b'When a Prior Conviction Qualifies as a\n\xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\nA \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 922(g)(9) is limited to those offenses\nof which the use or attempted use of physical force or the threatened use of a deadly weapon is an\nelement\xe2\x80\x94that is, a factual predicate specified by law and required to support a conviction.\nWhere the legal definition of the crime at issue contains a disjunctive element (which requires proof of\nonly one of multiple specified factual predicates), only one subpart of which requires the use or\nattempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the factfinder found that the subpart meeting the\n\xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition had been proved (or whether the defendant\npleaded guilty to that subpart). The answer to that question may be gleaned from the record of\nconviction or the supporting record of proceedings in the court of conviction. Police reports cannot\nanswer that question.\nThe above interpretations also govern background checks by the Federal Bureau of Investigation for\nfirearms transfers under the National Instant Background Check System, but additional materials,\nincluding police reports, may be relied upon by the NICS for certain limited purposes.\n\nMay 17, 2007\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nBUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES\nFederal law prohibits persons who have been \xe2\x80\x9cconvicted in any court of a\nmisdemeanor crime of domestic violence\xe2\x80\x9d from possessing or receiving a firearm\nin certain circumstances. 18 U.S.C. \xc2\xa7 922(g)(9) (2000). The law defines a\n\xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d to include only \xe2\x80\x9can offense\xe2\x80\x9d that \xe2\x80\x9chas,\nas an element, the use or attempted use of physical force, or the threatened use of a\ndeadly weapon.\xe2\x80\x9d Id. \xc2\xa7 921(a)(33)(A)(ii). The Bureau of Alcohol, Tobacco,\nFirearms, and Explosives (\xe2\x80\x9cATF\xe2\x80\x9d) enforces this prohibition by, among other\nthings, denying applications for federal firearms licenses and seizing firearms for\nforfeiture. See id. \xc2\xa7\xc2\xa7 923(d)(1)(B) & 924(d). You have asked us to address when a\nprior conviction qualifies as a \xe2\x80\x9cmisdemeanor crime of domestic violence.\xe2\x80\x9d\nWe conclude, first, that a \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d is limited\nto those offenses of which the use or attempted use of physical force or the\nthreatened use of a deadly weapon is an element\xe2\x80\x94that is, a factual predicate\nspecified by law and required to support a conviction. Second, where the legal\ndefinition of the crime at issue contains a disjunctive element (which requires\nproof of only one of multiple specified factual predicates), only one subpart of\nwhich requires the use or attempted use of physical force or the threatened use of a\ndeadly weapon, application of the prohibition in section 922(g)(9) will turn on\nwhether the factfinder found that the subpart meeting the \xe2\x80\x9cmisdemeanor crime of\ndomestic violence\xe2\x80\x9d definition had been proved (or whether the defendant pleaded\nguilty to that subpart). The answer to that question may be gleaned from the record\nof conviction or the supporting record of proceedings in the court of conviction.\n\n123\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nPolice reports cannot answer that question. Finally, the above interpretations also\ngovern background checks by the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) for\nfirearms transfers under the National Instant Background Check System (\xe2\x80\x9cNICS\xe2\x80\x9d),\nbut additional materials, including police reports, may be relied upon by the NICS\nfor certain limited purposes.\nI.\nThe \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d firearms prohibition is the\nproduct of two provisions in title 18 of the U.S. Code. Section 922(g) provides:\nIt shall be unlawful for any person\xe2\x80\x94\n...\n(9) who has been convicted in any court of a misdemeanor crime\nof domestic violence, to ship or transport in interstate or foreign\ncommerce, or possess in or affecting commerce, any firearm or\nammunition; or to receive any firearm or ammunition which has\nbeen shipped or transported in interstate or foreign commerce.\n(Emphasis added.) Section 921(a)(33)(A) in turn defines a \xe2\x80\x9cmisdemeanor crime of\ndomestic violence\xe2\x80\x9d as:\nan offense that\xe2\x80\x94\n(i) is a misdemeanor under Federal or State law; and\n(ii) has, as an element, the use or attempted use of physical force,\nor the threatened use of a deadly weapon, committed by a current\nor former spouse, parent, or guardian of the victim, by a person\nwith whom the victim shares a child in common, by a person who\nis cohabiting with or has cohabited with the victim as a spouse,\nparent, or guardian, or by a person similarly situated to a spouse,\nparent, or guardian of the victim.\n(Emphases added.)\nPutting these two provisions together, the prohibition applies, as relevant here,\nonly to a person who (1) has been \xe2\x80\x9cconvicted\xe2\x80\x9d in court, (2) of an \xe2\x80\x9coffense,\xe2\x80\x9d (3)\nthat \xe2\x80\x9chas, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.\xe2\x80\x9d 1 The application of this prohibition, then, depends\nupon the \xe2\x80\x9celement[s]\xe2\x80\x9d of the particular \xe2\x80\x9coffense\xe2\x80\x9d of which the person was\n1\nYou have not asked about, and we do not address, the domestic-relationship requirement or the\nrequirement that the offense be a misdemeanor.\n\n124\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\n\xe2\x80\x9cconvicted.\xe2\x80\x9d That is, the prohibition turns on the legal definition of the predicate\noffense of conviction, not on the actual conduct that may have led to the conviction for that offense. One must determine what the convicting court found, not\nwhat the defendant did.\nThis conclusion follows from a proper understanding of the key statutory term\n\xe2\x80\x9celement.\xe2\x80\x9d Elements are the factual predicates of an offense that are specified by\nlaw and must be proved to secure a conviction. See, e.g., Patterson v. New York,\n432 U.S. 197, 210 (1970); Richardson v. United States, 526 U.S. 813, 817 (1999);\nsee also Black\xe2\x80\x99s Law Dictionary 538 (7th ed. 1999) (defining \xe2\x80\x9celement\xe2\x80\x9d as \xe2\x80\x9c[a]\nconstituent part of a claim that must be proved for the claim to succeed\xe2\x80\x9d). If\nconviction of a given offense can be secured without proof of a certain fact, then\nthat fact is not an element of that offense. As the en banc Fifth Circuit has\nexplained: \xe2\x80\x9cIf any set of facts would support a conviction without proof of that\ncomponent, then the component most decidedly is not an element\xe2\x80\x94implicit or\nexplicit\xe2\x80\x94of the crime.\xe2\x80\x9d United States v. Vargas-Duran, 356 F.3d 598, 605 (2004);\nsee also Singh v. Ashcroft, 386 F.3d 1228, 1231 (9th Cir. 2004) (\xe2\x80\x9cAn element of a\ncrime is a constituent part of the offense which must be proved by the prosecution\nin every case to sustain a conviction under a given statute.\xe2\x80\x9d) (internal quotation\nmarks omitted); United States v. Fulford, 267 F.3d 1241, 1250 (11th Cir. 2001)\n(\xe2\x80\x9cAt common law, the word \xe2\x80\x98element\xe2\x80\x99 refers to a constituent part[] of a crime\nwhich must be proved by the prosecution to sustain a conviction.\xe2\x80\x9d) (internal\nquotation marks omitted); United States v. Jones, 235 F.3d 342, 347 (7th Cir.\n2000) (holding that an assault and battery conviction did not qualify as a \xe2\x80\x9ccrime of\nviolence\xe2\x80\x9d under the Sentencing Guidelines because \xe2\x80\x9cactual, attempted, or threatened physical force is not a necessary element of the offense\xe2\x80\x9d).\nIt is well established that language turning on the \xe2\x80\x9celements\xe2\x80\x9d of a predicate\n\xe2\x80\x9coffense\xe2\x80\x9d of \xe2\x80\x9cconvict[ion]\xe2\x80\x9d requires considering the legal definition of the offense\nof conviction. The Supreme Court, addressing a statute that, much like the\n\xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition, turns on whether a person\nhas been convicted of a predicate \xe2\x80\x9coffense that has as an element the use, attempted use, or threatened use of physical force,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 16(a) (2000) (emphases\nadded), has recognized that such language \xe2\x80\x9crequires us to look to the elements . . .\nof the offense of conviction, rather than to the particular facts relating to petitioner\xe2\x80\x99s crime.\xe2\x80\x9d Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). The Eighth Circuit earlier\ntook the same view in addressing the prohibition at issue here: \xe2\x80\x9cWhen statutory\nlanguage dictates that predicate offenses contain enumerated elements, we must\nlook only to the predicate offense rather than to the defendant\xe2\x80\x99s underlying acts to\ndetermine whether the required elements are present.\xe2\x80\x9d United States v. Smith, 171\nF.3d 617, 620 (8th Cir. 1999). See also United States v. Griffith, 455 F.3d 1339,\n1341 (11th Cir. 2006) (application of section 921(a)(33)(A)(ii) \xe2\x80\x9cdoes not turn on\nthe actual conduct underlying the conviction but on the elements of the state\ncrime\xe2\x80\x9d); Szucz-Toldy v. Gonzales, 400 F.3d 978, 982 (7th Cir. 2005) (per curiam)\n(case involving statute at issue in Leocal, citing Smith, among other cases, for\n\n125\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nproposition that \xe2\x80\x9cthe particular method by which [the defendant] violated the . . .\nstatute has no bearing whatever on whether one of the elements of that statute is\nthe use or threatened use of force\xe2\x80\x9d); United States v. Shelton, 325 F.3d 553, 558\nn.5 (5th Cir. 2003) (\xe2\x80\x9c[W]e look to the elements set forth in the statute\xe2\x80\x94not the\nactual conduct to determine whether the offense qualifies as a crime of domestic\nviolence.\xe2\x80\x9d). Because an \xe2\x80\x9celement\xe2\x80\x9d is a part of an offense specified by law, the\nexistence of the required element is determined by \xe2\x80\x9ca legal inquiry as opposed to a\nfactual inquiry.\xe2\x80\x9d Fulford, 267 F.3d at 1250 (internal quotation marks omitted).\nThis inquiry involves, for statutory offenses, simply determining \xe2\x80\x9cthe elements set\nforth in the statute.\xe2\x80\x9d Shelton, 325 F.3d at 558 n.5 (emphasis added). For a common\nlaw crime, or a statutory crime stated in general terms that draw on the common\nlaw (for example, \xe2\x80\x9cbattery\xe2\x80\x9d), the elements will be specified in the jurisdiction\xe2\x80\x99s\ncase law, but will nevertheless still consist only of the predicate facts defined by\nlaw that must be proved in all cases to obtain a conviction. See, e.g., United States\nv. Melton, 344 F.3d 1021, 1026 (9th Cir. 2003) (\xe2\x80\x9cWhere, as here, the state crime is\ndefined by specific and identifiable common law elements, rather than by a\nspecific statute, the common law definition of a crime serves as a functional\nequivalent of a statutory definition.\xe2\x80\x9d); State v. Coomes, 102 N.W.2d 454, 457\n(Neb. 1960) (noting that state has no common law crimes but does \xe2\x80\x9cresort to\ncommon-law definitions where general terms are used to designate crime\xe2\x80\x9d)\n(internal quotation marks omitted); cf. Taylor v. United States, 495 U.S. 575, 598\n(1990) (holding that Congress, in using the word \xe2\x80\x9cburglary\xe2\x80\x9d in a statute, meant\n\xe2\x80\x9cthe generic sense in which the term is now used in the criminal codes of most\nStates,\xe2\x80\x9d and summarizing the elements). Wherever the authoritative definition may\nbe found, however (whether in a statute or case law), if the offense of conviction\ndid not have, as an element, the use or attempted use of physical force or the\nthreatened use of a deadly weapon, then the section 922(g)(9) prohibition does not\napply, regardless of the actual conduct that may have provided the basis for the\nconviction. (Correspondingly, if such action was an element of the offense of\nconviction, there is no cause to consider whether the actual underlying conduct\nincluded such action.)\nFor example, a general criminal statute that prohibits disturbing the peace\npresumably could be violated by conduct that includes use of force, attempted\nforce, or threatened use of a deadly weapon. But if the legal definition of the\ndisturbing-the-peace offense does not include a requirement that such action be\nproved, then a conviction for that offense is not a conviction for an offense that\nhas an element meeting the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition,\nregardless of whether the defendant actually used force or even whether the\ngovernment proved conduct that included the use of force. The prohibition\ntherefore does not apply in such a case. As the en banc Fifth Circuit explained in a\nsimilar context, if:\n\n126\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\nan indictment charged a defendant with the crime of disturbing the\npeace . . . and also specified that he committed the crime \xe2\x80\x9cby throwing a bottle at the victim\xe2\x80\x99s head,\xe2\x80\x9d . . . the prosecution might be required to prove that the defendant indeed engaged in that charged\nconduct, but throwing a bottle at someone is not an element of the\ndisturbing-the-peace statute. . . . It is, rather, one means of violating\nthe statute.\nUnited States v. Calderon-Pe\xc3\xb1a, 383 F.3d 254, 257 n.4 (5th Cir. 2004); see id. at\n258 (distinguishing \xe2\x80\x9cthe manner and means\xe2\x80\x9d of committing a crime, even if\ncharged in the indictment to satisfy due process, from \xe2\x80\x9can element of the offense\xe2\x80\x9d). Likewise, Nebraska\xe2\x80\x99s disturbing the peace statute provides simply that\n\xe2\x80\x9c[a]ny person who shall intentionally disturb the peace and quiet of any person,\nfamily, or neighborhood commits the offense of disturbing the peace.\xe2\x80\x9d Neb. Rev.\nStat. \xc2\xa7 28-1322 (1977). The statute does not on its face contain elements meeting\nthe requirements of the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d prohibition,\nand state courts have made clear that the statutory language encompasses a wide\nvariety of conduct not limited to violence or the use of force. A person convicted\nunder the Nebraska statute thus \xe2\x80\x9ccould have committed the offense of disturbing\nthe peace without the use of force.\xe2\x80\x9d Kneifl v. United States, No. 8:02CV96, slip\nop. at 16 (D. Neb. Feb. 18, 2003); see also id. at 10 (discussing state court\ninterpretations of state statute). Therefore, a conviction for this offense lacks the\nelement necessary to satisfy the definition in section 921(a)(33)(A)(ii), even if in a\nparticular case conduct involving force happens to form the basis for proving what\nis an element\xe2\x80\x94merely that one has \xe2\x80\x9cdisturb[ed] the peace and quiet\xe2\x80\x9d of another.\nSee also, e.g., Fulford, 267 F.3d at 1250\xe2\x80\x9351 (rejecting sentence enhancement\nunder statute that required \xe2\x80\x9cproof of firearms use as an element of the crime,\xe2\x80\x9d\nwhere prior conviction was for \xe2\x80\x9cassault . . . [w]ith a deadly weapon without intent\nto kill\xe2\x80\x9d\xe2\x80\x94not necessarily assault with a firearm) (internal quotation marks omitted).\nII.\nThe nature of the materials relevant to determining whether a prior conviction\nsatisfies the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition follows from\nthe statutory terms discussed above. In general, determining the \xe2\x80\x9celement[s]\xe2\x80\x9d of\nthe \xe2\x80\x9coffense\xe2\x80\x9d of which a person was \xe2\x80\x9cconvicted\xe2\x80\x9d will depend only on the record of\nconviction and, as discussed above, the law defining the offense of conviction. The\nrecord establishes the offense of which the person was convicted; the law establishes the elements of the offense. Thus, the Seventh Circuit in Szucz-Toldy, after\nfirst determining that the predicate state offense did not include \xe2\x80\x9cas an element\xe2\x80\x9d\nthe facts required by the applicable federal law, concluded that an immigration\njudge \xe2\x80\x9chad no reason to look to the indictment and examine the facts alleged\nthere.\xe2\x80\x9d 400 F.3d at 982. Likewise, the Eleventh Circuit in Fulford, affirming a\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ndistrict court\xe2\x80\x99s refusal to consider the allegations in an information, explained that\n\xe2\x80\x9c[t]he phrase \xe2\x80\x98as an element\xe2\x80\x99 only permits an examination of the statute under\nwhich the defendant was convicted,\xe2\x80\x9d and it is therefore improper to \xe2\x80\x9clook past the\nconviction to the charging document.\xe2\x80\x9d 267 F.3d at 1250, 1251 (internal quotation\nmarks omitted); see also United States v. Martinez-Mata, 393 F.3d 625, 628 (5th\nCir. 2004) (refusing to consider indictment where statute plainly did not contain\nrequisite element). And in Taylor, the Supreme Court recognized that an elementsbased \xe2\x80\x9ccategorical approach\xe2\x80\x9d to prior offenses \xe2\x80\x9cgenerally requires the trial court to\nlook only to the fact of conviction and the statutory definition of the prior offense.\xe2\x80\x9d 495 U.S. at 602; see also id. at 600 (describing \xe2\x80\x9cformal categorical\napproach\xe2\x80\x9d as allowing resort \xe2\x80\x9conly to the statutory definitions of the prior\noffenses\xe2\x80\x9d).\nOne complication arises where the legal definition of a crime can be interpreted\nto contain a \xe2\x80\x9cdisjunctive\xe2\x80\x9d element\xe2\x80\x94that is, an element with subparts, only one of\nwhich must be proved in any particular case\xe2\x80\x94and only the facts specified in some\nor one of the subparts necessarily includes \xe2\x80\x9cthe use or attempted use of physical\nforce, or the threatened use of a deadly weapon\xe2\x80\x9d as required by the definition of\n\xe2\x80\x9cmisdemeanor crime of domestic violence.\xe2\x80\x9d The firearms prohibition immediately\npreceding the prohibition at issue here provides an example of a disjunctive\nelement. It generally makes a firearm shipment, transportation, receipt, or\npossession unlawful for a person:\n(8) who is subject to a court order that\xe2\x80\x94\n(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;\n(B) restrains such person from harassing, stalking, or threatening\nan intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an\nintimate partner in reasonable fear of bodily injury to the partner\nor child; and\n(C)(i) includes a finding that such person represents a credible\nthreat to the physical safety of such intimate partner or child; or\n(ii) by its terms explicitly prohibits the use, attempted use, or\nthreatened use of physical force against such intimate partner\nor child that would reasonably be expected to cause bodily injury.\n18 U.S.C. \xc2\xa7 922(g)(8) (2000). Section 922(g)(8) has three conjunctive subparagraphs\xe2\x80\x94(A), (B), and (C), but the last of these has two clauses. Thus, if subpara-\n\n128\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\ngraphs (A) and (B) \xe2\x80\x9care fulfilled, then by its terms section 922(g)\xe2\x80\x99s firearms\ndisability attaches if either clause (C)(i) or clause (C)(ii) applies.\xe2\x80\x9d United States v.\nEmerson, 270 F.3d 203, 213\xe2\x80\x9314 (5th Cir. 2001). The statute has three rather than\nfour elements, see id. at 214, and the third element, like the others, must be met in\nevery case, yet it may be satisfied in one of two ways. Where the definition of a\ncrime may be of this sort, the first question will be one of legal interpretation: Is\nthe definition properly read to contain a disjunctive element? In Szucz-Toldy, for\nexample, the Seventh Circuit faced a state statute that prohibited \xe2\x80\x9c[m]aking a\ntelephone call, whether or not conversation ensues, with intent to abuse, threaten,\nor harass any person at the called number.\xe2\x80\x9d 400 F.3d at 979 (internal quotation\nmarks omitted). The court looked to this text and to case law interpreting it, and\nrejected the view that the statute was \xe2\x80\x9cdivisible\xe2\x80\x9d such that \xe2\x80\x9cthreaten[ing]\xe2\x80\x9d could be\nan element. See id. at 980\xe2\x80\x9381. It was clear under the statute\xe2\x80\x99s single offense that\n\xe2\x80\x9cto sustain a conviction . . . it is not necessary to prove the use or threatened use of\nphysical force.\xe2\x80\x9d Id. at 981. Thus, the court\xe2\x80\x99s inquiry under a federal statute turning\non the elements of the prior conviction was at an end. See id. at 982; cf. MartinezMata, 393 F.3d at 628\xe2\x80\x9329 (addressing argument that statute had disjunctive\nelements but deciding against government on different grounds); Calderon-Pe\xc3\xb1a,\n383 F.3d at 258 (discussing statutes that \xe2\x80\x9cprovide[ ] a list of alternative methods of\ncommission\xe2\x80\x9d).\nWhere the legal definition of a crime is interpreted to have such a disjunctive\nelement, it may be argued that a conviction for such a crime never could satisfy\nthe \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition in section\n921(a)(33)(A)(ii), because the factual predicate meeting that definition need not be\nfound in every case brought under the statute. Under this approach, there never\nwould be occasion to look beyond the record of conviction and legal definition of\nthe crime of conviction. Cf. Shepard v. United States, 544 U.S. 13, 30 (2005)\n(O\xe2\x80\x99Connor, J., dissenting) (discussing Taylor and explaining that \xe2\x80\x9c[t]he most\nformalistic approach would have been to find the ACCA requirement satisfied\nonly when the statute under which the defendant was convicted was one limited\nto\xe2\x80\x9d an offense containing the requisite elements); Fulford, 267 F.3d at 1250\n(suggesting that it would be improper to look beyond conviction and definition of\noffense if statute had disjunctive element).\nThe language of the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition does\nnot, however, require such a strict approach. The general definition of \xe2\x80\x9celement\xe2\x80\x9d\ndoes not appear to address this situation, and we see no reason to conclude that a\nconviction under a crime that contains a disjunctive element, one subpart of which\ndoes meet section 921(a)(33)(A)(ii)\xe2\x80\x99s definition, could never be a conviction for\nan \xe2\x80\x9coffense\xe2\x80\x9d that contained the required \xe2\x80\x9celement.\xe2\x80\x9d In such a case, the legal\ndefinition of the crime at least has an element that includes within it the possibility\nof the requisite judicial finding. It is true that a court might apply such a law as a\nsingle, general offense in which one element could be proved in multiple ways. (In\nthe example of section 922(g)(8) given above, the court might simply instruct the\n\n129\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\njury that it needed to find subparagraphs (A), (B), and (C) satisfied, without\nrequiring the jury to specify whether it was finding subparagraph (C)(i) or (C)(ii).)\nSuch a conviction would not satisfy the definition of a \xe2\x80\x9cmisdemeanor crime of\ndomestic violence.\xe2\x80\x9d But if, instead, in a particular case the court required the\nfactfinder, in order to convict, to conclude that the subpart of the disjunctive\nelement meeting that definition had been proved (or if it limited a guilty plea in the\nsame way), then it would have applied the law as stating multiple offenses, and the\n\xe2\x80\x9coffense\xe2\x80\x9d of which the defendant was actually \xe2\x80\x9cconvicted\xe2\x80\x9d by that court would\nhave been narrowed such that that subpart became, in application, an \xe2\x80\x9celement\xe2\x80\x9d\nmeeting the definition.\nThe question, then, will be whether the defendant in fact was convicted under a\nspecific subpart, such that the relevant subpart may be deemed an \xe2\x80\x9celement\xe2\x80\x9d of his\n\xe2\x80\x9coffense\xe2\x80\x9d of conviction. But even when this factual question arises, the actual\nconduct of the defendant remains irrelevant, as the ultimate question is the same as\nin the general case: whether the offense of which the person was actually convicted by a court contained an element meeting the required definition. In some cases\nwhere a disjunctive element is involved, the record of conviction will provide\ninformation sufficient to answer that question. See, e.g., Flores v. Ashcroft, 350\nF.3d 666, 770 (7th Cir. 2003) (where battery statute \xe2\x80\x9cseparates into distinct\nsubsections the different ways to commit the offense\xe2\x80\x9d and defendant pleaded\nguilty to the \xe2\x80\x9cversion\xe2\x80\x9d in a particular subsection, there was no need to look beyond\nthe record of conviction). But the record of conviction will not always do so, and\nin such a case other similarly authoritative records of the convicting court will be\nrelevant to the extent\xe2\x80\x94and only to the extent\xe2\x80\x94that they indicate what that court\ndid. Non-judicial documents, such as police reports or other documents supporting\ncharges, will not be relevant in determining whether a defendant actually has been\nconvicted of a specific disjunctive element of an offense.\nOur interpretation finds extensive support in the decisions of courts of appeals\nthat have addressed \xe2\x80\x9cas an element\xe2\x80\x9d language, including one decision doing so in\nthe context of applying the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition,\nand in two decisions of the Supreme Court in a similar context. The en banc Fifth\nCircuit in Calderon-Pe\xc3\xb1a, for example, emphasized that \xe2\x80\x9cfactual material about\nthe method of committing the offense\xe2\x80\x9d\xe2\x80\x94whether \xe2\x80\x9calleged in charging papers\xe2\x80\x9d or\nnot\xe2\x80\x94\xe2\x80\x9cis irrelevant for purposes of\xe2\x80\x9d a statute turning on whether a prior conviction\nhad a certain \xe2\x80\x9celement.\xe2\x80\x9d 383 F.3d at 257. Yet it found the following \xe2\x80\x9cpermissible\xe2\x80\x9d:\nThe sentencing court could look to the indictment or jury instructions\nfor the limited purpose of determining which of a series of disjunctive elements a defendant\xe2\x80\x99s conviction satisfies. Under that approach,\nwhenever a statute provides a list of alternative methods of commission . . . we may look to charging papers to see which of the various\nstatutory alternatives are involved in the particular case.\n\n130\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\nId. at 258 (citation and internal quotation marks omitted); see id. n.7 (\xe2\x80\x9cour\napproach has the virtue of respecting the \xe2\x80\x98as an element\xe2\x80\x99 language of the Guideline.\xe2\x80\x9d). Similarly, the Seventh Circuit has explained that when the statutory\ndefinition of a crime contains a disjunctive provision, \xe2\x80\x9cit is necessary to look\nbehind the statutory definition,\xe2\x80\x9d but \xe2\x80\x9cthe inquiry begins and ends with the\nelements of the crime.\xe2\x80\x9d Flores, 350 F.3d at 670, 671; see Szucz-Toldy, 400 F.3d at\n981 (discussing Flores and emphasizing \xe2\x80\x9cas an element\xe2\x80\x9d language); see also\nUnited States v. Kennedy, 133 F.3d 53, 57\xe2\x80\x9358 (D.C. Cir. 1998) (applying federal\nstatutes turning on the \xe2\x80\x9cnature\xe2\x80\x9d of prior conviction and whether it had certain facts\n\xe2\x80\x9cas an element,\xe2\x80\x9d and consulting indictment to determine whether conviction under\nHobbs Act had been for robbery or extortion; noting that \xe2\x80\x9ca district court may only\nundertake this inquiry when a statute provides for both violent and nonviolent\nmeans of violation\xe2\x80\x9d) (emphasis added). 2\nThe Eighth Circuit in Smith encountered this situation in the context of the\n\xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d firearms prohibition. The defendant\nhad pleaded guilty to the crime of \xe2\x80\x9cassault,\xe2\x80\x9d defined as follows:\nA person commits an assault when, without justification, the person\ndoes any of the following:\n(1) Any act which is intended to cause pain or injury to, or which\nis intended to result in physical contact which will be insulting or\noffensive to another. . . .\n(2) Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or\noffensive, coupled with the apparent ability to execute the act. . . .\nIowa Code \xc2\xa7 708.1. Subsections (1) and (2) of the assault statute together set out a\ndisjunctive element, and only the first subpart meets the section 921(a)(33)(A)(ii)\ndefinition: \xe2\x80\x9c[A] generic assault in Iowa may include, as an element, placing another\nin fear of imminent physical contact. If Smith pleaded guilty to [subsection (2)], then\n\n2\nWe disagree with the Fourth Circuit\xe2\x80\x99s approach in United States v. Kirksey, 138 F.3d 120 (4th Cir.\n1998), as inconsistent with \xe2\x80\x9cas an element\xe2\x80\x9d language and with the Supreme Court case law discussed\nbelow in this part. Unable to \xe2\x80\x9csay categorically that the conduct encompassed in the [elements of the\nMaryland] crime of battery constitutes the use of physical force against the person of another to the\ndegree required to constitute a crime of violence as used\xe2\x80\x9d in the Sentencing Guidelines, the Fourth\nCircuit resolved the question by consulting the charging documents and concluding, \xe2\x80\x9cIn the case before\nus, however, no one disputes that the conduct of Kirksey\xe2\x80\x99s prior convictions was violent.\xe2\x80\x9d Id. at 125.\nThe court conflated the facts of the predicate offense specified by law (that is, the elements) with the\nactual conduct underlying the conviction for that offense. The law in question appears not to have\nincluded a disjunctive element, see id., and thus was like the disturbing the peace example discussed in\nPart I.\n\n131\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nhe was not convicted of an offense that \xe2\x80\x98has, as an element, the use or attempted use\nof force.\xe2\x80\x99\xe2\x80\x9d 171 F.3d at 620 (quoting 18 U.S.C. \xc2\xa7 921(a)(33)(A)(ii)).\nThe court of appeals recognized that it would be proper to look beyond the\nstatute and the record of conviction, but only to determine which of the elements\nof the offense was proved in support of the defendant\xe2\x80\x99s conviction under the\nstatute: \xe2\x80\x9cWe may expand our inquiry . . . to review the charging papers and jury\ninstructions, if applicable, only to determine under which portion of the assault\nstatute Smith was convicted.\xe2\x80\x9d 171 F.3d at 620\xe2\x80\x9321 (emphasis added). The court\nlooked to the charging papers, which, although not specifying a subsection, did\nparrot the language of subsection (1), accusing Smith of \xe2\x80\x9can act which was\nintended to cause pain or injury to another.\xe2\x80\x9d Id. at 621 (internal quotation marks\nomitted). The court thus concluded that the state had charged him under, and he\nhad pleaded guilty to, subsection (1) rather than subsection (2). It therefore found\nthat he \xe2\x80\x9cwas charged, and pleaded guilty to, an offense with an element of physical\nforce within the meaning of\xe2\x80\x9d the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d\ndefinition. 3 Id.; see also United States v. Nobriga, 474 F.3d 561, 564 (9th Cir.\n2006) (holding that conviction under statute containing disjunctive element\nsatisfied definition in section 921(a)(33)(A)(ii) because \xe2\x80\x9cthe charging papers and\nthe judgment of conviction\xe2\x80\x9d made clear that the defendant \xe2\x80\x9cnecessarily pleaded\nguilty\xe2\x80\x9d to the subpart meeting that definition).\nFinally, in the Taylor and Shepard decisions cited above, the Supreme Court\napplied the same approach in a similar context. Both cases addressed a reference to\n\xe2\x80\x9cburglary\xe2\x80\x9d as a predicate conviction in a \xe2\x80\x9cthree strikes\xe2\x80\x9d anti-recidivism provision of\nthe Armed Career Criminal Act (\xe2\x80\x9cACCA\xe2\x80\x9d), 18 U.S.C. \xc2\xa7 924(e)(2)(B)(ii). In Taylor,\nthe Court first concluded that Congress meant \xe2\x80\x9cgeneric burglary\xe2\x80\x9d as commonly\naccepted among the states, and listed the elements of that offense. 495 U.S. at 598.\nThe Court held that a predicate burglary conviction must have been a conviction of a\ncrime (however labeled) having these \xe2\x80\x9cbasic elements,\xe2\x80\x9d id. at 599, as shown by \xe2\x80\x9cthe\nstatutory definitions of the prior offenses,\xe2\x80\x9d not \xe2\x80\x9cthe particular facts underlying those\nconvictions,\xe2\x80\x9d id. at 600. The provision at issue did not use the phrase \xe2\x80\x9cas an\nelement,\xe2\x80\x9d so it is true that Taylor (and Shepard) do not directly apply to a statute\nthat, as here, does use that phrase. See Fulford, 267 F.3d at 1250. But the Court\nnevertheless interpreted section 924(e)(2)(B)(ii) as if it required an elements-based\napproach, including by taking guidance from the appearance of \xe2\x80\x9cas an element\xe2\x80\x9d in\nthe immediately preceding subsection. 495 U.S. at 600\xe2\x80\x9301; see also Shepard, 544\nU.S. at 19 (language in the ACCA \xe2\x80\x9cimposing the categorical approach . . . refers to\n3\n\nIn reaching its factual conclusion, the court of appeals followed the reasoning of its earlier decision in United States v. Taylor, 932 F.2d 703 (8th Cir. 1991), on remand from the Supreme Court. The\nTaylor court recognized that a guilty plea might not be a plea of guilty to the offense charged, but\nconcluded that the plea should be so considered when there was \xe2\x80\x9cno evidence in the record\xe2\x80\x9d that a\nguilty plea \xe2\x80\x9cresulted from a plea bargain.\xe2\x80\x9d Id. at 709. (For another of Taylor\xe2\x80\x99s prior convictions, there\nwas such evidence, from an order granting probation based on the conviction. See id.)\n\n132\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\npredicate offenses in terms not of prior conduct but of prior \xe2\x80\x98convictions\xe2\x80\x99 and the\n\xe2\x80\x98element[s]\xe2\x80\x99 of crimes\xe2\x80\x9d) (quoting Taylor, 495 U.S. at 600\xe2\x80\x9301). Thus, like the Eighth\nCircuit in Smith and other courts addressing provisions with \xe2\x80\x9cas an element\xe2\x80\x9d\nlanguage, we find Taylor (and Shepard) instructive.\nThe relevant question in both Taylor and Shepard was how one could show a\nconviction for \xe2\x80\x9cgeneric burglary\xe2\x80\x9d when state law defined \xe2\x80\x9cburglary\xe2\x80\x9d to include\nactions (such as \xe2\x80\x9cburglary\xe2\x80\x9d of a vehicle rather than a building) that would not\nsatisfy the Court\xe2\x80\x99s generic definition. Taylor, 495 U.S. at 599. In both cases, the\nCourt recognized that it may be necessary to look to materials other than the\nrecord of conviction, but also recognized that the question remains the elements of\nthe offense of conviction\xe2\x80\x94not the defendant\xe2\x80\x99s actual conduct\xe2\x80\x94and thus that the\nuniverse of documents is a narrow one, consisting of records from the convicting\ncourt similar to a record of conviction. See James v. United States, 550 U.S. 192,\n202 (2007) (stating that under Taylor and Shepard the Court \xe2\x80\x9cconsider[s] whether\nthe elements of the offense are of the type that would justify its inclusion\xe2\x80\x9d in\nsection 924(e)(2)(B)(ii) \xe2\x80\x9cwithout inquiring into the specific conduct of th[e]\nparticular offender\xe2\x80\x9d); id. at 217 (Scalia, J., dissenting) (agreeing \xe2\x80\x9cwith this\napproach\xe2\x80\x9d).\nThe Court in Taylor, addressing cases tried to a jury, concluded that the \xe2\x80\x9ccategorical approach\xe2\x80\x9d would allow a court \xe2\x80\x9cto go beyond the mere fact of conviction\nin a narrow range of cases where a jury was actually required to find all the\nelements of generic burglary.\xe2\x80\x9d 495 U.S. at 602 (emphases added). The question is\nwhat \xe2\x80\x9cthe jury necessarily had to find,\xe2\x80\x9d and \xe2\x80\x9cthe indictment or information and\njury instructions\xe2\x80\x9d together might well answer that question. Id. (emphasis added);\nsee id. (holding that prior burglary conviction satisfies ACCA if \xe2\x80\x9cthe charging\npaper and jury instructions actually required the jury to find all the elements of\ngeneric burglary in order to convict the defendant\xe2\x80\x9d) (emphases added); Shepard,\n544 U.S. at 17 (reiterating this language of Taylor); id. at 20 (describing Taylor as\nallowing reference only to \xe2\x80\x9ccharging documents filed in the court of conviction, or\nto recorded judicial acts of that court limiting convictions to the generic category,\xe2\x80\x9d\nsuch as jury instructions).\nIn Shepard, the Court reaffirmed Taylor and considered what would be \xe2\x80\x9cadequate judicial record evidence,\xe2\x80\x9d 544 U.S. at 20, where a prior conviction under a\nstatute defining burglary to include breaking and entering \xe2\x80\x9ca building, ship, vessel\nor vehicle,\xe2\x80\x9d Mass. Gen. Laws Ann. ch. 266, \xc2\xa7 16A (West 2000), did not rest on a\njury verdict. The Court concluded that \xe2\x80\x9cthe closest analogs to jury instructions\nwould be a bench-trial judge\xe2\x80\x99s formal rulings of law and findings of fact, and in\npleaded cases they would be the statement of factual basis for the charge . . .\nshown by a transcript of a plea colloquy or by written plea agreement presented to\nthe court, or by a record of comparable findings of fact adopted by the defendant\nupon entering the plea.\xe2\x80\x9d 544 U.S. at 20; see id. at 26 (for guilty plea, inquiry \xe2\x80\x9cis\nlimited to the terms of the charging document, the terms of a plea agreement or\n\n133\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntranscript of colloquy between judge and defendant in which the factual basis for\nthe plea was confirmed by the defendant, or to some comparable judicial record of\nthis information\xe2\x80\x9d). Such materials meet the categorical standard of Taylor as\n\xe2\x80\x9cconclusive records made or used in adjudicating guilt.\xe2\x80\x9d Id. at 21 (emphasis\nadded). The Court rejected the government\xe2\x80\x99s arguments that complaint applications or materials accompanying them (such as police reports) could be relevant.\nId. at 21\xe2\x80\x9322.\nThe Supreme Court in Shepard also necessarily rejected a series of decisions\nfrom the First Circuit, including the decision below, 348 F.3d 308, 312\xe2\x80\x9313 (1st\nCir. 2003), that, while purporting to follow the rule of Taylor, had nevertheless\nconsidered actual conduct relevant to determining the elements of the offense of\nconviction. In United States v. Harris, 964 F.2d 1234 (1st Cir. 1992), for example,\nthe First Circuit had reasoned that, if the indictment simply charged a violation of\na burglary statute, without further detail or with ambiguous boilerplate, and the\ndefendant pleaded guilty, such that no jury instructions existed, then \xe2\x80\x9cthe conduct\nin respect to which the defendant was charged and pled guilty . . . may indicate\nthat the defendant and the government both believed that the generically violent\ncrime (\xe2\x80\x98building\xe2\x80\x99), rather than the generically non-violent crime (\xe2\x80\x98vehicle\xe2\x80\x99) was at\nissue.\xe2\x80\x9d Id. at 1236; see also Shepard, 544 U.S. at 18 (noting view of First Circuit\nbelow that police reports could be \xe2\x80\x9c\xe2\x80\x98sufficiently reliable evidence\xe2\x80\x99\xe2\x80\x9d of elements\nincluded in guilty plea).\nDetermining the \xe2\x80\x9celement[s]\xe2\x80\x9d of the \xe2\x80\x9coffense\xe2\x80\x9d of which a person was \xe2\x80\x9cconvicted\xe2\x80\x9d by a court requires, in the words of both Shepard and Taylor quoted above,\nand consistent with the definition of \xe2\x80\x9celement,\xe2\x80\x9d evidence of the facts specified by\nlaw that were \xe2\x80\x9cnecessarily\xe2\x80\x9d found or \xe2\x80\x9cactually required\xe2\x80\x9d to be found by the\nconvicting court. Neither the subjective \xe2\x80\x9cbelie[fs]\xe2\x80\x9d of the government and\ndefendant, see Harris, 964 F.2d at 1236, nor the actual conduct of the defendant is\nrelevant to this determination. The question is what the convicting court objectively did. With regard to police reports, there is no necessary correlation between the\nalleged actual conduct reported by the police and the legally specified facts\nrequired to be found by the convicting court (even if a police report becomes\nattached to a charging document), at least absent a court having in some way\nadopted such a report so as to make it a \xe2\x80\x9cconclusive[] record\xe2\x80\x9d of the facts judicially found \xe2\x80\x9cin adjudicating guilt.\xe2\x80\x9d Shepard, 544 U.S. at 21; see id. at 20, 26. Indeed,\na record of such alleged conduct may be misleading. It may be that not all of the\ncrimes that the defendant arguably committed through his conduct were charged,\nor that not all of the charges led to convictions, or both. See, e.g., Kirksey, 138\nF.3d at 122\xe2\x80\x9323. A police report may be particularly misleading in the context of a\nplea agreement, given that the government may forgo prosecuting certain charged\noffenses in exchange for a guilty plea to a lesser offense. The Court in Taylor\nnoted a similar risk in support of its \xe2\x80\x9ccategorical approach\xe2\x80\x9d to burglary. 495 U.S.