Most states consider reckless domestic violence a crime.

Photographer: Joe Raedle/Getty Images

What Being Reckless Means to Today's Courts

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is it domestic violence if you didn’t mean to hurt your partner but recklessly did so anyway? Ordinarily, the U.S. Supreme Court wouldn’t weigh in on such a question, because the misdemeanor crime of domestic violence is determined state-by-state, not by federal law. But Monday the justices heard arguments on exactly that question, in a case involving a federal law that prohibits people convicted of domestic violence from having guns.

The argument has already made headlines because Justice Clarence Thomas broke a 10-year silence to ask whether any other laws suspend constitutional rights for misdemeanor convictions. Thomas may be contemplating a gun-rights opinion of his own in the case. But for the other justices, it’s a case about statutory interpretation. Behind the technicalities lies a rather profound question about what criminal law is meant to achieve.

It’s a crime in 34 states plus the District of Columbia to commit domestic violence not only intentionally but also recklessly. One of them is Maine, the state from which the two cases before the court originated. Its law says you’re guilty of domestic assault if you “intentionally, knowingly or recklessly cause bodily injury or offensive physical contact” to a member of your family or household.

The difference between “intentional” or “knowing” and “reckless” lies in the jury’s determination of the criminal’s state of mind. Typically, criminal intent -- what television lawyers like to call “mens rea” -- exists where the criminal knowingly performs a prohibited act.

Recklessness is something a little different. A person acts recklessly if he or she creates a serious risk of harm to someone else while consciously disregarding the risk.

The idea that recklessness can be the basis for a crime is a relatively modern one. In the old days of the common law, it was often thought that criminal punishment should be reserved for knowing and intentional actions. Behind this was a moral intuition, possibly derived from religion, about punishing people who meant to do something bad. The test was something like whether a person had consciousness of wrong; by definition, someone acting recklessly is willfully blind to the harm he or she may cause.

The common law was prepared to hold you civilly liable for acting recklessly, which meant you had to pay damages. But criminal law, which brought jeopardy of life or limb, was reserved for intentionally wrongful acts.

As modern ideas about probability and risk began to take hold, the moral intuition about consciousness of wrong began to give way. Our new moral intuition runs something like this: If I’ve consciously or willfully blinded myself to the likely consequences of my actions, why should that give me a free pass from criminal punishment? After all, the consequences for the injured person are just as bad as they’d have been if I intentionally harmed her. And if I didn’t know what I was doing, I certainly should’ve known.

For a state like Maine to criminalize reckless domestic assault means that it accepts this broader modern notion of criminal responsibility. Such state judgments aren’t subject to federal review. So why’s the Supreme Court involved?

The answer is that a federal gun law, 18 U.S.C. Section 922(g)(9), makes it a crime to possess a weapon if you’ve “been convicted in any court of a misdemeanor crime of domestic violence.” That puts the issue before the federal courts.

What makes the case complicated is that another provision of the same law, Section 921(a)(33)(A), defines such a crime is one that “has, as an element, the use or attempted use of physical force.” That in turn requires the courts to ask whether a crime of recklessness counts as a “use” of physical force. Maybe the word “use” harks back to the old common-law notion of an intentional act -- or maybe it’s flexible enough to accommodate the modern idea.

The U.S. Court of Appeals for the 1st Circuit observed that the federal law was aimed to cover even “seemingly minor acts” of domestic violence. With that vision of the federal statute’s purpose in mind, the court held that a conviction for recklessness under the Maine statute would count as a use of force under the federal gun law.

In 2014, the Supreme Court decided a very similar case in favor of the more-inclusive reading of the federal law. There, the emphasis was on what counts as “force,” rather than what counts as “use.” The court thought that the context of domestic violence helped prove that “force” under the statute could include offensive touching.

Probably the court will reach a similar conclusion this time -- especially because if it didn’t, then people convicted of misdemeanor domestic violence in states with laws like Maine’s wouldn’t be federally barred from possessing guns.

If it rules that way, the court will be embracing the modern notion of moral culpability for recklessness. In the context of domestic violence, it’s easy to conclude that this is the right way for the court to go.

But the holding may eventually have broader consequences for the interpretation of other federal laws. So it’s worth pausing to ask yourself: Do you think the state should be able to criminalize recklessness? If your answer is yes, then you can rest easy. If it’s no, you might want to think about writing your representatives in Congress. The courts probably aren’t going to do the job for you.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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