The court of appeals concludes that there’s no basis in the record for determining whether Leonard’s disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence” under the federal firearm prohibition, 18 U.S.C. § 922(g)(9), and therefore he is not barred from possessing a firearm under that statute. The court also holds that Leonard’s disorderly conduct “involv[ed] the use of” one of Leonard’s guns and therefore § 968.20(1m)(b) bars the return of that gun.
Police were dispatched to a “disturbance” involving Leonard arguing with his wife. The officers left after Leonard said he was going to sleep in his truck in the garage. From the garage Leonard texted his wife, saying he hated her and threatening suicide. He later kicked in the back door, got his .44 Magnum handgun, and threatened to shoot himself. The police returned and arrested Leonard, who was in his truck in the garage. The handgun was in a box outside the truck. Police also seized ammunition and six other guns. (¶¶3-6, 8).
Leonard was charged with disorderly with a domestic abuse modifier. He pled to the DC without the domestic abuse modifier. The circuit court denied his motion for return of his guns and ammo after deciding that: Leonard can’t possess firearms because his disorderly conduct conviction is a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9); and, alternatively, § 968.20(1m)(b) barred return because the firearms and ammunition were used in the commission of the crime. (¶¶7-8).
Misdemeanor crime of domestic abuse under § 922(g)(9)
Citing the interpretation of “crime of domestic violence” in United States v. Castleman, 134 S. Ct. 1405, 1416 (2014), Leonard claims his wife was not the victim of his disorderly conduct because the physical force involved in that offense was not “directed at” her, but at the door he kicked in. The court disagrees:
¶28 Castleman does suggest that crimes in which no force was directed at a person do not qualify as misdemeanor crimes of domestic violence for purposes of 18 U.S.C. § 922(g)(9). However, Leonard’s appellate argument is based on the assumption that an act of physical force committed against an inanimate object can never be found to have been “directed at” a person. We reject that premise because, contrary to the Court’s rationale in Castleman, it ignores the nature of domestic violence. Instead, for purposes of applying § 922(g)(9), we conclude an act of physical force against an inanimate object may qualify as being “directed at” a person when the evidence shows that the act was directed at frightening or intimidating the person. As the Castleman Court aptly explained, in the domestic violence context, the accumulation of relatively mild acts of physical force over time, such as squeezing an arm hard enough to cause a bruise, can work to “subject one intimate partner to the other’s control.” Castleman, 134 S. Ct. at 1412. The same principle applies when an act of physical force is performed against an inanimate object. This type of act, when part of a course of conduct manifestly directed at frightening or intimidating the victim, can subject the victim to the defendant’s control just as effectively as a squeeze of the arm.
One reasonable inference from the allegations in the complaint is that Leonard’s act of kicking in the door was “directed at” his wife “in the sense that it was part of a course of conduct directed at frightening and intimidating her.” (¶29). Thus, even though Leonard’s wife was not physically harmed, his conduct could satisfy the definition of “crime of domestic abuse.”
But the allegations in the complaint also support another reasonable inference: that Leonard kicked in the door not to frighten and intimidate his wife, but because he was intoxicated and locked out in the cold, and that Leonard’s suicide threats and related conduct weren’t intended to frighten his wife, but were the result of his intoxication or genuinely suicidal thoughts. (¶30). That there is another reasonable inference is fatal to the state’s claim that § 922(g)(9) covers Leonard. That’s because Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, requires the court to apply a “modified categorical” approach to determine whether Leonard’s disorderly conduct conviction is a crime of domestic violence. (¶¶18-22). Under the modified categorical approach, a court consults “a ‘limited class of documents,’ including charging documents, transcripts of plea colloquies, and jury instructions … ‘to identify, from among several alternatives, the crime of conviction.’” Id., ¶18. That approach provides no way to resolve the competing inferences in this case, so the court can’t conclude that Leonard’s conviction is covered by § 922(g)(9):
¶31 …[T]he criminal complaint gives rise to competing, reasonable inferences regarding whether Leonard’s actions on the night of his arrest, including his use of physical force, were intended to frighten and intimidate his wife. Choosing between these inferences would constitute a finding of fact, and the court of appeals cannot find facts. See Kovalic v. DEC Int’l, 186 Wis. 2d 162, 172, 519 N.W.2d 351 (Ct. App. 1994). Although we review a circuit court’s factual findings under the clearly erroneous standard, see Wis. Stat. § 805.17(2), the court in this case did not make any findings regarding Leonard’s intent or motivation. Accordingly, although we reject Leonard’s argument that physical force against an inanimate object can never qualify as being “directed at” a person for purposes of 18 U.S.C. § 922(g)(9), we cannot determine whether the force used in this case was actually directed at Leonard’s wife, in the sense that it was part of a course of conduct directed at frightening and intimidating her. …
 Theoretically, we could remand for the circuit court to make factual findings on the issue of Leonard’s intent. However, under the modified contextual [sic] approach, the only documents the court would be able to consider would be the criminal complaint and the plea hearing transcript. See Evans, 353 Wis. 2d 289, ¶18 (quoting Descamps v. United States, 133 S. Ct. 2276, 2281, 2285 (2013)). As explained above, those documents give rise to competing, reasonable inferences regarding Leonard’s intent. Without taking other evidence, which it would be prohibited from doing, the circuit court would lack any reasonable basis to choose between these competing inferences.
Return of property under § 968.20
The circuit court correctly concluded the disorderly conduct involved the use of the .44 Magnum:
¶16 …. A person commits disorderly conduct when he or she “in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance[.]” Wis. Stat. § 947.01. Pursuant to the allegations in the criminal complaint, which Leonard conceded provided a factual basis for his plea, Leonard’s disorderly conduct conviction was not based on the single event of kicking in the locked door to his residence. Rather, it was based on a course of conduct that included kicking in the door, frightening his wife, and obtaining the .44 Magnum and threatening to kill himself. We therefore agree with the State and the circuit court that the .44 Magnum was used in the commission of the crime for which Leonard was convicted. Accordingly, return of the .44 Magnum is barred by Wis. Stat. § 968.20(1m)(b)….
It doesn’t matter that Leonard didn’t point the gun at anyone, wave the gun around, or take any steps to implement his threat to kill himself. The phrase “use of the dangerous weapon” in § 968.20(1m)(b) extends beyond the active use of a weapon and includes “conscious possession with an ability to use,” State v. Perez, 2001 WI 79, ¶¶24-30, 244 Wis. 2d 582, 628 N.W.2d 820, and Leonard consciously possessed and had the ability to use the .44 Magnum during the incident. (¶16 n.6).
However, the ammunition and the other guns the police seized are not covered by § 968.20(1m)(b) because there’s no evidence Leonard touched those items, referred to them, or attempted to access them during the events that formed the basis for his disorderly conduct conviction. Thus, those items can be returned to Leonard. (¶17).