Written by 
Calling their own decision “absurd,” a three-judge panel on the U.S. Ninth Circuit Court of Appeals said Montana’s more comprehensive laws protecting victims of domestic violence create a federal loophole that has allowed a man convicted of domestic violence and connected to one of the state’s highest-profile missing-persons cases to own a handgun.
The case originated from a decision by a Montana federal judge in which Michael B. DeFrance was convicted of possessing a gun after having been convicted of domestic violence. The case has also piqued public interest because DeFrance was the last person to have seen Jermain Charlo alive more than six years ago. Charlo, a member of the Confederated Salish and Kootenai tribes, has been missing since she was last seen in Missoula on June 16, 2018.
DeFrance pleaded guilty to assaulting Charlo, his girlfriend at the time, in 2013, which resulted in a misdemeanor. In 2018, after Charlo’s disappearance, DeFrance was was found to have three firearms and was charged. It is those charges that have been overturned.
In their decision, the judges said that because Montana’s state laws include threats of violence — not just acts of violence — committed against a domestic partner or family member, the Ninth Circuit’s judicial hands were tied: The mismatch between the details of state and federal laws creates a loophole.
State law differs slightly from federal law, and DeFrance’s conviction in the state doesn’t closely enough parallel domestic law on the federal books, so therefore his Second Amendment rights to possess a handgun cannot be stripped from him.
The judges also said the case means some other domestic abusers convicted of misdemeanors in Montana won’t be subject to the federal prohibition on firearms possession, even though they don’t think it’s what Congress intended.
Montana’s stronger laws
The case the Ninth Circuit heard homed in on the differences between Montana law and federal law. Because appellate courts are forced to use a concept called the “categorical approach” when comparing the laws, the differences mean the laws don’t match closely enough to trigger the revocation of DeFrance’s right to own a gun.
A professor of constitutional law at the University of Montana’s law school said this reliance on the “categorical approach” often leads to results in which the same crime in a different state would lead to a different conclusion, or the “absurd” result that appellate judges note in the DeFrance decision.
All states have laws on the books prohibiting violence, especially domestic violence, often defined as an attack against a person who lives with another, for example, a partner or family member. Montana law has even broader protections for victims of domestic violence.
Montana law goes one step further and allows that just threats of violence made toward another person could be sufficient for an alleged perpetrator to be prosecuted for domestic violence.
“Ironically, the result in this case would be different if Montana’s laws were less protective of domestic violence victims,” the opinion states.
Because Montana’s law includes a wider variety of crimes to fit under the definition of “domestic violence,” the court concluded that it was not equivalent to federal law, and therefore could not be applied to DeFrance.
University of Montana Law School professor Constance Van Kley said it’s unlikely that a Montana prosecutor would take a case to court with just verbal threats, and no threats of physical violence, but because state law opens that possibility, there’s a mismatch.
“Neither DeFrance nor the government could point to a single case in which Montana applied (the domestic violence statute) in the absence of the use of physical force,” the decision said.
The U.S. Supreme Court has said that federal courts, in determining a crime of violence, must employ the “categorical approach.” Unlike other appellate court reviews, which consider the specifics of the case and the facts, the categorical approach says that courts must only consider whether minimum elements for conviction in a particular state match the federal definition. Since Montana allows for just threats of violence, without actual physical acts of violence, that minimum falls below the federal threshold. Therefore, the Montana statute doesn’t meet the federal minimum, under the application of the categorical approach, and so DeFrance’s right to possess a firearm must not be taken away.
Practically speaking, Van Kley said this means that a person committing an identical crime in a different state that has fewer protections for victims of domestic violence could be found guilty of possessing a handgun, but DeFrance, in Montana, could still own a firearm in Montana.
It’s also why the three different judges who sat on the case at the Ninth all seemed to disagree with their own unanimous conclusion.
The categorical approach has been criticized because it hamstrings appellate judges to look only at the law, not any of the circumstances of the case. An article by John Elwood of the Supreme Court blog said, “The defendant’s actual conduct is irrelevant.”
The three-judge panel said at the outset of its 25-page opinion that it was bound to ignore the details of France’s conviction.
“It seems to me that Congress never remotely intended the counter-intuitive results that the categorical approach has engendered,” said one of the three appellate judges, Jed S. Rakoff. “Although the Supreme Court has thus far declined the opportunity to reconsider whether Congress really intended the categorical approach, I join the growing number of lower-court judges and Supreme Court justices who have called into question the propriety of this approach.”
Supporters of the approach argue that the “categorical approach” is helpful in certain cases where implicit bias against marginalized groups occur, for example in sentencing where a person convicted of a similar crime is sentenced to a different punishment.
In an example of the judges feeling backed into the corner by the law and the categorical application, Judge Morgan B. Christen said: “There is little doubt that when Congress enacted (firearm and domestic violence law), it intended to keep firearms out of the hands of misdemeanor domestic abusers. Yet after today’s decision, misdemeanor domestic abusers convicted under (Montana law) will not be subject to the federal prohibition on possession of firearms. This cannot be what Congress intended, but I conclude that it is the result dictated by faithful application of controlling precedent.”
The case was decided by a federal district court Judge Rakoff, appointed by President Bill Clinton; and appellate judges Jennifer Sung, appointed by President Joe Biden, and Christen who was appointed by President Barack Obama.