United States v. Castleman

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. CASTLEMAN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 12–1371. Argued January 15, 2014—Decided March 26, 2014

Respondent Castleman moved to dismiss his indictment under 18

U. S. C. §922(g)(9), which forbids the possession of firearms by any-

one convicted of a “misdemeanor crime of domestic violence.” He ar-

gued that his previous conviction for “intentionally or knowingly

caus[ing] bodily injury to” the mother of his child, App. 27, did not

qualify as a “misdemeanor crime of domestic violence” because it did

not involve “the use or attempted use of physical force,” 18 U. S. C.

§921(a)(33)(A)(ii). The District Court agreed, reasoning that “physi-

cal force” must entail violent contact and that one can cause bodily

injury without violent contact, e.g., by poisoning. The Sixth Circuit

affirmed on a different rationale. It held that the degree of physical

force required for a conviction to constitute a “misdemeanor crime of

domestic violence” is the same as that required for a “violent felony”

under the Armed Career Criminal Act (ACCA), §924(e)(2)(B)(i)—

namely, violent force—and that Castleman could have been convicted

for causing slight injury by nonviolent conduct.

Held: Castleman’s conviction qualifies as a “misdemeanor crime of do-

mestic violence.” Pp. 4–16.

(a) Section 922(g)(9)’s “physical force” requirement is satisfied by

the degree of force that supports a common-law battery conviction—

namely, offensive touching. Congress presumably intends to incorpo-

rate the common-law meaning of terms that it uses, and nothing sug-

gests Congress intended otherwise here. The Sixth Circuit relied up-

on Johnson v. United States, 559 U. S. 133, in which the common-law

meaning of “force” was found to be a “comical misfit,” id., at 145,

when read into ACCA’s “violent felony” definition. But Johnson re-

solves this case in the Government’s favor: The very reasons for re-

jecting the common-law meaning in Johnson are reasons to embrace

2 UNITED STATES v. CASTLEMAN

Syllabus

it here. First, whereas it was “unlikely” that Congress meant to in-

corporate in ACCA’s “violent felony” definition “a phrase that the

common law gave peculiar meaning only in its definition of a misde-

meanor,” id., at 141, it is likely that Congress meant to incorporate

the misdemeanor-specific meaning of “force” in defining a “misde-

meanor crime of domestic violence.” Second, whereas the word “vio-

lent” or “violence” standing alone “connotes a substantial degree of

force,” id., at 140, that is not true of “domestic violence,” which is a

term of art encompassing acts that one might not characterize as “vi-

olent” in a nondomestic context. Third, whereas this Court has hesi-

tated to apply ACCA to “crimes which, though dangerous, are not

typically committed by those whom one normally labels ‘armed career

criminals,’ ” Begay v. United States, 553 U. S. 137, 146, there is no

anomaly in grouping domestic abusers convicted of generic assault or

battery offenses together with others whom §922(g) disqualifies from

gun ownership. In addition, a contrary reading would have made

§922(g)(9) inoperative in at least ten States when it was enacted.

Pp. 4–10.

(b) Under this definition of “physical force,” Castleman’s conviction

qualifies as a “misdemeanor crime of domestic violence.” The appli-

cation of the modified categorical approach—consulting Castleman’s

state indictment to determine whether his conviction entailed the el-

ements necessary to constitute the generic federal offense—is

straightforward. Castleman pleaded guilty to “intentionally or know-

ingly caus[ing] bodily injury to” the mother of his child, and the

knowing or intentional causation of bodily injury necessarily involves

the use of physical force. First, a “bodily injury” must result from

“physical force.” The common-law concept of “force” encompasses

even its indirect application, making it impossible to cause bodily in-

jury without applying force in the common-law sense. Second, the

knowing or intentional application of force is a “use” of force. Leocal

v. Ashcroft, 543 U. S. 1, distinguished. Pp. 10–13.

(c) Castleman claims that legislative history, the rule of lenity, and

the canon of constitutional avoidance weigh against this Court’s in-

terpretation of §922(g)(9), but his arguments are unpersuasive.

Pp. 14–15.

695 F. 3d 582, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCAL-

IA, J., filed an opinion concurring in part and concurring in the judg-

ment. ALITO, J., filed an opinion concurring in the judgment, in which

THOMAS, J., joined.

Cite as: 572 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–1371

_________________

UNITED STATES, PETITIONER v. JAMES ALVIN

CASTLEMAN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 26, 2013]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Recognizing that “[f]irearms and domestic strife are a

potentially deadly combination,” United States v. Hayes,

555 U. S. 415, 427 (2009), Congress forbade the possession

of firearms by anyone convicted of “a misdemeanor crime

of domestic violence.” 18 U. S. C. §922(g)(9). The re-

spondent, James Alvin Castleman, pleaded guilty to the

misdemeanor offense of having “intentionally or knowingly

cause[d] bodily injury to” the mother of his child. App.

27. The question before us is whether this conviction

qualifies as “a misdemeanor crime of domestic violence.”

We hold that it does.

I

A

This country witnesses more than a million acts of

domestic violence, and hundreds of deaths from domestic

violence, each year.1 See Georgia v. Randolph, 547 U. S.

——————

1 See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J.

Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct.

2013) (Table 1) (1,259,390 incidents of domestic violence in 2012),

2 UNITED STATES v. CASTLEMAN

Opinion of the Court

103, 117–118 (2006). Domestic violence often escalates in

severity over time, see Brief for Major Cities Chiefs Asso-

ciation et al. as Amici Curiae 13–15; Brief for National

Network to End Domestic Violence et al. as Amici Curiae

9–12, and the presence of a firearm increases the likeli-

hood that it will escalate to homicide, see id., at 14–15;

Campbell et al., Assessing Risk Factors for Intimate Part-

ner Homicide, DOJ, Nat. Institute of Justice J., No. 250,

p. 16 (Nov. 2003) (“When a gun was in the house, an

abused woman was 6 times more likely than other abused

women to be killed”). “[A]ll too often,” as one Senator

noted during the debate over §922(g)(9), “the only differ-

ence between a battered woman and a dead woman is the

presence of a gun.” 142 Cong. Rec. 22986 (1996) (state-

ment of Sen. Wellstone).

Congress enacted §922(g)(9), in light of these sobering

facts, to “ ‘close [a] dangerous loophole’ ” in the gun control

laws: While felons had long been barred from possessing

guns, many perpetrators of domestic violence are convicted

only of misdemeanors. Hayes, 555 U. S., at 418, 426.

Section 922(g)(9) provides, as relevant, that any person

“who has been convicted . . . of a misdemeanor crime of

domestic violence” may not “possess in or affecting com-

merc[e] any firearm or ammunition.” With exceptions that

do not apply here, the statute defines a “misdemeanor

crime of domestic violence” as

“an offense that . . . (i) is a misdemeanor under Fed-

eral, State, or Tribal law; and (ii) has, as an element,

the use or attempted use of physical force, or the

——————

online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet ma-

terials as visited Mar. 19, 2014, and available in Clerk of Court’s

case file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner

Violence, 1993–2001, p. 1 (Feb. 2003) (violence among intimate part-

ners caused deaths of 1,247 women and 440 men in 2000), online at

http://www.bjs.gov/content/pub/pdf/ipv01.pdf.