\nat 601\xe2\x80\x9302 (noting possibility of \xe2\x80\x9ca guilty plea to a lesser, nonburglary offense\xe2\x80\x9d as\n\xe2\x80\x9cthe result of a plea bargain\xe2\x80\x9d and risk of erroneously imposing a sentence en-\n\n134\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\nhancement \xe2\x80\x9cas if the defendant had pleaded guilty to burglary\xe2\x80\x9d). Thus, where a\nstatute genuinely has a disjunctive element, creating a factual question regarding\nthe elements of the actual offense of conviction, only records from the convicting\ncourt\xe2\x80\x94\xe2\x80\x9cconclusive records made or used in adjudicating guilt,\xe2\x80\x9d Shepard, 544 U.S.\nat 21\xe2\x80\x94will in fact reliably indicate whether the particular offense of conviction\nincluded an element meeting the definition of a \xe2\x80\x9cmisdemeanor crime of domestic\nviolence\xe2\x80\x9d in section 921(a)(33)(A)(ii). 4\nIII.\nOur conclusions regarding the plain meaning of the section 921(a)(33)(A)(ii)\ndefinition and the materials that are, as a consequence, relevant to whether a\nconvicting court found elements satisfying that definition apply equally to a\ndetermination by the FBI, in implementing the NICS, of whether a person\xe2\x80\x99s\nreceipt of a firearm would violate federal law. That conclusion, however, does not\nmean that non-judicial materials such as police reports are of no use for the work\nof the NICS.\nThe Brady Handgun Violence Prevention Act (\xe2\x80\x9cBrady Act\xe2\x80\x9d) required the Attorney General to \xe2\x80\x9cestablish a national instant criminal background check system\nthat any licensee may contact . . . for information, to be supplied immediately, on\nwhether receipt of a firearm by a prospective transferee would violate [certain\nfederal laws, including 18 U.S.C. \xc2\xa7 922(g)(9)] or State law.\xe2\x80\x9d Pub. L. No. 103-159,\n\xc2\xa7 103(b), 107 Stat. 1536, 1541 (1993). The Attorney General has fulfilled this\nmandate by establishing and maintaining the NICS within the FBI. See 28 C.F.R.\n\xc2\xa7\xc2\xa7 25.1 & 25.3 (2006).\n4\nWe are aware of a statement on the Senate floor regarding the section 922(g)(9) prohibition that\nmight be read to support a view that the prohibition should apply to convictions for offenses that do not\ninclude as an element the use or attempted use of physical force, or the threatened use of a deadly\nweapon. See 142 Cong. Rec. 26,675 (1996) (statement of Sen. Lautenberg, urging \xe2\x80\x9claw enforcement\nauthorities to thoroughly investigate misdemeanor convictions on an applicant\xe2\x80\x99s criminal record to\nensure that none involves domestic violence, before allowing the sale of a handgun.\xe2\x80\x9d). To the extent\nthat the statement can be so read, it does not control the question before us. First, legislative history has\nno place where, as here, the relevant statutory text is unambiguous. See, e.g., Dep\xe2\x80\x99t of Housing &\nUrban Dev. v. Rucker, 535 U.S. 125, 132 (2002) (\xe2\x80\x9c[R]eference to legislative history is inappropriate\nwhen the text of the statute is unambiguous.\xe2\x80\x9d); Davis v. Mich. Dep\xe2\x80\x99t of Treasury, 489 U.S. 803, 808 n.3\n(1989) (\xe2\x80\x9cLegislative history is irrelevant to the interpretation of an unambiguous statute.\xe2\x80\x9d). Second, the\nfinal language defining a \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d was a compromise between\nSenator Lautenberg and senators concerned with the breadth of his initial bill, which lacked the \xe2\x80\x9cas an\nelement\xe2\x80\x9d language. Compare 142 Cong. Rec. 5840 (1996) (initial bill) with id. at 26,674\xe2\x80\x9376 (discussing compromise). Reliance on a floor statement in such a case would give members of Congress \xe2\x80\x9cboth\nthe power and the incentive to attempt strategic manipulations of legislative history to secure results\nthey were unable to achieve through the statutory text.\xe2\x80\x9d Exxon Mobil Corp. v. Allapattah Serv., Inc.,\n545 U.S. 546, 568 (2005). Legislation invariably \xe2\x80\x9creflects compromise among competing interests,\xe2\x80\x9d\nHeath v. Varity Corp., 71 F.3d 256, 258 (7th Cir. 1995), and our task is simply to give effect to that\ncompromise\xe2\x80\x94as memorialized in \xe2\x80\x9cthe language actually voted on by Congress and signed into law by\nthe President,\xe2\x80\x9d Regan v. Wald, 468 U.S. 222, 237 (1984).\n\n135\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nAnother section of the Brady Act (section 102(b), codified at 18 U.S.C.\n\xc2\xa7 922(t)(1)), requires federally licensed firearms dealers (\xe2\x80\x9clicensees\xe2\x80\x9d) in most\ncases to contact the NICS before selling a firearm to a person. Upon receiving an\ninquiry, the NICS checks certain databases and in the ordinary course immediately responds with one of two determinations: \xe2\x80\x9cproceed,\xe2\x80\x9d which indicates that\nthe transfer is allowed, or \xe2\x80\x9cdenied,\xe2\x80\x9d which indicates that the transfer is not\nallowed. See 28 C.F.R. \xc2\xa7\xc2\xa7 25.2 & 25.6(c)(1) (2006); see also National Instant\nCriminal Background Check System Regulation, 69 Fed. Reg. 43,892, 43,897\n(July 23, 2004) (discussing high rate of immediate or nearly immediate responses). If the NICS is unable to determine immediately whether or not the transaction may proceed, it issues a \xe2\x80\x9cdelayed\xe2\x80\x9d response, and the inquiry remains\n\xe2\x80\x9copen.\xe2\x80\x9d See 28 C.F.R. \xc2\xa7\xc2\xa7 25.2 & 25.6(c)(1). Such a response temporarily prohibits the transfer and indicates that the NICS has found \xe2\x80\x9ca record that requires\nmore research to determine whether the prospective transferee is disqualified\nfrom possessing a firearm.\xe2\x80\x9d Id. \xc2\xa7 25.6(c)(1)(iv)(B). The NICS \xe2\x80\x9ccontinues researching potentially prohibiting records\xe2\x80\x9d in an effort to obtain \xe2\x80\x9cdefinitive\ninformation.\xe2\x80\x9d Id. \xc2\xa7 25.2 (defining \xe2\x80\x9cOpen\xe2\x80\x9d). If the NICS is unable to issue a\ndenial within three business days, the restriction on transfer by the licensee\nexpires. 18 U.S.C. \xc2\xa7 922(t)(1)(B)(ii). The NICS may, however, continue to\ninvestigate the transferee, for up to 90 days under current regulations. See 28\nC.F.R. \xc2\xa7 25.9(b)(1)(ii) (2006) (providing for destroying audit-log records regarding an open inquiry within 90 days of the inquiry). If it subsequently determines\nthat the receipt of the firearm was unlawful, the NICS issues a \xe2\x80\x9cdelayed denial.\xe2\x80\x9d\nIn such a case, the FBI will notify the ATF, see id. \xc2\xa7 25.9(b)(2)(i), which may\ntake action against the transferee.\nThe Brady Act authorizes the NICS to issue a denial only if it has concluded\n\xe2\x80\x9cthat the receipt of a firearm\xe2\x80\x9d by the prospective transferee \xe2\x80\x9cwould violate\xe2\x80\x9d federal\nor state law. 18 U.S.C. \xc2\xa7 922(t)(1)(B)(ii) (emphasis added); see id. \xc2\xa7 922(t)(5)\n(addressing licensee\xe2\x80\x99s failure to contact the NICS when the NICS \xe2\x80\x9cwas operating\nand information was available to the system demonstrating that receipt would\nviolate\xe2\x80\x9d federal or state law); Brady Act \xc2\xa7 103(b) (requiring NICS to provide\ninformation \xe2\x80\x9con whether receipt of a firearm by a prospective transferee would\nviolate\xe2\x80\x9d federal or state law). Alternatively, the NICS must issue a \xe2\x80\x9cproceed\xe2\x80\x9d if it\nhas concluded that such receipt \xe2\x80\x9cwould not violate\xe2\x80\x9d federal or state law. 18 U.S.C.\n\xc2\xa7 922(t)(2) (emphasis added). In addition, it may issue a \xe2\x80\x9cproceed\xe2\x80\x9d in cases in\nwhich it is not authorized to issue a denial (and decides that a \xe2\x80\x9cdelayed\xe2\x80\x9d response\nis not warranted), given that in such case there is no statutory authorization for a\ndenial. See id. \xc2\xa7 922(t)(4) (referring to the issuance by NICS of a \xe2\x80\x9cproceed\xe2\x80\x9d if \xe2\x80\x9cthe\ninformation available to the system does not demonstrate that the receipt of a\nfirearm by such other person would be\xe2\x80\x9d unlawful) (emphasis added).