Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
Dissenting opinion filed by Circuit Judge SENTELLE.
KAREN LeCRAFT HENDERSON, Circuit Judge:
John D. Barnes (Barnes) appeals his conviction under 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess firearms or ammunition. Barnes challenges whether his 1998 assault conviction under D.C.Code § 22-504(a) constitutes a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33)(A) because section 22-504(a) does not include as an express element of the offense any relationship between the offender and the victim. Our sister circuits that have addressed this question have rejected Barnes's reading of section 921(a)(33)(A). It is an issue of first impression for us. Barnes also raises several constitutional challenges to his firearms conviction. While section 921(a)(33)(A) is not a paradigm of precise draftsmanship, we nonetheless join the other circuits in concluding that section 921(a)(33)(A) does not require the predicate
On August 5, 1997 Barnes was charged in D.C. Superior Court with assault under D.C.Code § 22-504(a).
On August 17, 2000 an officer of the Metropolitan Police Department observed a vehicle being driven by Barnes. A paper trash bag obscured the right rear vent window. See 8/22/00 Tr. at 6. Believing that the car was stolen, the officer made a traffic stop and ran a search on Barnes's driver's license. The search revealed that he did not have a valid license. Upon placing Barnes under arrest for driving without a permit, the police officer conducted a search and discovered that Barnes had two .45 caliber bullets in his left pocket. See 8/22/00 Tr. 6-7. Another officer, who arrived at the scene before Barnes's arrest, searched the car and found a loaded and operable Sig Sauer .45 caliber pistol underneath the driver's seat. After a records check revealed that Barnes had been convicted of assault under D.C.Code § 22-504(a), see D.C. Superior Court Case No. M-11747-97, Barnes was charged with the unlawful and knowing receipt and possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(9). See Information in Cr. No. 00-295. On October 6, 2001 pursuant to a plea agreement, Barnes entered a conditional guilty plea to the one-count criminal information. In accordance with Fed. R.Crim.P. 11(a)(2), his plea agreement explicitly reserved his right to challenge whether his May 5, 1998 assault conviction constituted a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33)(A). Plea Agreement in United States v. Barnes, Cr. No. 00-0295 at 2.
On February 1, 2001 Barnes filed a brief in district court, raising the statutory claim explicitly reserved in his plea agreement, see February 1, 2001 Defendant's Memorandum of Law (App. 20-58), along with an unopposed motion to supplement that claim with several constitutional arguments. See February 1, 2001 Defendant's Unopposed Motion to Supplement (App. 16-19). Barnes maintained that his assault conviction under D.C.Code § 22-504(a), which "does not include the relational element set forth in 18 U.S.C. § 921(a)(33)(A)," does not qualify as a "misdemeanor crime of domestic violence" under section 922(g)(9). February 1, 2001 Defendant's Memorandum of Law at 3-6 (App. 22-25). He also claimed that his conviction violated "principles of equal protection contained in the Due Process
On March 19, 2001 the district court held that Barnes's "conviction in the Superior Court of the District of Columbia in Criminal Case No. M-11747-97 for simple assault under D.C.Code § 22-504 constitutes a `misdemeanor crime of domestic violence' within the meaning of 18 U.S.C. § 921(a)(33)(A) and can thus serve as a predicate for conviction under 18 U.S.C. § 922(g)(9)." March 19, 2001 Order at 1 (App. 76). Regarding the statutory question, the district court adopted the reasoning of the First and Eighth Circuits, stating that "[h]ad Congress intended to require the prosecution to prove as elements of the offense both the use of force and the relationship of the defendant to the victim, it surely could have done so by using the plural, `elements,' rather than the singular, `element,' when writing § 921(a)(33)'s definition of a misdemeanor crime of domestic violence." See March 19, 2001 Memorandum Opinion at 4 (citing United States v. Meade, 175 F.3d 215, 218-20 (1st Cir.1999), and United States v. Smith, 171 F.3d 617, 619-20 (8th Cir.1999)). The district court also rejected Barnes's constitutional challenges. See March 19, 2001 Memorandum Opinion at 7-11. On April 17, 2001 the district court sentenced Barnes to a term of imprisonment of twelve months and one day, followed by two years' supervised release as well as a special assessment of $100. 4/17/01 Tr. 7. Barnes filed a timely notice of appeal and the district court stayed execution of the sentence pending appeal.
Because the district court's ruling involved solely questions of law, our review is de novo. See Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999) (citations omitted); United States v. Popa, 187 F.3d 672, 674 (D.C.Cir.1999) (citations omitted) (first amendment challenge subject to de novo review).