Cite as: 572 U. S. ____ (2014) 3

Opinion of the Court

threatened use of a deadly weapon, committed by a

current or former spouse, parent, or guardian of the

victim, by a person with whom the victim shares a

child in common, by a person who is cohabiting with

or has cohabited with the victim as a spouse, parent,

or guardian, or by a person similarly situated to

a spouse, parent, or guardian of the victim.”

§921(a)(33)(A).

This case concerns the meaning of one phrase in this

definition: “the use . . . of physical force.”

B

In 2001, Castleman was charged in a Tennessee court

with having “intentionally or knowingly cause[d] bodily

injury to” the mother of his child, in violation of Tenn.

Code Ann. §39–13–111(b) (Supp. 2002). App. 27. He

pleaded guilty. Id., at 29.

In 2008, federal authorities learned that Castleman was

selling firearms on the black market. A grand jury in the

Western District of Tennessee indicted him on two counts

of violating §922(g)(9) and on other charges not relevant

here. Id., at 13–16.

Castleman moved to dismiss the §922(g)(9) charges,

arguing that his Tennessee conviction did not qualify as a

“misdemeanor crime of domestic violence” because it did

not “ha[ve], as an element, the use . . . of physical force,”

§921(a)(33)(A)(ii). The District Court agreed, on the the-

ory that “the ‘use of physical force’ for §922(g)(9) purposes”

must entail “violent contact with the victim.” App. to Pet.

for Cert. 40a. The court held that a conviction under the

relevant Tennessee statute cannot qualify as a “misde-

meanor crime of domestic violence” because one can cause

bodily injury without “violent contact”—for example, by

“deceiving [the victim] into drinking a poisoned beverage.”

Id., at 41a.

A divided panel of the U. S. Court of Appeals for the

4 UNITED STATES v. CASTLEMAN

Opinion of the Court

Sixth Circuit affirmed, by different reasoning. 695 F. 3d

582 (2012). The majority held that the degree of physical

force required by §921(a)(33)(A)(ii) is the same as required

by §924(e)(2)(B)(i), which defines “violent felony.” Id., at

587. Applying our decision in Johnson v. United States,

559 U. S. 133 (2010), which held that §924(e)(2)(B)(i) re-

quires “violent force,” id., at 140, the majority held that

Castleman’s conviction did not qualify as a “misdemeanor

crime of domestic violence” because Castleman could have

been convicted for “caus[ing] a slight, nonserious physical

injury with conduct that cannot be described as violent.”

695 F. 3d, at 590. Judge McKeague dissented, arguing

both that the majority erred in extending Johnson’s defini-

tion of a “violent felony” to the context of a “misdemeanor

crime of domestic violence” and that, in any event, Castle-

man’s conviction satisfied the Johnson standard. Id., at

593–597.

The Sixth Circuit’s decision deepened a split of author-

ity among the Courts of Appeals. Compare, e.g., United

States v. Nason, 269 F. 3d 10, 18 (CA1 2001) (§922(g)(9)

“encompass[es] crimes characterized by the application of

any physical force”), with United States v. Belless, 338

F. 3d 1063, 1068 (CA9 2003) (§922(g)(9) covers only “the

violent use of force”). We granted certiorari to resolve this

split, 570 U. S. ___ (2013), and now reverse the Sixth Cir-

cuit’s judgment.

II

A

“It is a settled principle of interpretation that, absent

other indication, ‘Congress intends to incorporate the well-

settled meaning of the common-law terms it uses.’ ” Sek-

har v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3).

Seeing no “other indication” here, we hold that Congress

incorporated the common-law meaning of “force”—namely,

offensive touching—in §921(a)(33)(A)’s definition of a “mis-

Cite as: 572 U. S. ____ (2014) 5

Opinion of the Court

demeanor crime of domestic violence.”

Johnson resolves this case in the Government’s favor—

not, as the Sixth Circuit held, in Castleman’s. In Johnson,

we considered whether a battery conviction was a “violent

felony” under the Armed Career Criminal Act (ACCA),

§924(e)(1). As here, ACCA defines such a crime as one

that “has as an element the use . . . of physical force,”

§924(e)(2)(B)(i). We began by observing that at common

law, the element of force in the crime of battery was “satis-

fied by even the slightest offensive touching.” 559 U. S., at

139 (citing 3 W. Blackstone, Commentaries on the Laws of

England 120 (1768)).2 And we recognized the general rule

that “a common-law term of art should be given its estab-

lished common-law meaning,” except “where that meaning

does not fit.” 559 U. S., at 139. We declined to read the

common-law meaning of “force” into ACCA’s definition of a

“violent felony,” because we found it a “comical misfit with

the defined term.” Id., at 145; see United States v. Ste-

vens, 559 U. S. 460, 474 (2010) (“[A]n unclear definitional

phrase may take meaning from the term to be defined”).

In defining a “ ‘violent felony,’ ” we held, “the phrase ‘physi-

cal force’ ” must “mea[n] violent force.” Johnson, 559 U. S.,

at 140. But here, the common-law meaning of “force” fits

perfectly: The very reasons we gave for rejecting that

meaning in defining a “violent felony” are reasons to em-

brace it in defining a “misdemeanor crime of domestic

violence.”3

——————

2 We explained that the word “physical” did not add much to the word

“force,” except to distinguish “force exerted by and through concrete

bodies . . . from, for example, intellectual force or emotional force.”

Johnson, 559 U. S., at 138.

3 Johnson specifically reserved the question whether our definition of

“physical force” would extend to 18 U. S. C. §922(g)(9). 559 U. S., at

143–144. And these reasons for declining to extend Johnson’s defini-

tion to §922(g)(9) serve equally to rebut the “presumption of consistent

usage” on which JUSTICE SCALIA’s concurrence heavily relies, post, at

1–2, 4.

6 UNITED STATES v. CASTLEMAN

Opinion of the Court

First, because perpetrators of domestic violence are

“routinely prosecuted under generally applicable assault

or battery laws,” Hayes, 555 U. S., at 427, it makes sense

for Congress to have classified as a “misdemeanor crime of

domestic violence” the type of conduct that supports a

common-law battery conviction. Whereas it was “unlikely”

that Congress meant to incorporate in the definition of a

“ ‘violent felony’ a phrase that the common law gave pecu-

liar meaning only in its definition of a misdemeanor,”

Johnson, 559 U. S., at 141, it is likely that Congress

meant to incorporate that misdemeanor-specific meaning

of “force” in defining a “misdemeanor crime of domestic

violence.”

Second, whereas the word “violent” or “violence” stand-

ing alone “connotes a substantial degree of force,” id., at

140,4 that is not true of “domestic violence.” “Domestic

——————

4 This portion of Johnson’s analysis relied heavily on Leocal v. Ash-

croft, 543 U. S. 1 (2004), in which we interpreted the meaning of a

“crime of violence” under 18 U. S. C. §16. As in Johnson and here, the

statute defines a “crime of violence” in part as one “that has as an

element the use . . . of physical force,” §16(a). In support of our holding

in Johnson, we quoted Leocal’s observation that “ ‘[t]he ordinary mean-

ing of [a “crime of violence”] . . . suggests a category of violent, active

crimes.’ ” 559 U. S., at 140 (quoting 543 U. S., at 11).

