Scalise v. Davis
312 Neb. 518
Neb.2022Background:
- In 2018 Scalise was arrested for strangulation but pled guilty (per amended complaint) to third-degree assault under Neb. Rev. Stat. § 28-310(1) and received probation; he completed probation in 2020.
- Third-degree assault under § 28-310(1) criminalizes either (a) intentionally/knowingly/recklessly causing bodily injury or (b) threatening another in a menacing manner.
- After probation, Scalise attempted to buy a handgun; the Sarpy County Sheriff denied a handgun certificate under Neb. Rev. Stat. § 69-2404, citing federal prohibition in 18 U.S.C. § 922(g)(9) for persons convicted of a "misdemeanor crime of domestic violence."
- Scalise appealed to county court (lost) and the district court on appeal (lost); evidence in the record (incident report and victim/witness statement) indicated Scalise and the victim had a long-term dating relationship with a period of cohabitation.
- The courts applied federal precedent on the definitions and approaches for determining whether a prior conviction qualifies as a misdemeanor crime of domestic violence, concluding the conviction met the force element and the relationship requirement.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scalise's § 28-310 conviction qualifies as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A) and thus triggers the § 922(g)(9) firearm ban | Scalise: he was never convicted of a domestic-violence offense; no domestic-assault statute (§ 28-323) conviction or on-the-record finding of a domestic relationship | Sheriff: § 28-310 includes a force element; record (incident report and victim statement) shows a qualifying domestic relationship; Hayes/Castleman/Voisine support inquiry into relationship and force | Court affirmed: conviction qualifies — used circumstance-specific inquiry for the relationship and modified categorical analysis for the force element; record shows dating/cohabitation. |
| Whether § 28-310 is divisible (so modified categorical approach applies) | Scalise: implied challenge that his conviction is not a domestic-violence predicate | Sheriff: § 28-310 has alternative elements (bodily injury vs. menacing threat), so it is divisible | Court: § 28-310 is divisible; modified categorical approach applies to identify which statutory alternative formed the basis of the plea. |
| Whether the sentencing court failed to give the notice required by Neb. Rev. Stat. § 29-2291(1) about federal firearm prohibition | Scalise: claims he was not notified that conviction could bar firearm possession | Sheriff: record shows the required advisement was given | Court: record demonstrates the requisite advisement; assignment without merit. |
| Constitutional claims and unbriefed element argument (Second Amendment, double jeopardy, due process; trial court's determination of mental state) | Scalise: raised multiple constitutional challenges and asserted trial court did not determine whether conviction required knowing/reckless causation | Sheriff: procedural default — issues not raised or argued below/in brief | Court: declined to address constitutional claims not presented below and refused to address the unbriefed force-element argument. |
Key Cases Cited
- United States v. Hayes, 555 U.S. 415 (U.S. 2009) (domestic relationship need not be an element of the predicate offense)
- United States v. Castleman, 572 U.S. 157 (U.S. 2014) (causing bodily injury necessarily involves use of physical force)
- Voisine v. United States, 579 U.S. 686 (U.S. 2016) (reckless assaults qualify as use of physical force)
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (circumstance-specific approach permits inquiry into underlying conduct where statute focuses on conduct)
- Descamps v. United States, 570 U.S. 254 (U.S. 2013) (explains when modified categorical approach applies to divisible statutes)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limits the documents courts may consult under the modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (development of the categorical approach)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (applying categorical approach in immigration context)