A. Elements of "Misdemeanor Crime of Domestic Violence"
In 1996, the Congress amended the Gun Control Act of 1968, 18 U.S.C. § 922 (1994), by providing that:
18 U.S.C. § 922(g)(9). Section 921 of Title 18, entitled "Definitions," provides in pertinent part:
Barnes asserts that the definition of "misdemeanor crime of domestic violence" set forth in section 921(a)(33)(A) requires the predicate offense to "contain, `as an element,' not only the `use or attempted use of physical force ...' but also that the use of force be `committed by' a person who maintained a domestic relationship with the victim, as specifically defined in the statute." See Barnes's Br. at 7-8. The government responds that "the text and legislative purpose" demonstrate that section 921(a)(33)(A) "does not require that the necessary domestic relationship be established as an element of the predicate offense." Gov't Br. at 12-13.
In construing a statute, we look first for the plain meaning of the text. If the language of the statute has a "plain and unambiguous meaning," our inquiry ends so long as the resulting "statutory scheme is coherent and consistent." See United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (internal quotations omitted)). Whether statutory language is plain depends on "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (quoting Robinson, 519 U.S. at 341, 117 S.Ct. at 843).
Both sides agree that D.C.Code § 22-504(a) constitutes a "misdemeanor under ... State Law" within the meaning of section 921(a)(33)(A)(i). Barnes and the government also agree that section 921(a)(33)(A)(ii) requires that a "misdemeanor crime of domestic violence" contain "as an element" "the use or attempted use of physical force, or the threatened use of a deadly weapon." 18 U.S.C. § 921(a)(33)(A)(ii). Moreover, there is no dispute that section 22-504(a) of the D.C.Code contains a similar element.
The premise of Barnes's reading of section 921(a)(33)(A)(ii) is that the "committed by" language modifies the "use of force" clause immediately preceding it and thus is included in the "element" that a "misdemeanor crime of domestic violence" must contain. Barnes refers to what is known as the "Rule of the Last Antecedent," whereby "[o]rdinarily, qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to others more remote." United States v. Pritchett, 470 F.2d 455, 459 & n. 9 (D.C.Cir.1972). Accordingly, Barnes argues that the "committed by" phrase modifies the "use of force" element because the latter immediately precedes the former within subpart (ii). As was noted in Pritchett, however, "the Rule of Last Antecedent is not an inflexible rule, and is not applied where the context indicates otherwise." Id. at 459. Here, context is everything. Bearing in mind that, "when construing a statute, we are obliged to give effect, if possible, to every word Congress used," Murphy Exploration & Prod. Co. v. U.S. Dept. of Interior, 252 F.3d 473, 481 (D.C.Cir.2001) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979)); see also Alabama Power Co. v. EPA, 40 F.3d 450, 455 (D.C.Cir.1994) ("[s]tatutory text is to be interpreted to give consistent and harmonious effect to each of its provisions"), we must determine if "committed by" can, consistent with its meaning, modify "use of force." The verb "commit" means "to do (something wrong or reprehensible), to perpetrate, be guilty of (a crime or offence, etc.)." Oxford English Dictionary 559 (2d ed.1989) (emphasis added). The use of force is not "committed" "done" or "perpetrated."
it would be obvious that "committed" modifies "offense" and that monetary gain is the only "element." Just as "monetary gain" is not "committed," the "use of force" is not "committed." The "offense" is "committed."
Id. at 1311. The fact that the Congress somewhat awkwardly included the "committed by" phrase in subpart (ii) (instead of adding a subpart (iii)) is not significant in view of the unnatural reading that would result if "committed by" were construed to modify "use of force."