The Courts of Appeals have generally held that mere offensive

touching cannot constitute the “physical force” necessary to a “crime of

violence,” just as we held in Johnson that it could not constitute the

“physical force” necessary to a “violent felony.” See Karimi v. Holder,

715 F. 3d 561, 566–568 (CA4 2013); Singh v. Ashcroft, 386 F. 3d 1228,

1233 (CA9 2004); Flores v. Ashcroft, 350 F. 3d 666, 672 (CA7 2003);

United States v. Venegas-Ornelas, 348 F. 3d 1273, 1275 (CA10 2003);

United States v. Landeros-Gonzales, 262 F. 3d 424, 426 (CA5 2001); see

also United States v. Rede-Mendez, 680 F. 3d 552, 558 (CA6 2012)

(commenting generally that “[i]n the crime of violence context, ‘the

phrase “physical force” means violent force’ ”); United States v. Hailese-

lassie, 668 F. 3d 1033, 1035 (CA8 2012) (dicta). But see Hernandez v.

U. S. Attorney General, 513 F. 3d 1336, 1340, n. 3 (CA11 2008) (per

curiam). The Board of Immigration Appeals has similarly extended

Johnson’s requirement of violent force to the context of a “crime of

Cite as: 572 U. S. ____ (2014) 7

Opinion of the Court

violence” is not merely a type of “violence”; it is a term of

art encompassing acts that one might not characterize as

“violent” in a nondomestic context. See Brief for National

Network to End Domestic Violence et al. as Amici Curiae

4–9; DOJ, Office on Violence Against Women, Domestic

Violence (defining physical forms of domestic violence to

include “[h]itting, slapping, shoving, grabbing, pinching,

biting, [and] hair pulling”), online at http://www.ovw.

usdoj.gov/domviolence.htm.5 Indeed, “most physical as-

saults committed against women and men by intimates

are relatively minor and consist of pushing, grabbing,

shoving, slapping, and hitting.” DOJ, P. Tjaden & N.

Thoennes, Extent, Nature and Consequences of Intimate

Partner Violence 11 (2000).

Minor uses of force may not constitute “violence” in the

generic sense. For example, in an opinion that we cited

——————

violence” under §16. Matter of Velasquez, 25 I. & N. Dec. 278, 282

(2010). Nothing in today’s opinion casts doubt on these holdings,

because—as we explain—“domestic violence” encompasses a range of

force broader than that which constitutes “violence” simpliciter.

We note, as does JUSTICE SCALIA’s concurrence, post, at 8, and n. 7,

that federal law elsewhere defines “domestic violence” in more limited

terms: For example, a provision of the Immigration and Nationality Act

defines a “ ‘crime of domestic violence’ ” as “any crime of violence (as

defined by [18 U. S. C. §16])” committed against a qualifying relation. 8

U. S. C. §1227(a)(2)(E)(i). Our view that “domestic violence” encom-

passes acts that might not constitute “violence” in a nondomestic

context does not extend to a provision like this, which specifically

defines “domestic violence” by reference to a generic “crime of violence.”

5 See also A. Ganley, Understanding Domestic Violence, in Im-

proving the Health Care Response to Domestic Violence: A Re-

source Manual for Health Care Providers 18 (2d ed. 1996),

online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/

improving_healthcare_manual_1.pdf (physical forms of domestic violence

“may include spitting, scratching, biting, grabbing, shaking, shoving,

pushing, restraining, throwing, twisting, [or] slapping”); M. McCue,

Domestic Violence: A Reference Handbook 6 (1995) (noting that physi-

cal forms of domestic violence “may begin with relatively minor as-

saults such as painful pinching or squeezing”).

8 UNITED STATES v. CASTLEMAN

Opinion of the Court

with approval in Johnson, the Seventh Circuit noted that

it was “hard to describe . . . as ‘violence’ ” “a squeeze of the

arm [that] causes a bruise.” Flores v. Ashcroft, 350 F. 3d

666, 670 (2003). But an act of this nature is easy to de-

scribe as “domestic violence,” when the accumulation of

such acts over time can subject one intimate partner to the

other’s control. If a seemingly minor act like this draws

the attention of authorities and leads to a successful pros-

ecution for a misdemeanor offense, it does not offend

common sense or the English language to characterize the

resulting conviction as a “misdemeanor crime of domestic

violence.”

JUSTICE SCALIA’s concurrence discounts our reference to

social-science definitions of “domestic violence,” including

those used by the organizations most directly engaged

with the problem and thus most aware of its dimensions.

See post, at 8–11. It is important to keep in mind, how-

ever, that the operative phrase we are construing is not

“domestic violence”; it is “physical force.” §921(a)(33)(A).

“Physical force” has a presumptive common-law meaning,

and the question is simply whether that presumptive

meaning makes sense in defining a “misdemeanor crime of

domestic violence.”6

A third reason for distinguishing Johnson’s definition of

“physical force” is that unlike in Johnson—where a deter-

mination that the defendant’s crime was a “violent felony”

would have classified him as an “armed career criminal”—

——————

6 The concurrence’s reliance on definitions of “domestic violence” in

other statutory provisions, see post, at 8, and n. 7, is similarly unper-

suasive. These other provisions show that when Congress wished to

define “domestic violence” as a type of “violence” simpliciter, it knew

how to do so. That it did not do so here suggests, if anything, that it did

not mean to. See, e.g., Custis v. United States, 511 U. S. 485, 492

(1994). This also answers the concurrence’s suggestion, post, at 10,

that our holding will somehow make it difficult for Congress to define

“domestic violence”—where it wants to—as requiring violent force.

Cite as: 572 U. S. ____ (2014) 9

Opinion of the Court

the statute here groups those convicted of “misdemeanor

crimes of domestic violence” with others whose conduct

does not warrant such a designation. Section 922(g) bars

gun possession by anyone “addicted to any controlled

substance,” §922(g)(3); by most people who have “been

admitted to the United States under a nonimmigrant

visa,” §922(g)(5)(B); by anyone who has renounced United

States citizenship, §922(g)(7); and by anyone subject to a

domestic restraining order, §922(g)(8). Whereas we have

hesitated (as in Johnson) to apply the Armed Career

Criminal Act to “crimes which, though dangerous, are not

typically committed by those whom one normally labels

‘armed career criminals,’ ” Begay v. United States, 553

U. S. 137, 146 (2008), we see no anomaly in grouping

domestic abusers convicted of generic assault or battery

offenses together with the others whom §922(g) disquali-

fies from gun ownership.

An additional reason to read the statute as we do is that

a contrary reading would have rendered §922(g)(9) inoper-

ative in many States at the time of its enactment. The

“assault or battery laws” under which “domestic abusers

were . . . routinely prosecuted” when Congress enacted

§922(g)(9), and under which many are still prosecuted

today, Hayes, 555 U. S., at 427, fall generally into two

categories: those that prohibit both offensive touching and

the causation of bodily injury, and those that prohibit only

the latter. See Brief for United States 36–38. Whether or

not the causation of bodily injury necessarily entails vio-

lent force—a question we do not reach—mere offensive

touching does not. See Johnson, 559 U. S., at 139–140. So

if offensive touching did not constitute “force” under

§921(a)(33)(A), then §922(g)(9) would have been ineffec-

tual in at least 10 States—home to nearly thirty percent of

the Nation’s population7—at the time of its enactment.

——————

7 See U. S. Census Bureau, Time Series of Intercensal State Popula-

10 UNITED STATES v. CASTLEMAN

Opinion of the Court

See post, at 6, and n. 5 (SCALIA, J., concurring in part and

concurring in judgment) (acknowledging that §922(g)(9)

would have been inapplicable in California and nine other

States if it did not encompass offensive touching); App. to

Brief for United States 10a–16a (listing statutes prohibit-

ing both offensive touching and the causation of bodily

injury, only some of which are divisible); cf. Hayes, 555

U. S., at 427 (rejecting an interpretation under which

“§922(g)(9) would have been ‘a dead letter’ in some two-

thirds of the States from the very moment of its enact-

ment”).

In sum, Johnson requires that we attribute the com-

mon-law meaning of “force” to §921(a)(33)(A)’s definition of

a “misdemeanor crime of domestic violence” as an offense

that “has, as an element, the use or attempted use

of physical force.” We therefore hold that the requirement

of “physical force” is satisfied, for purposes of §922(g)(9),

by the degree of force that supports a common-law battery

conviction.

B

Applying this definition of “physical force,” we conclude

that Castleman’s conviction qualifies as a “misdemeanor

crime of domestic violence.” In doing so, we follow the

analytic approach of Taylor v. United States, 495 U. S. 575

(1990), and Shepard v. United States, 544 U. S. 13 (2005).

We begin with Taylor’s categorical approach, under which

we look to the statute of Castleman’s conviction to deter-

mine whether that conviction necessarily “ha[d], as an

element, the use or attempted use of physical force, or the

threatened use of a deadly weapon,” §921(a)(33)(A).

The Tennessee statute under which Castleman was

convicted made it a crime to “commi[t] an assault . . .

——————

tion Estimates: April 1, 1990 to April 1, 2000, online at http://www.cen-

sus.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (esti-

mating state and national populations as of July 1, 1996).

Cite as: 572 U. S. ____ (2014) 11

Opinion of the Court

against” a “family or household member”—in Castleman’s

case, the mother of his child. Tenn. Code Ann. §39–13–

111(b). A provision incorporated by reference, §39–13–

101, defined three types of assault: “(1) [i]ntentionally,

knowingly or recklessly caus[ing] bodily injury to another;

(2) [i]ntentionally or knowingly caus[ing] another to rea-

sonably fear imminent bodily injury; or (3) [i]ntentionally

or knowingly caus[ing] physical contact with another” in a

manner that a “reasonable person would regard . . . as

extremely offensive or provocative.” §39–13–101(a).

It does not appear that every type of assault defined by

§39–13–101 necessarily involves “the use or attempted use

of physical force, or the threatened use of a deadly weapon,”

§921(a)(33)(A). A threat under §39–13–101(2) may

not necessarily involve a deadly weapon, and the merely

reckless causation of bodily injury under §39–13–101(1)

may not be a “use” of force.8

But we need not decide whether a domestic assault

conviction in Tennessee categorically constitutes a “mis-

demeanor crime of domestic violence,” because the parties

——————

8 We held in Leocal that “ ‘use’ requires active employment,” rather

“than negligent or merely accidental conduct.” 543 U. S., at 9. Al-

though Leocal reserved the question whether a reckless application of

force could constitute a “use” of force, id., at 13, the Courts of Appeals

have almost uniformly held that recklessness is not sufficient. See

United States v. Palomino Garcia, 606 F. 3d 1317, 1335–1336 (CA11

2010); Jimenez-Gonzalez v. Mukasey, 548 F. 3d 557, 560 (CA7 2008);

United States v. Zuniga-Soto, 527 F. 3d 1110, 1124 (CA10 2008); United

States v. Torres-Villalobos, 487 F. 3d 607, 615–616 (CA8 2007); United

States v. Portela, 469 F. 3d 496, 499 (CA6 2006); Fernandez-Ruiz

v. Gonzales, 466 F. 3d 1121, 1127–1132 (CA9 2006) (en banc); Garcia v.

Gonzales, 455 F. 3d 465, 468–469 (CA4 2006); Oyebanji v. Gonzales, 418

F. 3d 260, 263–265 (CA3 2005) (Alito, J.); Jobson v. Ashcroft, 326 F. 3d

367, 373 (CA2 2003); United States v. Chapa-Garza, 243 F. 3d 921, 926

(CA5 2001). But see United States v. Booker, 644 F. 3d 12, 19–20 (CA1

2011) (noting that the First Circuit had not resolved the recklessness

issue under Leocal, but declining to extend Leocal’s analysis to

§922(g)(9)).

12 UNITED STATES v. CASTLEMAN

Opinion of the Court

do not contest that §39–13–101 is a “ ‘divisible statute,’ ”

Descamps v. United States, 570 U. S. ___, ___ (2013) (slip op.,

at 1). We may accordingly apply the modified categorical

approach, consulting the indictment to which Castleman

pleaded guilty in order to determine whether his convic-

tion did entail the elements necessary to constitute the

generic federal offense. Id., at ___ (slip op., at 1–2); see

Shepard, 544 U. S., at 26. Here, that analysis is straight-

forward: Castleman pleaded guilty to having “intentionally

or knowingly cause[d] bodily injury” to the mother of his

child, App. 27, and the knowing or intentional causation of

bodily injury necessarily involves the use of physical force.

First, a “bodily injury” must result from “physical force.”

Under Tennessee law, “bodily injury” is a broad term: It

“includes a cut, abrasion, bruise, burn or disfigurement;

physical pain or temporary illness or impairment of the

function of a bodily member, organ, or mental faculty.”

Tenn. Code Ann. §39–11–106(a)(2) (1997). JUSTICE SCA-

LIA’s concurrence suggests that these forms of injury ne-

cessitate violent force, under Johnson’s definition of that

phrase. Post, at 3. But whether or not that is so—a

question we do not decide—these forms of injury do neces-

sitate force in the common-law sense.

The District Court thought otherwise, reasoning that

one can cause bodily injury “without the ‘use of physical

force’ ”—for example, by “deceiving [the victim] into drink-

ing a poisoned beverage, without making contact of any

kind.” App. to Pet. for Cert. 41a. But as we explained in

Johnson, “physical force” is simply “force exerted by and

through concrete bodies,” as opposed to “intellectual force

or emotional force.” 559 U. S., at 138. And the common-

law concept of “force” encompasses even its indirect ap-

plication. “Force” in this sense “describ[es] one of the

elements of the common-law crime of battery,” id., at 139,

and “[t]he force used” in battery “need not be applied

directly to the body of the victim.” 2 W. LaFave, Substan-

Cite as: 572 U. S. ____ (2014) 13

Opinion of the Court

tive Criminal Law §16.2(b) (2d ed. 2003). “[A] battery may

be committed by administering a poison or by infecting

with a disease, or even by resort to some intangible sub-

stance,” such as a laser beam. Ibid. (footnote omitted)

(citing State v. Monroe, 121 N. C. 677, 28 S. E. 547 (1897)

(poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917)

(disease); Adams v. Commonwealth, 33 Va. App. 463, 534

S. E. 2d 347 (2000) (laser beam)). It is impossible to cause

bodily injury without applying force in the common-law

sense.

