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Court of appeals rejects DOJ’s reading of arrest record expungement statute

Demonta Antonio Hall v. Wisconsin Department of Justice, 2020 WI App 12; case activity (including briefs)

In a decision that will certainly benefit some people who were arrested for a crime but never charged, the court of appeals orders the Department of Justice to expunge its records showing Demonta Hall was arrested for two felony offenses that were never prosecuted.

Hall was arrested in 2015 for possession of an electronic weapon and in 2017 for sexual assault. In both cases the state quickly decided not to charge him. But at the time of each arrest, Hall also had a bench warrant for an ordinance violation—in 2015, for operating while suspended; in 2017 for disorderly conduct. Neither ordinance violation was connected to the course of conduct leading to the felony arrest, as they had occurred earlier in time; and neither ordinance violation was originally reported to DOJ because a record for that kind of violation is not required under § 165.83(2)(a). After Hall’s arrest, he resolved both ordinance violations in municipal court with a fine. (¶¶7-8).

Here’s the kicker: Even though neither ordinance violation was connected to the felony for which Hall was arrested, DOJ’s records included them as part of the “arrest event” or “cycle” for each felony because they were included on the fingerprint card sent to DOJ to report the felony arrest. So when Hall asked DOJ to expunge the records of his felony arrests under § 165.84(1), DOJ refused because of the ordinance violations which were also part of the “arrest event” and which resulted in a fine or forfeiture: “[t]he arrest event is not eligible for expungement pursuant to [Wis. Stat. §] 165.84(1) because the final disposition did not result in being released without charge or cleared of the offense through court proceedings. All charges on a given fingerprint card must be released or cleared of the offense to qualify for an expungement.” (¶9).

The court of appeals holds that DOJ is wrong, and that it must expunge the record of Hall’s felony arrests. (¶¶16, 27 & n.7).

That’s the bottom line. But we can’t end the discussion there, for the three-judge panel does not agree in all particulars about why Hall prevails or what the remedy is, so here’s the rest of the story:

First, the lead opinion (Judge Reilly) offers a bracing and succinct plain-language reading of § 165.84(1):

¶12     At issue is the final sentence of WIS. STAT. § 165.84(1): “Any person arrested or taken into custody and subsequently released without charge, or cleared of the offense through court proceedings, shall have any fingerprint record taken in connection therewith returned upon request.” DOJ argues that it may not expunge an arrest record under § 165.84(1), “unless the arrested person is released without charge or is cleared of all offenses” contained in what DOJ, in its discretion, has determined to be within an “arrest event.” (Emphasis added.) Hall, in contrast, argues that § 165.84(1) “distinguishes between people who are arrested and fingerprinted as part of that arrest and then ‘subsequently’ convicted for the conduct for which they were arrested and people who are arrested and who are ‘subsequently’ not charged or cleared through court proceedings.”

¶13    DOJ’s interpretation fails to present a plain language interpretation of the statute. DOJ suggests that the term “all” must be read into the statute, such that an individual must be “cleared of all offenses” and that an arrest is actually an “arrest event.” Neither “all” nor “arrest event” appear anywhere in the statute. The statute references “the offense,” not “all offenses,” and the statute pertains to “[a]ny person arrested or taken into custody” without referencing the creation of an “arrest event.”

¶14     The plain language of the statute is clear: “Any person arrested or taken into custody and subsequently released without charge, or cleared of the offense through court proceedings, shall have any fingerprint record taken in connection therewith returned upon request.” Wis. Stat. § 165.84(1). In this case, Hall was arrested on September 21, 2015, and January 11, 2017, for the crimes of possession of an electronic weapon and second-degree sexual assault, respectively. Hall was never charged with either of those crimes. Hall was “released without charge,” and under the plain terms of the statute, he is entitled to expungement of “any fingerprint record taken in connection therewith.” See § 165.84(1).

¶15    The legislature included no language in the statute that defines an “arrest event,” and DOJ has no statutory authority to “cycle” unrelated charges together so as to prevent expungement.4 Hall’s criminal history report contains arrest records of two serious felony crimes that the state recognized within two days that it would not prosecute. Put bluntly, the statute plainly does not allow for an uncharged sexual assault to remain on a person’s public record solely because DOJ decided to “cycle” an unrelated ordinance violation from over a year prior to the current arrest.5


4 DOJ argues that it creates the “cycles” based entirely on the fingerprint card it receives from local law enforcement, which indicates that Hall was arrested for both the felony offenses as well as the ordinance violations. Hall was not arrested for the OWS or the disorderly conduct on September 21, 2015, or January 11, 2017. He had an outstanding warrant for failure to appear for that citation. The arrests, if any, for those ordinance violations took place at the time Hall originally received the citations.

5 This decision does not mandate expungement when a person is arrested for multiple offenses resulting from the same course of conduct and is not charged with or cleared of one (or more) of those offenses, provided all the criminal charges are related.

The footnotes are included because they’re important, too, for they elaborate on a crucial fact about Hall’s ordinance violations—that he wasn’t really “arrested” for the offense at the time he was arrested for the felony, but on a bench warrant for failing to appear on already-charged offenses; that means the ordinance offenses did not (in the language of footnote 5) arise “from the same course of conduct” and so were not “related” to the felony arrest. Had that been the case—that is, if Hall had been arrested for, say, possessing an electric weapon and DC for the same conduct, and was fined on the DC even though the felony was dismissed—the entire “arrest event” would remain on his record.

Next, Judge Neubauer concurs in the lead opinion’s result, but she finds §165.84(1) ambiguous as applied to the circumstances in this case because it’s not clear to her that the reference to being “arrested or taken into custody and subsequently released without charge, or cleared of the offense…” refers only to the felony that was the proximate cause of Hall’s arrest, or to any and all charges, no matter when the occurred, but for which the person may be arrested, even on a warrant. (¶¶17-25). Despite this ambiguity, the purpose of the statute is “quite clear and intelligible” and favors Hall’s interpretation, especially because “DOJ’s proposed application of the statute to deny return because of the prior municipal citation … is too reliant on the use of administrative constructs like ‘arrest events’ and criminal record ‘cycles,’ which are not referenced or even implied within the text or the scheme of this or any other identified statute.” (¶27).

Finally, Judge Gundrum agrees with Judge Reilly’s plain-language reading of the scope of “the last sentence of 165.84(1)” but not with the remedy—the purging of all records of Hall’s felony arrests. He concludes the statute demands only the return to Hall of the fingerprint card associated with each arrest, not to “expungement” of other records of the arrests. (¶¶30-34).

Given this divergence of opinions, it’s hard to imagine the supreme court won’t be weighing in on this topic, so stay tuned.

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