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SCOW: Disorderly conduct is not a “misdemeanor crime of domestic violence” that precludes granting a CCW license

Daniel Doubek v. Joshua Kaul, 2022 WI 31, 5/20/22, on certification from the court of appeals; case activity (including briefs)

A person convicted of a “misdemeanor crime of domestic violence” as defined under federal law, 18 U.S.C. § 921(a)(33)(A), is barred from possessing a gun under federal law and, therefore, from getting a license to carry a concealed weapon in Wisconsin, § 175.60(3)(b). A unanimous supreme court holds that a violation of § 947.01(1) is not a misdemeanor crime of domestic violence.

For a misdemeanor to be a crime of domestic violence under 18 U.S.C. § 921(a)(33)(A), it must be a misdemeanor, must have been committed against someone who had a specific domestic relationship to the defendant, and must have, “as an element, the use or attempted use of physical force or the threatened use of a deadly weapon.” Doubek’s DC conviction meets the first two criteria; it’s the last one that is at issue intros case. (¶¶5-6).

Determining whether that last criterion is met involves looking first at the elements of the crime. When the statutory elements set out a list of potential ways to commit the crime—as § 947.01 does—the question is whether the list consists of alternative modes of commission of a single (“indivisible”) crime, or defines multiple (“divisible”) crimes. If the statute is indivisible, the elements in the indivisible crime are compared to the elements required to meet the federal definition (here, use or attempted use of physical force or a deadly weapon). This is the so-called “categorical” approach. If the statute is divisible, then a court has to also look at the alleged facts of the defendant’s charge to see if the crime charged meets the federal elements. This is the so-called “modified categorical” approach. (¶¶7-11).

Citing case law and the jury instructions, the court holds that DC is an indivisible crime. The “violent” behavior mode of being disorderly is simply one way of being disorderly, but doesn’t define a separate offense. (¶¶12-17). Thus, the categorical approach, which looks only at the elements, applies. And because “violent” behavior is but one way of committing the crime, § 947.01 doesn’t make use or attempted use of physical force or a deadly weapon an element that must always be proven. Therefore, DC isn’t a misdemeanor crime of domestic violence, and Doubek’s prior conviction for the offense doesn’t bar him from getting a CCW permit (even though, based on the actual alleged facts of the case, it involved the use or attempted use of physical force or a deadly weapon (¶¶2, 19-21, 23)).

With this holding the court overrules a prior CCW permit case, Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, which employed the modified categorical approach to DC after erroneously concluding violent conduct could be an element, depending on how it was charged. “Evans is not consistent with the analytical framework in recent United States Supreme Court cases and described above.” (¶18). However, it declines to address State v. Leonard, 2015 WI App 57, 364 Wis. 2d 491, 868 N.W.2d 186, which relied on Evans to hold DC was a divisible statute. (¶2 n.4). Nonetheless, with the decision in this case Leonard is clearly moribund, if not outright legally dead.

A concurring justice (Karofsky) agrees with the majority’s analysis of the legal issue but urges the legislature to amend the statutes to preclude persons with convictions like Doubek’s from getting a CCW license, and offers suggestions as to how to do that. (¶¶23-29).

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{ 1 comment… add one }
  • Peter Heyne June 6, 2022, 3:32 pm

    As interesting side note from the concurrence:

    ¶24 states: “And here, that misdemeanor qualifies as an act of domestic abuse under Wisconsin law because it involved: (1) a physical act——raising a 2×4 above his head while telling his wife she “was dead” and that he’d “let her have it”; (2) against his wife; and (3) that may have caused her to reasonably fear imminent intentional infliction of physical pain or injury.2″

    Footnote 2 states: ” ‘Domestic abuse’ is defined, in part, as a ‘physical act’ ‘engaged in by an adult person against his . . . spouse’ that ‘may cause the other person reasonably to fear imminent engagement in,’ among other things, the ‘[i]nentional infliction of physical pain [or] physical injury.’ Wis. Stat.
    § 968.075(1)(a). This opinion uses ‘domestic abuse’ and ‘domestic violence’ interchangeably.”

    This citation to the mandatory DV arrest statute § 968.075(1)(a) is important, because there is an open question what are the proper criteria for the DV surcharge. More than the $100 per charge assessment, this issue really matters because two DV surcharges in 2 years sets up the very punitive DV Repeater. §
    939.621

    Is it the DV arrest statute–and thus, 1 of the 4 applicable criteria (the concurrence finds that the fourth criterion applies, basically the tort of assault), requiring that the conduct be physically violent, not just verbal?

    Or is it just that the crime is in the litany of eligible crimes under the DV surcharge statute 973.055(1)(a)1. (thus, even a verbal-only DC would qualify)?

    The former–§ 968.075(1)(a)–makes more sense. The Wisconsin Supreme Court has repeatedly referenced § 968.075(1)(a) when talking about crimes of domestic abuse. E.g., State v. Lagrone, 2016 WI 26, ¶ 7, 368 Wis. 2d 1, 878 N.W.2d 636 (“Each count carried the domestic abuse modifier. See Wis. Stat. § 968.075(1)(a)”).

    If the cops can arrest you for DV, then if the physical violence is proven at trial or admitted to as part of a plea, you should be subject to the DV surcharge. If not (e.g., no violence), then why the surcharge?

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