Second, the knowing or intentional application of force

is a “use” of force. Castleman is correct that under Leocal

v. Ashcroft, 543 U. S. 1 (2004), the word “use” “conveys the

idea that the thing used (here, ‘physical force’) has been

made the user’s instrument.” Brief for Respondent 37.

But he errs in arguing that although “[p]oison may have

‘forceful physical properties’ as a matter of organic chemis-

try, . . . no one would say that a poisoner ‘employs’ force or

‘carries out a purpose by means of force’ when he or

she sprinkles poison in a victim’s drink,” ibid. The “use

of force” in Castleman’s example is not the act of

“sprinkl[ing]” the poison; it is the act of employing poison

knowingly as a device to cause physical harm. That the

harm occurs indirectly, rather than directly (as with a kick

or punch), does not matter. Under Castleman’s logic, after

all, one could say that pulling the trigger on a gun is not a

“use of force” because it is the bullet, not the trigger, that

actually strikes the victim. Leocal held that the “use” of

force must entail “a higher degree of intent than negligent

or merely accidental conduct,” 543 U. S., at 9; it did not

hold that the word “use” somehow alters the meaning of

“force.”

Because Castleman’s indictment makes clear that the

use of physical force was an element of his conviction, that

conviction qualifies as a “misdemeanor crime of domestic

violence.”

14 UNITED STATES v. CASTLEMAN

Opinion of the Court

III

We are not persuaded by Castleman’s nontextual argu-

ments against our interpretation of §922(g)(9).

A

First, Castleman invokes §922(g)(9)’s legislative history

to suggest that Congress could not have intended for the

provision to apply to acts involving minimal force. But to

the extent that legislative history can aid in the inter-

pretation of this statute, Castleman’s reliance on it is

unpersuasive.

Castleman begins by observing that during the debate

over §922(g)(9), several Senators argued that the provision

would help to prevent gun violence by perpetrators of

severe domestic abuse. Senator Lautenberg referred to

“serious spousal or child abuse” and to “violent individu-

als”; Senator Hutchison to “ ‘people who batter their

wives’ ”; Senator Wellstone to people who “brutalize” their

wives or children; and Senator Feinstein to “severe and

recurring domestic violence.” 142 Cong. Rec. 22985–

22986, 22988. But as we noted above, see supra, at 2, the

impetus of §922(g)(9) was that even perpetrators of severe

domestic violence are often convicted “under generally

applicable assault or battery laws.” Hayes, 555 U. S., at

427. So nothing about these Senators’ isolated references

to severe domestic violence suggests that they would not

have wanted §922(g)(9) to apply to a misdemeanor assault

conviction like Castleman’s.

Castleman next observes that §922(g)(9) is the product

of a legislative compromise. The provision originally

barred gun possession for any “crime of domestic violence,”

defined as any “felony or misdemeanor crime of violence,

regardless of length, term, or manner of punishment.” 142

Cong. Rec. 5840. Congress rewrote the provision to re-

quire the use of physical force in response to the concern

“that the term crime of violence was too broad, and could

Cite as: 572 U. S. ____ (2014) 15

Opinion of the Court

be interpreted to include an act such as cutting up a credit

card with a pair of scissors,” id., at 26675. See Hayes, 555

U. S., at 428. Castleman would have us conclude that

Congress thus meant “to narrow the scope of the statute to

convictions based on especially severe conduct.” Brief for

Respondent 24. But all Congress meant to do was address

the fear that §922(g)(9) might be triggered by offenses in

which no force at all was directed at a person. As Senator

Lautenberg noted, the revised text was not only “more

precise” than the original but also “probably broader.” 142

Cong. Rec. 26675.

B

We are similarly unmoved by Castleman’s invocation of

the rule of lenity. Castleman is correct that our “construc-

tion of a criminal statute must be guided by the need for

fair warning.” Crandon v. United States, 494 U. S. 152,

160 (1990). But “the rule of lenity only applies if, after

considering text, structure, history, and purpose, there

remains a grievous ambiguity or uncertainty in the stat-

ute, such that the Court must simply guess as to what

Congress intended.” Barber v. Thomas, 560 U. S. 474, 488

(2010) (citation and internal quotation marks omitted).

That is not the case here.

C

Finally, Castleman suggests—in a single paragraph—

that we should read §922(g)(9) narrowly because it impli-

cates his constitutional right to keep and bear arms. But

Castleman has not challenged the constitutionality of

§922(g)(9), either on its face or as applied to him, and the

meaning of the statute is sufficiently clear that we need

not indulge Castleman’s cursory nod to constitutional

avoidance concerns.

* * *

Castleman’s conviction for having “intentionally or

16 UNITED STATES v. CASTLEMAN

Opinion of the Court

knowingly cause[d] bodily injury to” the mother of his

child qualifies as a “misdemeanor crime of domestic vio-

lence.” The judgment of the United States Court of Ap-

peals for the Sixth Circuit is therefore reversed, and the

case is remanded for further proceedings consistent with

this opinion.

It is so ordered.

Cite as: 572 U. S. ____ (2014) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–1371

_________________

UNITED STATES, PETITIONER v. JAMES ALVIN

CASTLEMAN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 26, 2014]

JUSTICE SCALIA, concurring in part and concurring in

the judgment.

I agree with the Court that intentionally or knowingly

causing bodily injury to a family member “has, as an

element, the use . . . of physical force,” 18 U. S. C.

§ §921(a)(33)(A)(ii), and thus constitutes a “misdemeanor

crime of domestic violence,” §922(g)(9). I write separately,

however, because I reach that conclusion on narrower

grounds.

I

Our decision in Johnson v. United States, 559 U. S. 133

(2010), is the natural place to begin. Johnson is signifi-

cant here because it concluded that “the phrase ‘physical

force’ means violent force—that is, force capable of caus-

ing physical pain or injury to another person.” Id., at

140 (second emphasis added). This is an easy case if

the phrase “physical force” has the same meaning in

§921(a)(33)(A)(ii), the provision that defines “misdemeanor

crime of domestic violence” for purposes of §922(g)(9), as it

does in §924(e)(2)(B)(ii), the provision interpreted in John-

son, since it is impossible to cause bodily injury without

using force “capable of ” producing that result.

There are good reasons to give the phrase Johnson’s

interpretation. One is the presumption of consistent

2 UNITED STATES v. CASTLEMAN

Opinion of SCALIA, J.

usage—the rule of thumb that a term generally means the

same thing each time it is used. Although the presump-

tion is most commonly applied to terms appearing in the

same enactment, e.g., IBP, Inc. v. Alvarez, 546 U. S. 21,

33–34 (2005), it is equally relevant “when Congress uses the

same language in two statutes having similar purposes,”

Smith v. City of Jackson, 544 U. S. 228, 233 (2005)

(plurality opinion); see also Northcross v. Board of Ed. of

Memphis City Schools, 412 U. S. 427, 428 (1973) (per

curiam). This case is a textbook candidate for application

of the Smith-Northcross branch of the rule. The “physical

force” clauses at issue here and in Johnson are worded in

nearly identical fashion: The former defines a “misde-

meanor crime of domestic violence” as an offense that

“has, as an element, the use or attempted use of physical

force,” §921(a)(33)(A)(ii), while the latter defines a “violent

felony” as an offense that “has as an element the use,

attempted use, or threatened use of physical force against

the person of another,” §924(e)(2)(B)(i). And both statutes

are designed to promote public safety by deterring a class

of criminals from possessing firearms.