That the district court as well as every other court that has considered the issue concluded, albeit on a different basis, that section 921(a)(33)(A)'s language plainly requires only one element, i.e., the use of force, further bolsters our interpretation. See March 19, 2001 Memorandum Opinion at 4; United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.2000) (concluding that conviction under 18 U.S.C. § 113(a)(4), general assault statute for U.S. territories, constitutes "misdemeanor crime of domestic violence"); United States v. Meade, 175 F.3d 215, 218-19 (1st Cir.1999) (defendant's state misdemeanor conviction for assaulting his spouse, under Massachusetts's general assault and battery statute, is "misdemeanor crime of domestic violence," within 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9)); United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (conviction under Iowa misdemeanor simple assault statute for defendant's assault of mother of his child constitutes "misdemeanor crime of domestic violence"); United States v. Thomson, 134 F.Supp.2d 1227, 1230 (D.Utah 2001); United States v. Meade, 986 F.Supp. 66, 68 (D.Mass.1997); United States v. Smith, 964 F.Supp. 286, 291-92 (N.D.Iowa); see also United States v. Ball, 7 Fed.Appx. 210, 213, 2001 WL 324624 (4th Cir.2001), cert. denied, 122 S.Ct. 226 (2001) (unpublished per curiam order). These courts found the Congress's use of the singular "element" rather than "elements" determinative. As the district court in Meade stated:
Meade, 986 F.Supp. at 68. Barnes counters that if, as he contends, the "committed by" language modifies the use of force clause, "Congress could have reasonably viewed the two factual requirements as a single element." Barnes Br. at 12. Under this view, the use of the singular element is not determinative because a qualifying "misdemeanor crime of domestic violence" simply has one element with two subparts. To be sure, the Congress has used the singular "element" when referring to more than one factor in other provisions of Title 18. See, e.g., 18 U.S.C. § 16(a) (defining "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"(emphasis added)). Nonetheless, while a "crime of violence" may have a necessarily two-pronged single "element," namely (1) use of force (2) against another's person or property, the singular "element" used in section 921(a)(33)(A)(ii) is followed by two independent, and unlinked, factors, the use of force and the perpetrator's relationship to the victim.
We are also influenced by the fact that Barnes's interpretation of section 921(a)(33)(A)(ii) would create a "significant practical anomaly," rendering the law a nullity in a majority of the states as well as at the Federal level. Meade, 175 F.3d at 220. A "statute should ordinarily be read to effectuate its purposes rather than frustrate them." See, e.g., Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. Ruckelshaus, 719 F.2d 1159, 1165 (D.C.Cir.1983) (citations omitted).
142 Cong. Rec. S10377-01, *S10377-78 (1996). Fewer than half of the states currently have a "domestic assault" statute that expressly includes as elements both the use of force and a specific relationship between the offender and victim.
The legislative history of the Lautenberg Amendment confirms what the natural meaning of the statutory language reveals, namely that the "has as an element" language refers solely to the use of force. We "do not resort to legislative history to cloud a statutory text that is clear," which we believe section 921(a)(33)(A) to be. Were it unclear, we could look to legislative history to "shed new light on congressional intent." U.S. Telecom Ass'n v. FBI, 276 F.3d 620, 625 (D.C.Cir.2002) (internal quotations omitted). In describing the legislation's enforcement provisions, Senator Lautenberg foresaw the statutory construction question central to this case:
142 Cong. Rec. S11872-01, *S11878 (1996) (emphasis added). See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27, 102 S.Ct. 1912, 1920-21, 72 L.Ed.2d 299 (1982) ("remarks ... of the sponsor of the language ultimately enacted, are an authoritative guide to the statute's construction"); see also Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1370 n. 6 (D.C.Cir. 1990). His statements express the unmistakable intent that a "misdemeanor crime of domestic violence" need not expressly include a domestic relationship element.
The legislative history also reveals that the "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" language was added to the statute shortly before the provision was enacted. Replacing the originally proposed language that defined the predicate offense as a "crime of violence," Senator Lautenberg explained that the addition of the "as an element" language was not intended to apply to the domestic relationship language:
142 Cong. Rec. S11872-01.
Barnes contends the district court's interpretation of section 921(a)(33)(A)(ii) renders it unconstitutionally vague because "there is no way for a person to know from its language whether the relational requirement is an element of the predicate crime." Barnes Br. at 16. He further argues that the relationship requirement itself is infirm because "a defendant convicted of simple assault cannot be sure whether he or she might later be held to be a `guardian' of the victim ... or `similarly situated' to a spouse, parent, or guardian of the victim." Id. at 17. A similar argument has been rejected by two circuit courts. See Meade, 175 F.3d at 222 (section 921(a)(33)(A)(ii) contains no ambiguity as to either persons to whom prohibitions apply or proscribed conduct); Smith, 171 F.3d at 623 (rejecting vagueness challenge).
To decide a vagueness challenge, we must assess whether it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997). We have noted before that "the Constitution does not require unattainable feats of statutory clarity." Hutchins v. District of Columbia, 188 F.3d 531, 546 (D.C.Cir.1999) (quotations omitted). As the Eighth Circuit in Smith declared, "[w]e would be hard pressed to find an individual of common, or even not so common, intelligence who could not determine whether he was in one of the enumerated relationships when he committed a misdemeanor crime including an element of physical force." 171 F.3d at 623. Barnes's alternative interpretation of the statutory text does not by itself establish vagueness. "Since words, by their nature, are imprecise instruments, even laws that easily survive vagueness challenges may have gray areas at the margins." United States v. Nason, 269 F.3d 10, 22 (1st Cir.2001) ("use of force" in § 921(a)(33)(A)(ii) not unconstitutionally vague) (citing United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 169, 74 L.Ed. 508 (1930)). We conclude that section 921(a)(33)(A)(ii) is sufficiently clear to reject Barnes's vagueness attack.
