Wyo. "Simple Assault, Battery" Conviction Not a Predicate Misdemeanor Domestic Violence Offense

United States v. Hays, ___ F.3d ___, No. 07-8039 (10th Cir. May 20, 2008)

Conviction under Wyoming “simple assault, battery” misdemeanor statute is not a misdemeanor crime of domestic violence within the meaning of 18 USC Secs. 922(g)(9) and 924(a)(2), possession of a firearm by a person convicted of misdemeanor domestic violence. The federal offense requires the misdemeanor include the element of the use or attempted use of physical force or the threatened use of a deadly weapon, but the Wyoming statute is broader–includes touching in an insolent manner–under the Taylor categorical approach. The 10th noted that the state presentence report is NOT a document the court can look to under Shepard to determine what Defendant actually was guilty of under the Wyoming statute. Construing the statute, the court finds that mere touching, while it requires some physical force, does not necessarily constitute physical force within the meaning of the federal criminal statute when it is done rudely, insolently; or angrily. Indictment dismissed. Ebel dissents and would find that the touching constitutes physical force.