Respondent’s arguments fail to overcome the presump-

tion of consistent usage. In respondent’s view, “physical

force” cannot mean “any force that produces any pain

or bodily injury,” Brief for Respondent 25, because

§921(a)(33)(A)(ii) defines a violent crime and one can in-

flict all sorts of minor injuries—bruises, paper cuts,

etc.—by engaging in nonviolent behavior. Respondent

therefore reasons that §921(a)(33)(A)(ii) requires force capa-

ble of inflicting “serious” bodily injury. That requirement

is more demanding than both of the plausible mean-

ings of “physical force” we identified in Johnson: common-

law offensive touching (which Johnson rejected) and force

capable of causing physical pain or injury, serious or

otherwise. See 559 U. S., at 138–140. It would be surpas-

sing strange to read a statute defining a “misdemeanor

Cite as: 572 U. S. ____ (2014) 3

Opinion of SCALIA, J.

crime of domestic violence” as requiring greater force than

the similarly worded statute in Johnson, which defined a

“violent felony,” and respondent does not make a convinc-

ing case for taking that extraordinary step.

For these reasons, I would give “physical force” the same

meaning in §921(a)(33)(A)(ii) as in Johnson. The rest of

the analysis is straightforward. Because “intentionally or

knowingly caus[ing] bodily injury,” App. 27, categorically

involves the use of “force capable of causing physical pain

or injury to another person,” 559 U. S., at 140, respond-

ent’s 2001 domestic-assault conviction qualifies as a “mis-

demeanor crime of domestic violence” under §922(g)(9).1

I would reverse the judgment below on that basis and

remand for further proceedings.

II

Unfortunately, the Court bypasses that narrower inter-

pretation of §921(a)(33)(A)(ii) in favor of a much broader

one that treats any offensive touching, no matter how

slight, as sufficient. That expansive common-law defini-

tion cannot be squared with relevant precedent or statu-

tory text.

We have twice addressed the meaning of “physical force”

in the context of provisions that define a class of violent

crimes. Both times, we concluded that “physical force”

means violent force. In Johnson, we thought it “clear that

in the context of a statutory definition of ‘violent felony,’

the phrase ‘physical force’ means violent force.” Id., at

140. And we held that common-law offensive touching—

the same type of force the Court today holds does consti-

tute “physical force”—is not sufficiently violent to satisfy

——————

1 Respondent argues at length that Tenn. Code Ann. §39–13–111(b)

(2013 Supp.) does not require the “use” of physical force, since it is

possible to cause bodily injury through deceit or other nonviolent

means. Brief for Respondent 30–42. The argument fails for the rea-

sons given by the Court. See ante, at 13.

4 UNITED STATES v. CASTLEMAN

Opinion of SCALIA, J.

the Armed Career Criminal Act’s “physical force” require-

ment. See id., at 140–144. Our analysis in Johnson was

premised in large part on our earlier interpretation of the

generic federal “crime of violence” statute, 18 U. S. C. §16.

In Leocal v. Ashcroft, 543 U. S. 1, 11 (2004), we observed

that §16(a)—which defines a “crime of violence” as “an

offense that has as an element the use, attempted use,

or threatened use of physical force against the person or

property of another”—comprehends “a category of vio-

lent, active crimes.” The textual similarity between

§921(a)(33)(A)(ii)’s “physical force” clause and the clauses

at issue in Johnson and Leocal thus raises the question:

Why should the same meaning not apply here?

The Court gives four responses that merit discussion,

none of which withstands scrutiny. First, the Court in-

vokes the “ ‘settled principle of interpretation that, absent

other indication, “Congress intends to incorporate the

well-settled meaning of the common-law terms it uses.” ’ ”

Ante, at 4 (quoting Sekhar v. United States, 570 U. S. ___,

___ (2013) (slip op., at 3)). That principle is of limited

relevance, since the presumption of consistent statutory

meaning is precisely “other indication” that §921(a)(33)

(A)(ii) does not incorporate the common-law meaning.

Anyway, a more accurate formulation of the principle

cited by the Court is that when “ ‘a word is obviously

transplanted from another legal source, whether the

common law or other legislation, it brings the old soil with

it.’ ” Sekhar, supra, at ___ (slip op., at 3–4) (quoting

Frankfurter, Some Reflections on the Reading of Statutes,

47 Colum. L. Rev. 527, 537 (1947); emphasis added).

Section 921(a)(33)(A)(ii) was enacted after the statutes

involved in Johnson and Leocal,2 and its “physical force”

——————

2 Section §921(a)(33)(A)(ii) was enacted in 1996. See §658, 110 Stat.

3009–371. The Armed Career Criminal Act provision interpreted in

Johnson was enacted in 1986, see §1402, 100 Stat. 3207–39, and the

Cite as: 572 U. S. ____ (2014) 5

Opinion of SCALIA, J.

clause is quite obviously modeled on theirs.

Second, the Court asserts that any interpretation of

“physical force” that excludes offensive touching “would

have rendered §922(g)(9) inoperative in many States at

the time of its enactment.” Ante, at 9. But there is no

interpretive principle to the effect that statutes must be

given their broadest possible application, and §922(g)(9)

without offensive touching would have had application in

four-fifths of the States. Although domestic violence was

“routinely prosecuted” under misdemeanor assault or bat-

tery statutes when Congress enacted §922(g)(9), United

States v. Hayes, 555 U. S. 415, 427 (2009), and such stat-

utes generally prohibited “both offensive touching and the

causation of bodily injury” or “only the latter,” ante, at 9, it

does not follow that interpreting “physical force” to mean

violent force would have rendered §922(g)(9) a practical

nullity. To the contrary, §922(g)(9) would have worked

perfectly well in 38 of the 48 States that had misdemeanor

assault or battery statutes at the time of §922(g)(9)’s

enactment. At that point, 19 States had statutes that

covered infliction of bodily injury but not offensive touch-

ing,3 and 19 more had statutes that prohibited both of

types of conduct, but did so in a divisible manner—thus

——————

“crime of violence” statute discussed in Leocal was enacted in 1984, see

§1001, 98 Stat. 2136.

3 See Ala. Code §13A–6–22 (1995); Alaska Stat. §11.41.230 (1996);

Ark. Code Ann. §5–13–203 (1993); Colo. Rev. Stat. Ann. §18–3–204

(Westlaw 1996); Conn. Gen. Stat. §53a–61 (1996); Haw. Rev. Stat. Ann.

§707–712 (1994); Ky. Rev. Stat. Ann. §508.030 (Michie 1990); Minn.

