The issue to be decided in this case is whether the "use . . .of physical force," as that term is used in § 921(a)(33)(A)(ii), is an element of the criminal offense of assault and battery under Virginia law. "Physical force" is not defined in § 921 or any other relevant federal statute.
"The phrase ‘physical force’ means violent force that is, force capable of causing physical pain or injury to another person." Johnson, 130 S. Ct. at 1271. In doing so, it is clear that "physical force," so defined, is not an element of assault and battery under the well-established law of Virginia. See cases cited supra at 6-8. Therefore, White’s conviction under VA CODE ANN. § 18.2-57.2 is not, on its face, a "misdemeanor crime of domestic violence" under § 922(g)(9) because the Virginia statute is not an "offense that . . . has, as an element, the use or attempted use of physical force."