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Court of Appeals asks SCOW to review meaning of “misdemeanor crime of domestic violence” under concealed carry license law

Daniel Doubek v. Joshua Kaul, 2020AP704, 3/31/21, District 2, certification granted 6/16/21; decision issued, circuit court reversed, 2022 WI 31; case activity (including briefs)


Are Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, and Leonard v. State, 2015 WI App 57, 364 Wis. 2d 491, 868 N.W.2d 186, “good law” in light of the United States Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014)?

A person who has been convicted of a “misdemeanor crime of domestic violence” can’t possess a firearm under federal law, 18 U.S.C. § 922(g)(9), and, thus, can’t get a permit to carry a concealed weapon under Wisconsin law, § 175.60(3)(b). A “misdemeanor crime of domestic violence” is a misdemeanor that “has, as an element, the use or attempted use of physical force” “committed by a person who has a specified domestic relationship with the victim.” 18 U.S.C. § 921(a)(33)(A); United States v. Hayes, 555 U.S. 415, 426 (2009).

Doubek was convicted of disorderly conduct after pleading to a complaint that alleged he engaged in “violent, abusive and otherwise disorderly conduct” in violation of § 947.01. This disqualifies him from getting a concealed weapon permit because prior Wisconsin cases—Evans and Leonard—hold that the “violent conduct” element of § 947.01 “necessarily implies the use of physical force.” Further, Leonard holds that a defendant’s conduct may be “violent” for purposes of a § 947.01 conviction even if he or she never actually touches, or even attempts to touch, the victim, at least where the defendant used force against an inanimate object (a locked door) during a course of conduct directed at frightening and intimidating the victim. 364 Wis. 2d 491, ¶¶22, 28-31.

The certification explains that Evans and Leonard appear to conflict with the Supreme Court’s interpretation of the controlling federal statute in Castleman, which held that, for purposes of 18 U.S.C. § 921(a)(33)(A) and 18 U.S.C. §922(g)(9), “physical force” requires at least some “offensive touching” of the victim. Castleman, 572 U.S. at 167. (Evans was decided shortly before Castleman; Leonard came after Castleman, but relied on the binding decision in Evans.) Since the court of appeals has no power to overrule its own precedent, it asks the supreme court to address the conflict. We’ll see if the supreme court obliges.

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