C. Due Process
Barnes further argues that section 922(g)(9) violates his due process right under the Fifth Amendment because it does not require the government to prove, as an element of the offense, that he knew his possession of a firearm was illegal. A long line of circuit courts has rejected this argument. See, e.g., United States v. Mitchell, 209 F.3d 319, 322 (4th Cir.) (citing Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 1945, 141
As we already noted, section 922(g)(9) requires the defendant to "knowingly" violate the statute. See supra at 1359 n. 2. The Supreme Court has made clear that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 1945, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted). The Bryan Court concluded that "unless the text of the statute dictates a different result, the term `knowingly' merely requires proof of knowledge of the facts that constitute the offense." Id. at 193, 118 S.Ct. at 1946. The rule in Bryan has been applied by other circuit courts without exception in interpreting section 924(a)(2), which requires that a section 922(g)(9) offense be "knowingly" committed. See, e.g., United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.1999), cert. denied, 527 U.S. 1029, 119 S.Ct. 2383, 144 L.Ed.2d 785 (1999); United States v. Beavers, 206 F.3d 706, 708-09 (6th Cir.2000); United States v. Meade, 175 F.3d 215, 226 n. 5 (1st Cir.1999). Barnes knowingly possessed the firearm and that is the only knowledge required to convict him. He argues, however, that section 922(g)(9) falls within the narrow exception carved out by the holding in Lambert v. State of California, 355 U.S. 225, 228-30, 78 S.Ct. 240, 242-43, 2 L.Ed.2d 228 (1957). See Barnes Br. at 19. Lambert involved a city ordinance that made it a crime for any felon to remain in Los Angeles for more than five days without registering with the police. Lambert, 355 U.S. at 226-27, 78 S.Ct. at 241-42. The Supreme Court reversed the defendant's conviction on due process grounds because the city failed to establish that the defendant had notice that her "wholly passive conduct" could constitute a crime. Id. at 228, 78 S.Ct. at 243. Barnes contends that section 922(g)(9) is a similar statute that subjects to criminal prosecution an individual engaged in otherwise innocent conduct — possession of a firearm. The salient fact in Lambert, however, was that the defendant had no reason to know, or even to attempt to discover, that she was required to register in order to continue living in Los Angeles. Other circuit courts that have addressed this argument have uniformly rejected it. The Sixth Circuit's observation in United States v. Beavers is instructive:
206 F.3d at 710. Having been convicted of a violent crime, Barnes had reason to know that the government could regulate his possession of firearms and thus he cannot avail himself of the limited Lambert exception.
D. Equal Protection
Section 921(a)(33)(B)(ii) provides an exception to section 922(g)(9) "if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)." In the District of Columbia, as in most states, an individual convicted of a misdemeanor does not forfeit his civil rights. Barnes argues that he is thus in a worse position than a person convicted in a jurisdiction that authorizes the loss of civil rights but can also restore them. Claiming that there is no rational basis for this distinction, he asserts that his conviction violates equal protection. See Barnes Br. at 21 (citing Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)). His claim is without merit.
Because domestic violence misdemeanants are not a suspect class for equal protection purposes and because no "fundamental right" is implicated, the classification will be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Fraternal Order of Police v. United States, 173 F.3d 898, 903 (D.C.Cir.) (quotations omitted), cert. denied, 528 U.S. 928, 120 S.Ct. 324, 145 L.Ed.2d 253 (1999). The Congress's decision to incorporate state law governing forfeiture of civil rights was rational irrespective of differences among states regarding restoration. Furthermore, the Congress provided other methods such as expungement and pardon that Barnes might use to come within the exception of section 921(a)(33). See McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir.1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996).
For the foregoing reasons, we affirm the district court's holding that Barnes's conviction of assault under D.C.Code § 22-504(a) constitutes a "misdemeanor crime of domestic violence" within the meaning of 18 U.S.C. § 921(a)(33)(A) and thus validly serves as a predicate offense for his conviction under 18 U.S.C. § 922(g)(9).
SENTELLE, Circuit Judge, dissenting:
Defendant Barnes appeals from a judgment sentencing him for the violation of a statute which, in pertinent part, declares it "unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess ... any firearm...." 18 U.S.C. § 922(g)(9). The statute defines the term "misdemeanor crime of domestic violence" as meaning an offense that is a misdemeanor under federal or state law; and "has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by ... a person with whom the victim shares a child in common...." 18 U.S.C. § 921(a)(33)(i) & (ii).
