Split Widened: Is Simple Battery a Crime of Physical Force?

Per United States v. Hays, 2008 WL 2108079 (10th Cir. May 20, 2008)

Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.

The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.

Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation