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Felon-in-Possession, § 941.29 – Constitutionality

State v. Daniel Lee Rueden, Jr., 2011AP001034-CR, District 4, 6/7/12

court of appeals decision (not recommended for publication); for Rueden: Eileen A. Hirsch, Kaitlin A. Lamb, SPD; case activity

Felon-in-possession, § 941.29, is not unconstitutional either facially or as applied in this instance; State v. Pocian, 2012 WI App 58, deemed controlling.

¶6        We need not discuss the specifics of Rueden’s facial and as-applied challenges because, with respect to both issues, we are bound by our recent Pocian decision.  The following language in Pocian requires rejection of Rueden’s overbreadth challenge:

Under [the intermediate scrutiny] test, a law “is valid only if substantially related to an important governmental objective.”  …

By keeping guns out of the hands of felons, we hold that Wis. Stat. § 941.29 is substantially related to the important governmental objective of enhancing public safety.  As we stated in Thomas, “the legislature determined as a matter of public safety that it was desirable to keep weapons out of the hands of individuals who had committed felonies.”  While Heller mandates that § 941.29 is subject to a higher level of scrutiny than the rational basis test we used in Thomas, the law still survives intermediate scrutiny.

Pocian, 2012 WI App 58, ¶¶11-12 (citations omitted).[3]

¶10      In Pocian, we did not delve into the particular facts of the underlying nonviolent felony when rejecting the as-applied challenge. But in terms of the underlying facts, Rueden is plainly in no better position than Pocian.  Pocian was charged with being a felon in possession of a firearm after he went hunting using his father’s gun, shot two deer, and registered them with the DNR.  Id., ¶4.  Pocian’s prior felony conviction, more than twenty years earlier, had been for uttering about $1,500 in forged checks.  Id., ¶3.  In contrast, Rueden’s prior offense involved going onto another person’s property and stealing from a shed.  Rueden’s gun possession charge involved stealing a handgun and selling it.  If anything, the circumstances here indicate a greater need for public protection.

¶11      In sum, Pocian is controlling and requires rejection of Rueden’s constitutional challenges to his felon-in-possession conviction.

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