Stat. §609.224 (Westlaw 1995); Miss. Code Ann. §97–3–7 (Westlaw

1995); Neb. Rev. Stat. §28–310 (1995); N. J. Stat. Ann. §2C:12–1 (West

1995); N. Y. Penal Law Ann. §120.00 (Westlaw 1995); N. D. Cent. Code

Ann. §12.1–17–01 (Westlaw 1995); Ohio Rev. Code Ann. §2903.13

(Lexis 1993); Ore. Rev. Stat. §163.160 (1991); 18 Pa. Cons. Stat. Ann.

§2701 (Westlaw 1995); S. D. Codified Laws §22–18–1 (1988); Vt. Stat.

Ann., Tit. 13, §1023 (1995); Wis. Stat. Ann. §940.19 (West Cum. Supp.

1995).

6 UNITED STATES v. CASTLEMAN

Opinion of SCALIA, J.

making it possible to identify the basis for a conviction by

inspecting charging documents and similar materials, see

Descamps v. United States, 570 U. S. ___, ___ (2013) (slip

op., at 5–8).4 That leaves only 10 States whose misde-

meanor assault or battery statutes (1) prohibited offensive

touching, and (2) were framed in such a way that offensive

touching was indivisible from physical violence.5 The fact

that §922(g)(9) would not have applied immediately in 10

States is hardly enough to trigger the presumption against

ineffectiveness—the idea that Congress presumably does

not enact useless laws. Compare Hayes, supra, at 427

(rejecting an interpretation that supposedly would have

rendered §922(g)(9) “ ‘a dead letter’ in some two-thirds of

the States”). I think it far more plausible that Congress

enacted a statute that covered domestic-violence convic-

tions in four-fifths of the States, and left it to the handful

of nonconforming States to change their laws (as some

have), than that Congress adopted a meaning of “domestic

violence” that included the slightest unwanted touching.

——————

4 See Ariz. Rev. Stat. Ann. §13–1203 (Westlaw 1995); Del. Code Ann.,

Tit. 11, §§601, 611 (1995); Fla. Stat. §784.03 (Westlaw 1995); Ga. Code

Ann. §16–5–23 (1996); Idaho Code §18–903 (Westlaw 1996); Ill. Comp.

Stat., ch. 720, §5/12–3 (West 1994); Ind. Code §35–42–2–1 (Michie

1994); Iowa Code §708.1 (Westlaw 1996); Kan. Stat. Ann. §21–3142

(1995); Me. Rev. Stat. Ann., Tit. 17–A, §207 (Westlaw 1996); Mo. Rev.

Stat. §565.070 (Westlaw 1996); Mont. Code Ann. §45–5–201 (1995);

N. H. Rev. Stat. Ann. §631:2–a (West 1996); N. M. Stat. Ann. §§30–3–4,

30–3–5 (Westlaw 1996); Tenn. Code Ann. §39–13–101 (1991); Tex.

Penal Code Ann. §22.01 (Westlaw 1996); Utah Code Ann. §76–5–102

(Lexis 1995); W. Va. Code Ann. §61–2–9 (Lexis 1992); Wyo. Stat. Ann.

§6–2–501 (1996).

5 See Cal. Penal Code Ann. §242 (Westlaw 1996); La. Rev. Stat. Ann.

§14:33 (Westlaw 1996); Mass. Gen. Laws, ch. 265, §13A (West 1994);

Mich. Comp. Laws §750.81 (1991); Nev. Rev. Stat. Ann. §200.481 (West

Cum. Supp. 1995); N. C. Gen. Stat. Ann. §14–33 (Lexis 1993); Okla.

Stat., Tit. 21, §642 (West 1991); R. I. Gen. Laws §11–5–3 (Michie

1994); Va. Code Ann. §18.2–57 (Michie 1996); Wash. Rev. Code Ann.

§9A.36.041 (Michie 1994).

Cite as: 572 U. S. ____ (2014) 7

Opinion of SCALIA, J.

Third, the Court seizes on the one and only meaningful

distinction between §921(a)(33)(A)(ii) and the other provi-

sions referred to above: that it defines a violent “misde-

meanor” rather than a “violent felony” or an undifferentiated

“crime of violence.” Ante, at 5–6. We properly take

account of the term being defined when interpreting “an

unclear definitional phrase.” United States v. Stevens, 559

U. S. 460, 474 (2010); but see Babbitt v. Sweet Home

Chapter, Communities for Great Ore., 515 U. S. 687, 717–

719 (1995) (SCALIA, J., dissenting). But when we do so, we

consider the entire term being defined, not just part of it.

Here, the term being defined is “misdemeanor crime of

domestic violence.” Applying the term-to-be-defined canon

thus yields the unremarkable conclusion that “physical

force” in §921(a)(33)(A)(ii) refers to the type of force in-

volved in violent misdemeanors (such as bodily-injury

offenses) rather than nonviolent ones (such as offensive

touching).

Fourth, and finally, the Court seeks to evade Johnson

and Leocal on the ground that “ ‘domestic violence’ encom-

passes a range of force broader than that which con-

stitutes ‘violence’ simpliciter.” Ante, at 6, n. 4. That is

to say, an act need not be violent to qualify as “domestic

violence.” That absurdity is not only at war with the

English language, it is flatly inconsistent with defini-

tions of “domestic violence” from the period surrounding

§921(a)(33)(A)(ii)’s enactment. At the time, dictionaries

defined “domestic violence” as, for instance, “[v]iolence

between members of a household, usu. spouses; an assault

or other violent act committed by one member of a house-

hold against another,” Black’s Law Dictionary 1564 (7th

ed. 1999), and “[v]iolence toward or physical abuse of one’s

spouse or domestic partner,” American Heritage Diction-

ary 534 (4th ed. 2000).6 Those definitions, combined with

——————

6 Definitions of “physical force” from the same period are also at odds

8 UNITED STATES v. CASTLEMAN

Opinion of SCALIA, J.

the absence of “domestic violence” entries in earlier dic-

tionaries, see, e.g., Black’s Law Dictionary 484 (6th ed.

1990); American Heritage Dictionary 550 (3d ed. 1992),

make it utterly implausible that Congress adopted a “term

of art” definition “encompassing acts that one might not

characterize as ‘violent’ in a nondomestic context,” ante,

at 7.

The Court’s inventive, nonviolent definition fares no

better when judged against other accepted sources of

meaning. Current dictionaries give “domestic violence”

the same meaning as above: ordinary violence that occurs

in a domestic context. See, e.g., American Heritage Dic-

tionary 533 (5th ed. 2011) (“[p]hysical abuse of a house-

hold member, especially one’s spouse or domestic partner”).

The same goes for definitions of “domestic violence”

found in other federal statutes.7 Indeed, Congress defined

“crime of domestic violence” as a “crime of violence” in

another section of the same bill that enacted §921(a)

(33)(A)(ii). See §350(a), 110 Stat. 3009–639, codified at

8 U. S. C. §1227(a)(2)(E)(i).

The Court ignores these authorities and instead bases

its definition on an amicus brief filed by the National

Network to End Domestic Violence and other private

——————

with the Court’s nonviolent interpretation of that phrase. See Black’s

Law Dictionary 656 (7th ed. 1999) (“[f]orce consisting in a physical act,

esp. a violent act directed against a robbery victim”); id., at 1147 (6th

ed. 1990) (“[f]orce applied to the body; actual violence”).