\nOur analyses above in Parts I and II establish the statutory rule and relevant\ncategory of materials for determining that a transfer \xe2\x80\x9cwould violate\xe2\x80\x9d the prohibition set out in sections 921(a)(33)(A)(ii) and 922(g)(9) regarding misdemeanor\n\n136\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\ncrimes of domestic violence. Because the NICS must determine whether a firearm\ntransaction \xe2\x80\x9cwould violate\xe2\x80\x9d section 922(g), the legal and factual questions for the\nNICS are the same as those for determining whether that prohibition applies in a\njudicial setting, regardless of the standard of proof applicable to the NICS (a\nquestion we have no occasion to address). If the legal definition of the crime of\nconviction (whether found in a statute or case law) unambiguously includes (or\nomits) an element involving \xe2\x80\x9cthe use or attempted use of physical force, or the\nthreatened use of a deadly weapon,\xe2\x80\x9d id. \xc2\xa7 921(a)(33)(A)(ii), then that definition\nand the record of conviction suffice. If such an element is included, a denial is\nappropriate; if such an element is omitted, a \xe2\x80\x9cproceed\xe2\x80\x9d is appropriate, barring any\nother bases under federal law for a denial. In neither scenario are the facts of the\ndefendant\xe2\x80\x99s underlying conduct relevant. 5\nIf the legal definition of the crime specified in the record of conviction contains\na disjunctive element, thus creating a factual question about the precise offense of\nconviction, as described above in Part II, then judicial documents of the sort\ndiscussed in Part II are relevant as the NICS seeks to determine whether the court,\nin convicting, was \xe2\x80\x9cactually required to find,\xe2\x80\x9d Taylor, 495 U.S. at 602, the subpart\nof the disjunctive element that meets the section 921(a)(33)(A)(ii) definition. If\nsuch documents are not already in the system, a \xe2\x80\x9cdelayed\xe2\x80\x9d response putting the\ninquiry into open status would be appropriate. But even where the statute allows\nfor multiple offenses and the record of conviction is inconclusive, police reports\nand similar materials may not establish the basis for a denial. For the reasons\ndiscussed in Part II, such materials are not probative of whether a transfer \xe2\x80\x9cwould\nviolate\xe2\x80\x9d the section 922(g)(9) prohibition because the transferee had a prior\n\xe2\x80\x9cconvict[ion]\xe2\x80\x9d for an \xe2\x80\x9coffense\xe2\x80\x9d containing a particular \xe2\x80\x9celement[].\xe2\x80\x9d\nWe understand from the FBI, however, that NICS practice with regard to statutes containing a disjunctive element has not been consistent with this interpretation and, in particular, that it has included reliance on police reports to justify\ndenials based on the elements of a prior conviction. See FBI Views Letter, supra\nnote 5, at 1\xe2\x80\x932. The FBI has expressly relied on the erroneous reasoning of the First\nCircuit in Shepard that even if actual conduct is not technically relevant, a police\nreport may be a generally reliable indicator to \xe2\x80\x9cinform the determination regarding\nthe prong of the statute under which the defendant pled or was otherwise convicted.\xe2\x80\x9d FBI Views Letter at 4; see id. at 2. As explained in Part II, such an approach\nis inconsistent with the statute and relevant case law.\n5\nThe FBI has informed us that its practice in such cases is consistent with this interpretation. See\nLetter for Jay Bybee, Assistant Attorney General, Office of Legal Counsel, from Larry R. Parkinson,\nGeneral Counsel, FBI, Re: Treasury Department Request for Opinion Regarding Misdemeanor Crimes\nof Domestic Violence at 3 (Mar. 6, 2002) (\xe2\x80\x9cFBI Views Letter\xe2\x80\x9d) (\xe2\x80\x9cNICS has always maintained that . . .\nthe statute at issue must contain the \xe2\x80\x98use of force\xe2\x80\x99 element (whether in the alternative or not). Only if\nthe statute contains such an element will NICS proceed with its investigation.\xe2\x80\x9d) (emphasis added). The\ndenial at issue in Kneifl, however, a case cited above in Part I, appears inconsistent with this practice,\nas the Nebraska statute unambiguously did not include such an element.\n\n137\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nNor does the Brady Act allow the NICS to adopt some lesser standard that\nmight justify reliance on police reports. See FBI Views Letter at 3. Section\n922(t)(1)(B)(ii) provides that the NICS, to justify a denial, must conclude that the\ntransfer \xe2\x80\x9cwould violate\xe2\x80\x9d federal or state law. (Emphasis added.) Section 922(t)(5)\nlikewise refers to \xe2\x80\x9cinformation . . . demonstrating that receipt . . . would violate\xe2\x80\x9d\nfederal or state law. (Emphasis added.) This language is not ambiguous. The\ninformation that the NICS possesses must demonstrate a violation; in the case of\nsection 922(g)(9), this requires information demonstrating a prior conviction in\nwhich the factfinder necessarily found the element required for a misdemeanor\ncrime of domestic violence. (This standard does not mean, however, that the NICS\nmust negate grounds for the prohibition not to apply, any more than a prosecutor\nmust disprove affirmative defenses.) Our discussion in Part II establishes what\ninformation is relevant in making such a demonstration. In the absence of such\ninformation, there is no statutory authority for the NICS to issue a denial under\nsection 922(g)(9). 6\nWe recognize the practical difficulties that the \xe2\x80\x9cmisdemeanor crime of domestic violence\xe2\x80\x9d definition and the limits of the statutory authority of the NICS may\npresent, particularly as the NICS strives to make a determination under the time\nconstraint that the Brady Act imposes. The FBI has explained that the NICS\n\xe2\x80\x9coperates in an environment different from that of ATF\xe2\x80\x9d and that, for misdemeanor convictions, \xe2\x80\x9coften the only relevant documents available within the three day\ntime frame are the record of conviction and the police report on the underlying\nincident that led to the conviction.\xe2\x80\x9d FBI Views Letter at 3; see id. at 5 (similar).\nBut the FBI\xe2\x80\x99s approach creates \xe2\x80\x9cpractical difficulties and potential unfairness\xe2\x80\x9d of\nits own, see Taylor, 495 U.S. at 601\xe2\x80\x9302, and, in any event, the difficulties the FBI\nhas identified do not allow us to disregard what the statute requires. We must\nreject the FBI\xe2\x80\x99s argument just as the Supreme Court in Shepard rejected the\ngovernment\xe2\x80\x99s argument based on \xe2\x80\x9cthe happenstance of state court record-keeping\npractices and the vagaries of state prosecutors\xe2\x80\x99 charging practices.\xe2\x80\x9d 544 U.S. at 22\n(internal quotation marks omitted).\nA police report or similar document may, however, in a particular case assist\nthe NICS in deciding to delay its response to a NICS inquiry and investigate\nfurther pursuant to its procedures for open inquiries. The implementing regulations\nrequire a \xe2\x80\x9cproceed\xe2\x80\x9d response \xe2\x80\x9cif no disqualifying information was found.\xe2\x80\x9d 28\nC.F.R. \xc2\xa7 25.6(c)(1)(iv)(A) (emphasis added). Yet if, as we understand is often the\ncase, the NICS is presented with a legal definition of a crime that at least has a\ndisjunctive element including a subpart that meets the \xe2\x80\x9cmisdemeanor crime of\n6\nConsistent with the statutory requirement, the NICS regulations likewise provide that a denial\nshould issue only when the NICS has \xe2\x80\x9cinformation demonstrating that receipt of a firearm by the\nprospective transferee would violate 18 U.S.C. \xc2\xa7 922 or state law.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 25.6(c)(1)(C); see also\nid. \xc2\xa7 25.2 (defining \xe2\x80\x9cOpen\xe2\x80\x9d status as the period in which the NICS researches \xe2\x80\x9cpotentially prohibiting\nrecords\xe2\x80\x9d for \xe2\x80\x9cdefinitive information\xe2\x80\x9d).\n\n138\n\n\x0cWhen a Prior Conviction Qualifies as a \xe2\x80\x9cMisdemeanor Crime of Domestic Violence\xe2\x80\x9d\n\ndomestic violence\xe2\x80\x9d definition, and with a record of conviction that does not\nspecify under which subpart the defendant was convicted, then the NICS does\nhave information indicating the possibility of a disqualification, even if not enough\nto justify a denial. The NICS might decline to conclude that the transfer \xe2\x80\x9cwould\nnot violate\xe2\x80\x9d the law. A \xe2\x80\x9cdelayed\xe2\x80\x9d response, rather than an immediate \xe2\x80\x9cproceed,\xe2\x80\x9d\nwould allow the NICS three days in which to pursue the matter before a transfer\noccurred. See id. \xc2\xa7 25.6(c)(1)(iv)(B) (explaining that delay indicates that the NICS\nhas found \xe2\x80\x9ca record that requires more research to determine whether the prospective transferee is disqualified from possessing a firearm\xe2\x80\x9d). And given the limited\ntime and resources available to the NICS, a police report or similar record\ndemonstrating alleged conduct that, if charged and proved, might have justified a\nconviction under the requisite subpart, may be useful for narrowing the field of\ncandidates on which the NICS will conduct more detailed background checks.\nEven if it could not reach a resolution within the three-day period, and the transfer\nwere allowed pursuant to the statutory requirement, the NICS could continue to\ninvestigate and, if appropriate, issue a delayed denial and refer the matter to the\nATF. Similar reasoning could apply if a prior conviction involved a statutory\ncrime, not familiar to the NICS, that was stated in general terms drawing on the\ncommon law. A police report may assist the NICS in determining whether\nresearch into the case law defining the elements of the crime is likely to be\nworthwhile.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n139\n\n\x0c'


