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SCOW accepts case raising issue of using lawful gun ownership as an aggravating sentencing factor

State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

The supreme court just recently rejected an as-applied challenge to Wisconsin’s statute prohibiting felons from possessing a firearm brought by a person convicted over a decade earlier for failure to pay child support. There were two lengthy dissents in that case, as we noted here. This interesting case raises another, more subtle issue about the scope of the U.S. Supreme Court’s decisions reinvigorating the Second Amendment.

Dodson pleaded guilty to second degree intentional homicide for shooting a person he thought was driving a car that had rear-ended him, driven away, and then returned to pursue him. The mitigating factor that induced the state to charge second as opposed to first degree intentional homicide was Dodson’s unnecessary defensive force. Wis. Stat. § 940.01(2)(b). Dodson had a permit to carry the concealed pistol he used to shoot the victim, but the sentencing court said that obtaining the concealed-carry permit and the gun changed and “distorted” Dodson’s view of the world and his fellow citizens, turning other people into perceived threats, thereby implying that Dodson’s exercise of his right to bear arms put him on the a path toward violent behavior.

The issue about the sentencing court’s decision in this case has two facets. The first, broader issue is whether it is ever proper for the court to consider a person’s lawful exercise of the fundamental right to bear arms as an aggravating factor at sentencing. The second, case-specific issue is whether, assuming lawful gun ownership is never a proper sentencing factor, the court actually used the defendant’s lawful gun possession as an aggravating factor in imposing sentence. In this case the court of appeals assumed, without deciding, that it is improper to punish a defendant for legally exercising the right to bear arms, but found the circuit court didn’t do that. Instead, the court of appeals held, the circuit court could, based on its experience, make conclusions about how gun ownership changes peoples’ attitudes, and that in any event the sentencing court’s remarks about Dodson were directly relevant to the issue of his use of unnecessary defensive force.

The supreme court will now attempt to answer both (a) the broad question of if and when lawful—indeed, constitutionally protected—conduct can be an aggravating sentencing factor; and, if it can’t, then (b) the more specific question of how to tell when the sentencing court relied on that kind of improper factor in imposing sentence.

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