 The Court’s determination hinged on the interpretation of the phrase “physical force.” 12
The examination of Virginia’s common law assault and battery offenses revealed a “de minimis” depiction: a battery may arise from “the slightest touch and no physical injury is required.” 13 The court questioned whether “physical force,” as referenced under 18 U.S.C. § 921(a)(33)(A)(ii), included force that failed to result in physical injury. 14 In answering this question, the Fourth Circuit examined the circuit split among its sister courts. 15 The First, Eighth, and Eleventh Circuits interpreted “physical force” to include even the slightest touch. 16 In contrast, the Seventh, Ninth, and Tenth Circuits interpreted “physical force” to include only that which is “violent in nature . . . .” 17 Due to this split, the Fourth Circuit directed its attention to the Supreme Court’s decision in Johnson v. United States . 18
A. The Fourth Circuit's Interpretation of Johnson v. United States : The Definition of "Physical Force"
In Johnson, the issue presented to the Supreme Court was whether “[a]ctually and intentionally touch[ing] another person” under Florida’s battery statute 19 “constitue[d] the use of ‘physical force’ within the meaning of § 924(e)(2)(B)(i).” 20 The Court viewed “actually and intentionally touching” under the statute to be “any intentional physical contact, ‘no matter how slight.’” 21 The Court rejected that a battery failing to result in injury constituted “physical force.” 22 The Supreme Court concluded that, under § 924(e)(2)(B)(i), “the phrase ‘physical force’ mean[t] violent force . . . .” 23
Although the Supreme Court’s decision in Johnson defined “physical force” only in regard to the phrase’s presence under § 924(e)(2)(B), the Fourth Circuit in White opined that the “Court’s reasoning in Johnson . . . as to the meaning of ‘physical force’ . . . is compelling if not overwhelming” for the purpose of construing § 922(g)(9). 24 The Fourth Circuit employed the Supreme Court’s analysis in defining “physical force” to interpret the same phrase as it is found under § 921(a)(33)(A)(ii)—the statutory section defining the offense of “misdemeanor crime of domestic violence.” 25 The Fourth Circuit opined,
We see little, if any, distinction between the “physical force” element in . . . a “ violent felony” under § 924(e) in Johnson and a “misdemeanor crime of domestic violence” in 922(g)(9) in the case at bar. . . . [T]hese statutes describe an act of “violence” and require the identical element of that violent act to include “physical force.” . . . [A] “violent felony” requires “violent force.” We see no principled basis upon which to say a “crime of domestic violence” would include nonviolent force such as offensive touching in a common law battery. 26
The court held that “physical force” meant “violent force;” and, so, a misdemeanor crime of domestic violence required the use of violent force—“force capable of causing physical pain or injury to another person.” 27
By adopting this definition of “physical force,” it followed that White’s 2004 conviction in Virginia for “assault and battery against a family or household member” was not, categorically, a “misdemeanor crime of domestic violence” for the purpose of firearm possession restriction under § 922(g)(9). 28 The court could not, however, determine if White’s prior conviction was a result of the use of “physical force” or merely “offensive touching” because “[g]eneral district courts in Virginia are courts not of record . . . .” 29 Therefore, the underlying facts leading to White’s conviction for “assault and battery against a family or household member” were indeterminable. 30 Because White’s conviction was “devoid of any qualifying documentation” showing a use of “physical force,” the conviction could not be classified as a “misdemeanor crime of domestic violence,” and, therefore, White’s conviction under 18 U.S.C. § 922(g)(9), for being a prohibited person in possession of a firearm, was reversed. 31
III. Before House Bill 4445
Prior to the passing of House Bill 4445, the West Virginia battery statute read as follows:
(c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor . . . . 32
The closely-related offense of domestic battery utilized the same language: 33
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor . . . . 34
Pre-March 4, 2014, both the battery and domestic battery statutes in West Virginia encompassed two separate offenses with which an individual could be charged: simple battery and a more serious “violent battery.” 35 Under both § 61-2-9(c) and § 61-2-28(a), simple battery 36 could be committed by “mak[ing] physical contact of an insulting or provoking nature” with another individual. 37 A more egregious, violent battery could be committed by “unlawfully and intentionally caus[ing] physical harm to another person . . . .” 38