7 See, e.g., 18 U. S. C. §2261(a)(1) (defining as “[i]nterstate domestic

violence” certain “crime[s] of violence”); §3561(b) (“The term ‘domestic

violence crime’ means a crime of violence . . . in which the victim or

intended victim is the [defendant’s] spouse” or other qualifying rela-

tion); 25 U. S. C. A. §1304(a)(2) (“The term ‘domestic violence’ means

violence committed by a current or former spouse or” other qualifying

relation); 42 U. S. C. A. §13925(a)(8) (Sept. 2013 Supp.) (“The term

‘domestic violence’ includes felony or misdemeanor crimes of violence

committed by a current or former spouse” or other qualifying relation).

Cite as: 572 U. S. ____ (2014) 9

Opinion of SCALIA, J.

organizations,8 and two publications issued by the De-

partment of Justice’s Office on Violence Against Women.

The amicus brief provides a series of definitions—drawn

from law-review articles, foreign-government bureaus, and

similar sources—that include such a wide range of nonvio-

lent and even nonphysical conduct that they cannot possi-

bly be relevant to the meaning of a statute requiring

“physical force,” or to the legal meaning of “domestic vio-

lence” (as opposed to the meaning desired by private and

governmental advocacy groups). For example, amici’s

definitions describe as “domestic violence” acts that “hu-

miliate, isolate, frighten, . . . [and] blame . . . someone”;

“acts of omission”; “excessive monitoring of a woman’s

behavior, repeated accusations of infidelity, and control-

ling with whom she has contact.” Brief for National

Network to End Domestic Violence et al. as Amici Curiae

5–8, and nn. 7, 11. The offerings of the Department

of Justice’s Office on Violence Against Women are

equally capacious and (to put it mildly) unconventional.

Its publications define “domestic violence” as “a pattern

of abusive behavior . . . used by one partner to gain

or maintain power and control over another,” including

“[u]ndermining an individual’s sense of self-worth,”

“name-calling,” and “damaging one’s relationship with

his or her children.” See, e.g., Domestic Violence, online

at http://www.ovw.usdoj.gov/domviolence.htm (all Internet

materials as visited Mar. 21, 2014, and available in the

Clerk of Court’s case file).9

——————

8 The other organizations on the brief are the National Domestic

Violence Hotline, the Domestic Violence Legal Empowerment and

Appeals Project, Legal Momentum, and innumerable state organiza-

tions against domestic violence.

9 The Court refers in a footnote to two additional social-science defini-

tions, neither of which aids the Court’s cause. See ante, at 7, n. 5. The

first is drawn from a health-care manual that provides “a behavioral

definition of domestic violence . . . rather than a legal definition, since a

10 UNITED STATES v. CASTLEMAN

Opinion of SCALIA, J.

Of course these private organizations and the Depart-

ment of Justice’s (nonprosecuting) Office are entitled to

define “domestic violence” any way they want for their

own purposes—purposes that can include (quite literally)

giving all domestic behavior harmful to women a bad

name. (What is more abhorrent than violence against

women?) But when they (and the Court) impose their all-

embracing definition on the rest of us, they not only

distort the law, they impoverish the language. When

everything is domestic violence, nothing is. Congress will

have to come up with a new word (I cannot imagine what

it would be) to denote actual domestic violence.

Although the Justice Department’s definitions ought to

be deemed unreliable in toto on the basis of their extrava-

gant extensions alone (falsus in uno, falsus in omnibus),

the Court chooses to focus only upon the physical actions

that they include, viz., “[h]itting, slapping, shoving, grab-

bing, pinching, biting, [and] hair pulling.” Ibid. None of

those actions bears any real resemblance to mere offensive

touching, and all of them are capable of causing physical

pain or injury. Cf. Johnson, 559 U. S., at 143 (identifying

“a slap in the face” as conduct that might rise to the level

of violent force). And in any event, the Department of

Justice thankfully receives no deference in our interpreta-

——————

behavioral definition is more comprehensive and more relevant to the

health care setting.” A. Ganley, Understanding Domestic Violence, in

Improving the Health Care Response to Domestic Violence: A Resource

Manual for Health Care Providers 18 (2d ed. 1996) (emphasis added),

online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/

improving_healthcare_manual_1.pdf. Here, of course, we are concerned

with the less comprehensive legal definition. The second definition

referred to in the footnote equates domestic violence with “overt vio-

lence,” which in its least serious form consists of “painful pinching or

squeezing.” M. McCue, Domestic Violence: A Reference Handbook 6

(1995) (emphasis added). That meaning is consistent with Johnson’s

definition of “physical force,” but it plainly does not include harmless

offensive touching.

Cite as: 572 U. S. ____ (2014) 11

Opinion of SCALIA, J.

tion of the criminal laws whose claimed violation the

Department of Justice prosecutes. See Gonzales v. Ore-

gon, 546 U. S. 243, 264 (2006) (citing Crandon v. United

States, 494 U. S. 152, 177 (1990) (SCALIA, J., concurring in

judgment)). The same ought to be said of advocacy organ-

izations, such as amici, that (unlike dictionary publishers)

have a vested interest in expanding the definition of “do-

mestic violence” in order to broaden the base of individuals

eligible for support services.10

* * *

This is a straightforward statutory-interpretation case

that the parties and the Court have needlessly complicated.

Precedent, text, and common sense all dictate that the

term “physical force,” when used to define a “misdemeanor

crime of domestic violence,” requires force capable of caus-

ing physical pain or bodily injury.

——————

10 See, e.g., National Network to End Domestic Violence, Reauthorize

The Family Violence Prevention and Services Act 1 (Sept. 22, 2010)

(advocating the expansion of a program assisting victims of domestic

violence to include victims of “dating violence” and thereby “ensure that

all victims in danger can access services”), online at http://nnedv.org/

downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.

Cite as: 572 U. S. ____ (2014) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–1371

_________________

UNITED STATES, PETITIONER v. JAMES ALVIN

CASTLEMAN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 26, 2014]

JUSTICE ALITO, with whom JUSTICE THOMAS joins,

concurring in the judgment.

The decision in this case turns on the meaning of the

phrase “has, as an element, the use . . . of physical force.”

18 U. S. C. §921(a)(33)(A)(ii). In Johnson v. United States,

559 U. S. 133 (2010), the Court interpreted the very same

language and held that “physical force” means “violent

force.” Id., at 140. I disagreed and concluded that the

phrase incorporated the well-established meaning of

“force” under the common law of battery, which did not

require violent force. See id., at 146 (dissenting opinion).

The Court of Appeals in the present case understand-

ably followed the reasoning of Johnson, but now this Court

holds that Johnson actually dictates that the identical

statutory language be interpreted in exactly the same way

that the Johnson majority rejected. See ante, at 5.

In my view, the meaning of the contested statutory

language is the same now as it was four years ago in

Johnson, and therefore, for the reasons set out in my

Johnson dissent, I would not extend the reasoning of

Johnson to the question presented here, on which the

Johnson Court specifically reserved judgment. 559 U. S.,

at 143–144.