On Point

State v. Joshua J. Hams, 2015AP2656-CR, 6/30/16, District 4; (1-judge opinion; ineligible for publication); case activity (including briefs)

Don’t look down! If you do–and stutter nervously in response to questioning–the police have reasonable suspicion to extend a stop of your car for a traffic violation. So says the court of appeals in a decision that veers across the constitutional line and runs into federal case law heading the opposite direction. [continue reading…]

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.” [continue reading…]

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him. [continue reading…]

The answer depends on how you define “polarized” and your reference point. Today’s edition of SCOWstats presents Part 2 of “Wisconsin v. Minnesota–Comparing the Supreme Courts.” Find out whether the Badgers or the Gophers win this battle here.

Questions presented:

Johnson v. United States, 135 S. Ct. 2551 (2015) found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii)(defining “violent felony”) unconstitutionally vague. That clause is identical to the residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)(defining “crime of violence”)

(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

(2) whether Johnson‘s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson. [continue reading…]

State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)

Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm. [continue reading…]

Voisine v. United States, USSC No. 14-10154, 2016 WL 3461559, 579 U.S. ___ (June 27, 2016), affirming United States v. Voisine, 778 F.3d 176 (1st Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. § 922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use … of physical force.” 18 U.S.C. § 921(a)(33)(A). Resolving a question that United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014), left unanswered, the Court, by a 5-to-2 vote, holds that misdemeanor assault convictions for reckless conduct (as contrasted to knowing or intentional conduct) trigger the statutory firearms ban. [continue reading…]