For one subsection of the statute, a federal appeals court has answered this question, and the answer is no. In United States v. DeFrance, 124 F.4th 814 (9th Cir. 2024), the Ninth Circuit held that a conviction for partner or family member assault under MCA § 45-5-206(1)(a) does not qualify as a "misdemeanor crime of domestic violence" for the federal firearm ban in 18 U.S.C. § 922(g)(9). This page explains the reasoning and, just as important, what the decision leaves untouched. It is part of our Montana Domestic Violence Guide.
The Federal Test Looks at Elements, Not Facts
The federal definitionasks whether the offense "has, 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)). Courts answer that by reading the state statute, not the police report. If the least serious conduct the statute covers does not involve physical force, the offense does not qualify, even when the actual incident did.
The Supreme Court has read "physical force" generously in this setting. United States v. Castleman, 572 U.S. 157 (2014), held that offensive touching is enough and that knowingly causing bodily injury necessarily involves force. Voisine v. United States, 579 U.S. 686 (2016), held that a reckless assault qualifies.
What the Ninth Circuit Held in DeFrance
Mr. DeFrance had pleaded guilty in 2013 to a misdemeanor under § 45-5-206(1)(a) and was later convicted in federal court of possessing firearms. The Ninth Circuit reversed that federal conviction. Its reasoning ran in three steps:
- Montana defines bodily injury to include "mental illness or impairment" (MCA § 45-2-101).
- Relying on its earlier decision in United States v. Castro and on Montana Supreme Court decisions about related assault statutes, the court concluded that a person can violate (1)(a) through communication that inflicts emotional anguish.
- Inflicting emotional anguish does not require physical force as federal law defines it, so the use of physical force is not an element of (1)(a).
The government pointed out that Montana's wording resembles the Tennessee statute in Castleman. The court answered that it must also follow how Montana's own courts read Montana's statutes. It acknowledged that it may be unlikely Montana would actually prosecute (1)(a) on words and emotional injury alone, and held that this did not change the result. In a separate concurrence, the opinion's author wrote that the outcome was dictated by precedent even though it cannot be what Congress intended.
The Three Subsections
| § 45-5-206 | Conduct | Status under federal law |
|---|---|---|
| (1)(a) | Purposely or knowingly causes bodily injury to a partner or family member | Decided. Not a misdemeanor crime of domestic violence (United States v. DeFrance). |
| (1)(b) | Negligently causes bodily injury to a partner or family member with a weapon | Not decided in DeFrance. The same Montana definition of bodily injury applies, and the Supreme Court has said the use of force does not include accidents. |
| (1)(c) | Purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member | Not decided in DeFrance. The subsection does not require physical contact or a weapon. Treat it as an open question for a lawyer. |
The opinion notes that the trial court treated the statute as divisible into its subsections and that neither side challenged that. So the first step in any review is finding out which subsection the judgment rests on. Our page on reasonable apprehension explains subsection (1)(c). Because no court decision we have read resolves (1)(b) or (1)(c), we flag both as questions to raise with a lawyer, not as settled law.
What DeFrance Does Not Change
- Montana court orders. A release condition, a sentence condition under MCA § 45-5-206(7) or § 46-18-202(1)(b), and an order of protection all remain enforceable on their own terms.
- The protection order ban. 18 U.S.C. § 922(g)(8) is a separate paragraph. See orders of protection and guns.
- Felonies. A third or later PFMA, strangulation, and other felonies fall under § 922(g)(1), which has no force element test.
- Other convictions. A conviction under another state's law, or a different Montana offense, gets its own analysis.
Why Caution Is Still the Right Approach
DeFrance binds federal courts within the Ninth Circuit, which includes Montana. A court elsewhere would not be required to follow it. The opinion also does not address how background check records are coded or how a dealer's paperwork should be answered, and in a footnote it left open whether its holding affected Mr. DeFrance's separate convictions for false statements in acquiring firearms.
The law here can also move. Congress could amend the federal definition, the Montana Legislature could change the definition of bodily injury, and a later court could revisit the issue. A violation of § 922(g) is punishable by up to 15 years (18 U.S.C. § 924(a)(8)). Before you possess, buy, or take back a firearm after a PFMA conviction, have a lawyer read the judgment, every order still in effect, and your full record.
If Your Case Is Still Pending
The subsection named in a charge or a plea can affect consequences well beyond the sentence. That is one reason the charging language matters in plea discussions, and one more reason to talk with a defense lawyer early. Our PFMA defense page describes how we approach these cases.
This page explains the law in general as of the 2025 Montana Code Annotated and the Ninth Circuit's 2024 decision in United States v. DeFrance. Courts and legislatures can change this area quickly. It is not legal advice about your specific case.