Assault in the Fourth Degree No Longer Disqualifies Individuals from Firearms Possession

Due to a U.S. Supreme Court decision in 2013, Descamps v. United States, a Washington State conviction for Assault in the Fourth Degree no longer disqualifies individuals from possessing firearms.

A federal statute, Title 18 of the United States Code, Section 922(g)(9), prohibits individuals convicted of any misdemeanor crime of domestic violence from possessing firearms.

Before Descamps, the law was unclear about whether the Washington State statute for Assault in the Fourth Degree triggered the prohibition for a misdemeanor crime of domestic violence. After Descamps, federal law enforcement stopped enforcing section 922(g)(9) against persons convicted of Assault in the Fourth Degree in Washington State.

Under the analysis clarified in Descamps, a state conviction cannot bar federal firearms possession if the state statute is not a “categorical match” to the similar federal statute. A state statute cannot be a categorical match if it does not have the same essential elements as the federal statute.

Revised Code of Washington Section 9.41.040(2)(a)(i) defines Assault in the Fourth Degree as an assault that is not first, second, or third-degree assault. The RCW does not define “assault.”

Under the federal statute, particularly Section 921(a)(33)(A) of USC Title 18, a crime of “misdemeanor domestic violence” is defined as a misdemeanor that has as an element the use of physical force or threatened use of a deadly weapon.

Since RCW 9.41.040(2)(a)(i) does not require the use of force or threatened use of a deadly weapon, it is not a categorical match to the federal misdemeanor crime of domestic violence. Thus, a conviction under the Washington statute for Assault in the Fourth Degree cannot prohibit firearms possession under the federal law.

The same does not go for Washington law, which still prohibits a person convicted of Assault in the Fourth Degree from possessing firearms. The Descamps decision changed federal law in a way that benefits hunters and target shooters convicted in Washington of Assault in the Fourth Degree, but for those who, like most clients of the Marshall Defense Firm, also live in Washington, one barrier remains.