The case before us turns on statutory interpretation. If the language of a statute has a "plain and unambiguous meaning," our inquiry ends so long as the resulting "statutory scheme" is coherent and consistent. United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002). As I read the federal firearms statute at issue, Congress required that the underlying misdemeanor statute of conviction must have had as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a [specified
The United States argues that Congress's use of the word "element," as opposed to "elements," means that the gravamen of the underlying offense needs to include only the use of force or threatened use of force with an extra-statutory finding that the forbidden use or threat of force was committed by a person who bears the relevant relationship. This argument has been accepted by our District Court, the majority today, and at least one other circuit. See United States v. Meade, 175 F.3d 215, 219 (1st Cir.1999); see also United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (alluding to the "singular term `element'" but with little supporting or elucidating reasoning). Nonetheless, with due respect to all the judges who have concluded otherwise, I find the argument not only unconvincing, but largely meaningless. For the argument today is not how many elements are involved, but what the singular element is.
As Meade properly describes it, that singular word "element" refers "to the immediately following attribute." Meade, 175 F.3d at 219. Just so, but so what? The restatement of "element" as "attribute" begs the question of what single element-turned-attribute the statute requires. Just as an element might be either simple or complex and remain a single element, so might an attribute. For example, if a purchaser were to express a strong desire to own a pickup truck which has as an attribute tires manufactured by an American company, that purchaser would not likely be satisfied to sign a contract of purchase specifying only that the truck "have as an attribute tires," leaving the question of their manufacturer for some discussion outside the contract. We have before us something far more important than a contract of sale. We have a penal statute. Fundamental to our fairness-centered criminal justice system is the rule of lenity for the interpretation of ambiguous penal statutes. See, e.g., United States v. Singleton, 182 F.3d 7, 13 & n. 12 (D.C.Cir. 1999) (collecting authorities). Under the rule of lenity, a criminal defendant is, and should be, afforded the benefit of the doubtful application of ambiguous statutory language. It cannot be gainsaid that the language of this statute is ambiguous. The majority opinion itself is rife with allusions to its ambiguity. "[S]ection 921(a)(33)(A) is not a paradigm of precise draftsmanship." Maj. Op. at 1356. "[I]f the statute read [otherwise], it would be obvious that `committed' modifies `offense.'" Maj. Op. at 1360. "If the Congress had more precisely articulated its intention, our task would have been easier." Maj. Op. at 1361. "[T]he Congress somewhat awkwardly included the `committed by' phrase in subpart (ii)." Maj. Op. at 1361. The majority's grammatical and syntactical analysis defending its interpretation of the statute is quite detailed and quite skilled. But the necessity for such a detailed and skilled analysis itself illustrates the ambiguity of the words construed. I would apply the rule of lenity, and I would reverse the judgment of the District Court.
The supportive arguments offered by the government are equally unconvincing.
As to the argument that the statute as I would construe it applies in fewer states than the statute as construed by the government, I frankly do not see how this proves anything at all. The government admits in its brief that the Supreme Court has held repeatedly that Congress may validly and constitutionally adopt criminal laws that apply differently in different states based upon variances in state law. See, e.g., United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295-96, 2 L.Ed.2d 282 (1958) (holding that Congress had constitutional authority to pass the Assimilative Crimes Act, making state law applicable to federal enclaves within the states, and citing other statutes that define federal offenses based upon variances in state law); see also United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.1974) (the fact that federal statute prohibiting illegal gambling businesses applies only in states where gambling is illegal "does not result in a denial of equality").
Finally, the majority stresses an argument based on the use of the word "committed" theorizing that "use of force" is not "committed." I would note at the outset that this is an argument not made by the parties. As a matter of first principles, I have no problem with that fact. As I have written before, the appropriate question is not whether an argument is raised by the parties, but whether an issue is properly brought before the court. "`When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.'" Eldred v. Reno, 239 F.3d 372, 384 (D.C.Cir. 2001) (Sentelle, J., dissenting) (quoting United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402 (1993)). However, the majority's reliance upon an argument not made by the parties is at least arguably in conflict with circuit law. See Seattle Opera v. NLRB, 292 F.3d 757, at 763 & n.8 (D.C.Cir.2002). Nonetheless, even if we treat the argument as properly before us, I find it unconvincing. I see no reason beyond the majority's ipse dixit to conclude that the "use of force" is not "committed" by the related person.
In short, I respectfully dissent.