In United States v. DeFrance, --- F.4th ---, No. 23-2409 (9th Cir. 2024), the Court reversed Michael Blake DeFrance’s conviction for violating 18 U.S.C. § 922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence,” vacated his sentence, and remanded.
We address whether a conviction for partner or family member assault (PFMA) under Montana Code Annotated section 45-5-206(1)(a) qualifies as a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. § 922(g)(9). Because Montana’s PFMA statute can be violated by inflicting emotional rather than physical injury, we conclude that it does not “ha[ve], as an element, the use or attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). Accordingly, a conviction for violating this statute does not qualify as a “misdemeanor crime of domestic violence,” and Appellant’s § 922(g)(9) conviction must be reversed.Here, our conclusion that section 45-5- 206(1)(a)’s overbreadth is evident from its text considers the statute’s language as well as Montana case law. Because Montana’s courts have the final say in construing Montana assault statutes, the similarities between the words of the Tennessee and Montana statutes do not foreclose our conclusion that the Montana statute is materially broader. Indeed, as interpreted by Castro, Montana case law compels the conclusion that the use of physical force is not an element of 45-5-206(1)(a), because the statute may be violated by inflicting only emotional injury.
Next, in United States v. In, --- F.4th ---, No. 23-2917 (9th Cir. 2024), the Court reversed the district court’s order granting Larry Seng In’s motion to suppress a gun found in his car during a traffic stop, and remanded for trial.
Larry Seng In (“In”) was charged in a federal indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) after a gun was found in his car during a traffic stop. In moved to suppress the gun in district court, contending that it was obtained as a result of an unlawful de facto arrest. In did not challenge the officers’ initial traffic stop as an unlawful Terry stop. Instead, In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe that he was prohibited from possessing the gun.The district court rejected the magistrate judge’s recommendation and granted In’s motion to suppress, holding that the gun was obtained as a result of an unlawful de facto arrest without probable cause. The United States (“the Government”) moved for reconsideration, and the district court denied the motion. The Government appealed the district court’s order granting In’s suppression motion, and we now must decide whether the traffic stop became a de facto arrest. We have jurisdiction under 18 U.S.C. § 3731. We hold that the traffic stop did not turn into a de facto arrest, and we reverse the district court.In this case, the officers’ decision to handcuff In made the traffic stop more intrusive than a typical Terry stop, but the use of handcuffs was reasonable under the circumstances and did not convert the stop into an arrest.Because the officers were patrolling on bicycles, they could not place In inside a patrol car while conducting their investigation. If the officers had not handcuffed In, they would have had to rely on their ability to physically overpower In if he attempted to reach for the gun that was visible and loose on the floor of the backseat of the car. Although In did not actually reach for the exposed gun, the question is whether officers had a sufficient basis to fear for their safety to warrant the intrusiveness of the actions taken. Considering the totality of the circumstances, we hold that the officers had a sufficient and reasonable basis to fear for their safety, justifying their decision to handcuff In so that their safety was assured during their investigation. The officers had good reason to handcuff In to prevent him from being able to access the unsecured gun on the floor of the backseat. The officers were eliminating the possibility that In could gain access to the unsecured gun. That conduct properly protected both the officers and the general public. And this is true even though Nevada is an open carry state. See Nev. Const. art. I, § 11. Because the officers’ conduct was reasonable under the circumstances, the Terry stop did not escalate into a de facto arrest without probable cause.
