State v. Joseph E. Koll, Jr., 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. § 922(g)(33), and because the charging documents describe a “domestic” relationship between Koll and the victim the gun disqualification is established.
A disqualifying misdemeanor conviction has two separate components, 1) violence in 2) a “domestic” relationship. Koll indisputably lived with his DC victim; his argument was simply that the Gun Control Act requires “convictions for misdemeanor crimes that include, as an element, a domestic relationship,” ¶7. The court easily dispatched that argument: “The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion. Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun,” ¶12. In light of the referenced case, U.S. v. Hayes, 555 U.S. __, No. 07-608 (“Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime”), this conclusion seems beyond challenge. Difficult questions—ignored by the court—remain, however.Given that “domestic” relationship isn’t a formal element, how exactly is it to be established? (The definition is recited in ¶8 of the opinion and more or less comes down to spousal, parental, or guardianship “relationship between aggressor and victim.” You’ll find more in Hayes, and here, from the BATF website.) Koll did not, apparently, challenge the fact that he “cohabited” with the victim, so the matter of proving the connection didn’t have to be sharpened. The concurrence, though, elaborates a bit: “the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report,”¶21. The concurrence cites only an ATF document for the proposition you can look at police reports to ascertain a domestic relationship, but that document doesn’t mention police reports at all. The majority, by contrast, indicates only that the domestic relationship was established by the complaint, e.g., ¶¶4, 7. Despite the concurrence, then, the opinion is not authority for going beyond the complaint. Indeed, a federal Armed Career Criminal Act case, Shepard v. United States, 544 U.S. 13 (2005), specifically holds that in determining the nature of qualifying priors, extrajudicial documents such as police reports are very much off-limits. The inquiry instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (Not controlling, but arguably applicable to this context.) Thus, there’s a decent argument we’re limited to judicial documents in establishing a “domestic” relationship. But if Koll means nothing else, it means that labeling the complaint “non-domestic” does no good at all. It’s a nullity, as the concurrence accurately points out.
So much for the “domestic” relationship requirement. Recall the second requirement, “violence,” which Koll does not appear to have challenged. Perhaps he should have. The complaint, though, plainly “indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off of the vehicle”: why isn’t that conduct “violent”? Well, that isn’t necessarily the right question, which is, rather, whether the predicate offense necessarily involves violent conduct; whether, that is, and very much unlike the domestic relationship inquiry, force must be a formal element. Shepard (again: not controlling but arguably applicable) holds that the offense must be “categorically” violent. The same point is made more recently by Chambers v. U.S., No. 06-11206 (“This categorical approach requires courts to choose the right category. And sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect.”). DC, of course, is sort of an omnibus provision (“or otherwise disorderly conduct”), but only one elemental alternative unequivocally relates to “violent” conduct. The Koll opinion isn’t clear, indeed is totally silent, about whether “violent” conduct was formally alleged against Koll. Maybe it was, maybe it wasn’t. Does “violent” conduct have to be specifically alleged, or is the court saying that DC is necessarily a crime of violence? Well, that question appears to be answered by the Instruction Committee, JI 1900: “Conduct is disorderly although it may not be violent ….” Perhaps, then, Koll’s complaint specifically alleged “violent” conduct. But even if it didn’t, the fact that Koll didn’t raise the argument means that the opinion didn’t precedentially resolve it.
Assuming you’ve read this far, why on earth should you care about any of this? For one thing, the gun ban is a collateral (as opposed to direct) consequence of a conviction, e.g., State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999), so that a) the burden of informing the defendant of the disqualifying effect falls on counsel (rather than the court should the defendant enter a guilty plea); b) the defendant’s belated discovery of this information after conviction will not be a ground to withdraw a guilty plea; c) maybe (it remains to be seen) in some instances some sort of insulation may follow by amending the complaint’s factual allegations and/or stipulating to a different set of facts, or even amending the specific formal element alleged. Perhaps attention ought to be given, as part of any plea-bargaining, to amending the formally charged alternative to something other than “violent” conduct. Thought should be given, as well, to making the contemporaneous record clear that the guilty plea is premised on avoidance of the gun ban—see, in this regard, the self-same Koll’s companion case, State v. Koll, 08-AP1403, 4/8/09) (Koll allowed to withdraw plea to the very DC conviction at issue, on the theory he “was actively misinformed as to a collateral consequence of his plea agreement,” namely the gun ban). Undoubtedly, other implications will occur to you, but the larger point seems pretty clear: this is going to be a recurrent problem.
One last observation. The court of appeals mentions, literally in passing (¶6), that it “must determine whether Koll’s conviction for disorderly conduct prohibits him, under 18 U.S.C. § 921(a)(33)(A), from exercising his constitutional right to bear arms.” Also, ¶12 (“The question before us is whether Koll’s conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms.” We’ll put aside for now whether the 2nd A applies—very much up in the air—rather than Art. I, § 25 which clearly does apply.) These glancing references mark the only times the constitutional right is mentioned. It’s therefore probably fair to assume that while the court may deem the right’s very existence to be non-controversial, the court equally thinks the right completely irrelevant to the analysis. Nothing, then, like a constitutional right observed only with such apparent disdain. Does a fundamental right trigger a requirement that its impairment be accomplished as reasonably narrowly as possible? Someone will have to make the argument before we find out.