Under the old versions of § 61-2-9(c) and § 61-2-28(a), it seems as though a battery could be committed by “the slightest touching of another . . . if done in a rude, insolent, or angry manner.” 39 This broad characterization of battery mirrored Virginia’s common law conception of the offense. 40 This “de minimis” view of battery is precisely what the West Virginia Legislature steered away from when it passed House Bill 4445. 41
IV. After House Bill 4445
Today, the West Virginia battery statute reads as follows:
(c) Battery. -- Any person who unlawfully and intentionally makes physical contact with force capable of causing physical pain or injury to the person of another or unlawfully and intentionally causes physical pain or injury to another person, he or she is guilty of a misdemeanor . . . . 42
The domestic battery statute was identically altered:
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact force capable of causing physical pain or injury to his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor . . . . 43
In both the battery and domestic battery statutes, the West Virginia Legislature removed the phrase “of an insulting or provoking nature,” and replaced it with “force capable of causing physical pain or injury.” 44 As of June 12, 2014, 45 physical contact of “a rude, insolent, or angry manner,” that fails to result in bodily injury, is no longer considered a battery. This alteration has the effect of abolishing the offense of simple battery 46 in West Virginia.
V. Implications
Abolishing the offenses of simple battery and simple domestic battery in West Virginia affects both the criminal justice system as a whole and individual offenders within the system. First, and most intuitively, House Bill 4445 erased a criminal offense with which an individual could be charged. However, House Bill 4445 generated a second, less apparent consequence for offenders convicted under § 61-2-28(a). Per the newly amended § 61-2-28(a), any person found to have committed domestic battery has categorically committed a “crime of violence” for the purpose of firearm restriction and for the purpose of federal sentencing enhancements.
A. Any Person Convicted under the Newly-Amended § 61-2-28(a) Is Prohibited from Possessing a Firearm.
Any person convicted under West Virginia Code § 61-2-28(a) is also guilty of a “misdemeanor crime of domestic violence” and subject to the restraints of 18 U.S.C. § 922(g)(9). A West Virginia court will no longer go through an analysis, as the Fourth Circuit did in United States v. White, to determine whether or not an individual who has committed the offense of domestic battery has also committed a “misdemeanor crime of domestic violence,” 47 subject to restriction of firearm possession. Due to the change in statutory language, any person convicted of domestic battery under § 61-2-28(a) has ipso facto engaged in conducted involving “the use . . . of physical force,” 48 and, therefore, is restricted from possessing, shipping, or transporting any firearm or ammunition. 49 Furthermore, if an individual does in fact possess a firearm after being convicted of domestic battery in West Virginia, such individual will be prosecuted under federal—not state—law. 50
B. Any Person Convicted under the Newly-Amended § 61-2-28(a) Is Subject to Possible Sentencing Enhancements under 18 U.S.C. § 924(e)(1).
If a person convicted under West Virginia Code § 61-2-28(a) later possesses a firearm and also has three previous convictions for violent felonies or serious drug offenses, such person will receive a mandatory minimum of fifteen years in prison. 51 For example, if an individual with three previous convictions for possession with intent to distribute marijuana and a domestic battery conviction later possesses a firearm, such individual will be federally prosecuted and receive a mandatory minimum sentence of fifteen years. 52
VI. Conclusion
The passing of House Bill 4445 erased simple battery as a punishable offense in West Virginia. Furthermore, Bill 4445 has federal implications, exposing defendants to firearm restrictions and potential mandatory minimum sentences for those with past criminal histories. Amending § 61-2-28(a) and § 61-2-9(c) allows courts to more easily and efficiently classify underlying battery and domestic battery offenses, as all such offenses following the effective date of June 12, 2014, are inherently violent and encompass physical force.
