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Conviction under § 947.01 for “violent, abusive and otherwise disorderly conduct” qualified as a “misdemeanor crime of domestic violence”

Robert W. Evans, Jr., v. Wisconsin Dep’t of Justice, 2014 WI App 31, overruled by Doubek v. Kaul, 2022 WI 31; case activity

A conviction for disorderly conduct under § 947.01 may qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), thus depriving the defendant of the right to possess a firearm.

Evans’s application for a permit to carry a concealed weapon was denied after DOJ concluded his 2002 disorderly conduct conviction qualified as a “misdemeanor crime of domestic violence.” (1). As relevant here, 18 U.S.C. § 921(a)(33)(A)(ii) requires that a qualifying crime: 1) have, “as an element,” the use of physical force; and 2) be committed by a person who has at least one of several specified domestic relationships with the victim. United States v. Hayes, 555 U.S. 415, 420, 426 (2009). Both requirements are met here.

First, according to the transcript of the plea hearing, Evans was convicted of disorderly conduct based on a first element specified as “violent, abusive and otherwise disorderly conduct.” (¶12 and n.3(emphasis added). The court concludes that “[b]ecause ‘violent’ conduct necessarily implies the use of physical force, we conclude that Evans’ conviction for disorderly conduct has the use of physical force as an element.” (¶12). There’s an important caveat, however:

¶20      We emphasize that we are not faced with deciding whether Evans’ crime would disqualify him if the record showed that he entered a plea based on an element of violent, abusive, or otherwise disorderly conduct. For that matter, we do not address other situations in which defendants enter pleas or are convicted following trials in which the alternatives are specified in the disjunctive charging that routinely occurs in disorderly conduct cases. In our view, the fact that Evans was convicted based on the element of violent, abusive, and otherwise disorderly conduct makes this a relatively easy case.

The court also rejects Evans’s argument that the different types of conduct listed in § 947.01 are simply different ways of committing the broader element of “disorderly conduct,” which doesn’t have physical force as an element. (¶¶9-11, 14-16). Nor does the court agree that the use of “physical force” under 18 U.S.C. 921 requires the force be directed at someone; it instead concludes the federal cases Evans cites–e.g.United States v. White, 606 F.3d 144, 147-48 (4th Cir. 2010); United States v. Griffith, 455 F.3d 1339, 1341-45 (11th Cir. 2006); United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003)–do not support this claim. (¶¶23-24).

The 2002 conviction also meets the second requirement–that the qualifying crime be committed by a person who has at least one of several specified domestic relationships with the victim. The victim of the crime was his stepdaughter, and § 921(a)(33)(A)(ii) covers “ a person similarly situated to a spouse, parent, or guardian of the victim.” While there is no prior case addressing this precise situation, the court concludes a stepparent is “similarly situated” to a parent under the statute:

¶30      …. The statute is plainly intended to cover a broad range of family and family-like relationships. Excluding stepparents, even those who do not actively “parent” a stepchild, would run contrary to Congress’s intent that the statute be broadly applied. See Woods v. City and County of Denver, 122 P.3d 1050, 1055 (Colo. App. 2005) (stating that “Congress intended the statute to have broad application and enforcement” (citing United States v. Smith, 964 F. Supp. 286 (N.D. Iowa 1997), aff’d, 171 F.3d 617 (8th Cir. 1999))).

Note that Evans’s argument that the analysis of whether the offense includes the use of physical force must be “categorical”–that is, must focus on the elements of the offense, not his actual conduct leading to the conviction. The court assumes without deciding that is correct, but concludes it doesn’t matter because that is how it is conducting the analysis. (¶¶17-19). For more on the “categorical” approach, see our post about Koll v. Dep’t of Justice, 2009 WI App 74, 317 Wis. 2d 753, 769 N.W.2d 69, a previous foray by the court of appeals into this issue. The elements-focused test does not apply to the second requirement regarding the defendant’s relationship with the victim. (¶27, citing Hayes, 555 U.S. at 421).

UPDATE (4/6/14): For more on the meaning of “misdemeanor crime of domestic violence,” be sure to see the Supreme Court’s March 26, 2014, decision in U.S. v. Castleman.

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