b"August 22, 1979\n\n79-61\n\nMEMORANDUM OPINION FOR THE\nSECRETARY OF AGRICULTURE\nAnimal Welfare Act (7 U.S.C. \xc2\xa7 2131 et seq.)\xe2\x80\x94\nCommerce\xe2\x80\x94Application to Intrastate Activity\n\nThis is in response to your request for the opinion o f the Department of\nJustice on the scope o f coverage o f the Animal Welfare Act, 7 U.S.C.\n\xc2\xa7 2131 et seq. Specifically, you inquire whether the Act applies to activities\nthat are entirely intrastate. The occasion for your question is the recent\nrefusal by the U.S. Attorneys for the Eastern District o f Pennsylvania and\nthe Eastern District o f Illinois to prosecute cases referred to them by your\nDepartment on the ground that the Act extends only to interstate transac\xc2\xad\ntions. For reasons stated hereafter, we believe that Congress intended the\nAct to cover purely intrastate activities otherwise falling within its\nprovisions.'\nThe Animal Welfare Act was enacted in 1966 as Pub. L. No. 89-544, 80\nStat. 350. As stated in its preamble, its purpose was \xe2\x80\x9c to prevent the sale or\nuse o f dogs and cats which have been stolen, and to insure that certain\nanimals intended for use in research facilities are provided humane care\nand treatm ent,\xe2\x80\x9d by regulating certain activities \xe2\x80\x9c in com m erce.\xe2\x80\x9d This term\nwas defined in \xc2\xa7 2(c) o f the Act as follows:\nThe term \xe2\x80\x9c commerce\xe2\x80\x9d means commerce between any State, ter\xc2\xad\nritory, possession, or the District o f Columbia, or the Com m on\xc2\xad\nwealth o f P uerto Rico, and any place outside thereof; or between\npoints within the same State, territory, or possession, or the\nDistrict o f Columbia, or the Commonwealth o f Puerto Rico,\nbut through any place outside thereof; or within any territory,\npossession, or the District o f Columbia.\n\n'N othing in this opinion should be viewed as expressing our views on any question other\nthan the narrow legal issue regarding the general application o f the Animal Welfare Act to\npurely intrastate activities.\n\n326\n\n\x0cIn 1970, the definitional section o f the Act was amended. The definition of\n\xe2\x80\x9c commerce\xe2\x80\x9d in \xc2\xa7 2(c) was expanded to include \xe2\x80\x9c trade traffic * * * [and]\ntransportation,\xe2\x80\x9d as well as \xe2\x80\x9c commerce.\xe2\x80\x9d A new \xc2\xa7 2(d) added a new\ndefinition for \xe2\x80\x9c affecting commerce:\xe2\x80\x9d\nThe term \xe2\x80\x9c affecting commerce\xe2\x80\x9d means in commerce or burden\xc2\xad\ning or obstructing or substantially affecting commerce or the free\nflow of commerce, or having led or tending to lead to the in\xc2\xad\nhumane care o f animals used or intended for use for purposes of\nresearch, experimentation, exhibition, or held for sale as pets by\nburdening or obstructing or substantially affecting commerce or\nthe free flow o f commerce.\nAccording to the House report accompanying the 1970 bill, this addition\nwas\nintended to broaden the authority under the Act to regulate per\xc2\xad\nsons who supply animals which are intended for use in research\nfacilities, for exhibition, or as pets. [H. Rept. 1651, 91st Cong.,\n2d sess. 9 (1970).]\nMore im portant, subsequent sections o f the Act regulating specific ac\xc2\xad\ntivities were revised to cover activities \xe2\x80\x9c affecting com m erce,\xe2\x80\x9d rather than\nsimply those \xe2\x80\x9c in com m erce.\xe2\x80\x9d See, e.g., \xc2\xa7 4, 7 U.S.C. \xc2\xa7 2134 (transporta\xc2\xad\ntion o f animals); \xc2\xa7 11, 7 U.S.C. \xc2\xa7 2140 (identification of animals for\ntransportation). We believe these amendments reflect Congress\xe2\x80\x99 intention\nto expand the A ct\xe2\x80\x99s coverage beyond those activities that are \xe2\x80\x9c in com\xc2\xad\nmerce\xe2\x80\x9d in the strict sense and to reach activities that merely \xe2\x80\x9c affect\xe2\x80\x9d in\xc2\xad\nterstate commerce. This expanded coverage in turn reflects Congress\xe2\x80\x99\ndetermination that certain specified activities have a sufficient effect on\ncommerce among the States to require regulation, even if they take place\nentirely within one State.\nThe 1976 Amendments to the Animal Welfare Act confirm Congress\xe2\x80\x99\nintent that the Act should extend to intrastate activities. Its preamble,\n\xc2\xa7 1(b), 7 U.S.C. \xc2\xa7 2131(b), was revised to incorporate the specific congres\xc2\xad\nsional findings underlying the regulatory system imposed by the Act. It\nnow reads in pertinent part as follows:\nThe Congress finds that animals and activities which are\nregulated under this A ct are either in interstate or foreign com\xc2\xad\nmerce or substantially affect such commerce or the free flow\nthereof, and that regulation o f animals and activities as provided\nin this Act is necessary to prevent and eliminate burdens upon\nsuch commerce and to effectively regulate such com \xc2\xad\nmerce * * *. [Emphasis added.]\nIf there had been any doubt o f the coverage o f the Act prior to 1976, the\namended preamble makes clear that all activities regulated under the Act,\nincluding those confined to a single State, are governed by its provisions.\n327\n\n\x0cIn further clarification o f this point, the definition o f \xe2\x80\x9c commerce\xe2\x80\x9d\nitself now found in 7 U .S.C . \xc2\xa7 2132(c) was revised to consolidate former\n\xc2\xa7\xc2\xa7 2(c) and 2(d), so that the term \xe2\x80\x9c commerce\xe2\x80\x9d as used in the Act includes\nboth traffic between States and.traffic that merely \xe2\x80\x9c affects\xe2\x80\x9d such inter\xc2\xad\nstate traffic generally:\nThe term \xe2\x80\x9c commerce\xe2\x80\x9d means trade, traffic, transportation, or\nother commerce\xe2\x80\x94\n(1) between a place in a State and any place outside o f such\nState, or between points within the same State but through any\nplace outside thereof, or within any territory, possession, or the\nDistrict o f Columbia;\n(2) which affects trade, traffic, transportation, or other com \xc2\xad\nmerce described in paragraph (1).\nWe believe that this provision, read in the context o f the other provi\xc2\xad\nsions o f the Act and its legislative history, must be construed to provide\ntwo distinct definitions o f \xe2\x80\x9c commerce\xe2\x80\x9d for purposes o f the A ct\xe2\x80\x99s\ncoverage.2 Any other construction would make meaningless, or at best\nredundant, the 1970 and 1976 amendments to the Act. We are, therefore,\no f the opinion that the Animal Welfare Act applies to activities that take\nplace entirely within one State, as well as to those that involve traffic\nacross State lines.\nL a r r y L . S im m s\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n'I f Congress had used the conjunction \xe2\x80\x9c a n d \xe2\x80\x9d between subparagraphs (1) and (2), it would\nbe at least arguable that it would not have succeeded in carrying out its plain intent to expand\ncoverage o f the Act to purely intrastate activities that affect interstate commerce. Congress,\nhowever, did not use \xe2\x80\x9c a n d \xe2\x80\x9d to conjoin subparagraphs (1) and (2) but rather did not use a\nconnective word.\n\n\x0c"