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Felon-in-Possession, § 941.29: Constitutionality, Second Amendment

State v. Thomas M. Pocian, 2012 WI App 58 (recommended for publication); for Pocian: Martin E. Kohler, Craig S. Powell, Geoffrey R. Misfeldt; case activity

¶2        In 1986, Thomas M. Pocian was convicted of writing forged checks, a felony.  Twenty-four years later, Pocian was prosecuted under Wis. Stat. § 941.29, which prohibits a felon from possessing a firearm.  Relying on Heller and McDonald, Pocian argues:  (1) Wisconsin’s ban on felons possessing firearms is unconstitutional and (2) even if the ban on felons possessing firearms is not facially unconstitutional, the statute cannot be applied to him because he is a nonviolent felon.  We hold that the ban on felons possessing firearms is constitutional and that the ban extends to all felons.

The Supreme Court itself disparaged the idea that felon-in-possession laws had been thrown into doubt by bringing the 2nd A into the constitutional penumbra of personal rights. The court now essentially ratifies that cautionary note, ¶9. Constitutional rights are subject to reasonable restrictions (shout fire / crowded theater), and barring felons from possessing guns enhances public safety, hence is reasonable, ¶¶10-12. Pre-Heller-McDonald authority came to the same conclusion with respect to Art. I, sec. 25, albeit under a “rational basis” test, State v. Thomas, 2004 WI App 115, ¶¶20, 23, 274 Wis. 2d 513, 683 N.W.2d 497. The court doesn’t do much more now than affirm this prior conclusion under heightened “intermediate scrutiny” analysis. Same wine, new bottle, really. It would be edifying to have some empirical evidence, as opposed to mere judicial fiat, that purports to measure whether this gun ban indeed “is substantially related to” enhanced public safety, ¶12. The court cites none. Perhaps none exists. Perhaps the connection is so self-evident that empirical proof needn’t be adduced. For whatever it’s worth, there doesn’t appear to be a uniform ban on felon’s possession throughout the state, e.g., State v. Carbajal, 2012 COA 34 (Colo. Ct. App. 3/1/12).

The facial challenge is readily dispatched, then. What about an as-applied argument? A month or so after he turned 18, arch-criminal Pocian helped someone pass stolen checks totaling $1500. He served 3 years’ probation, paid restitution and then … nothing in the way of criminal activity (nothing, anyway, revealed by the slip opinion or CCAP; the AG’s brief makes passing reference to a 1988 disorderly conduct conviction – possibly, a local ordinance violation). At least, he didn’t get into trouble again until 2008 when he allegedly shot a couple of deer with his father’s gun, after which he registered the deer with the DNR, and became saddled with this charge. If his first mistake was using a gun, his second was registering the kills – absent which, his gun possession probably wouldn’t have come to anyone’s attention. His reward is this prosecution, which is on interlocutory appeal, and the possibility of hard time. In any event, if you were looking for a sympathetic litigant, Pocian would appear to be your guy. Operative word: “were.”

¶15      The governmental objective of public safety is an important one, and we hold that the legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related to this goal.  While Pocian did not utilize physical violence in the commission of his three felonies, he did physically take his victim’s property.  Additionally, “most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’”  Yancey, 621 F.3d at 684-85.  The legislature has determined that Pocian’s crimes are felonies.  As such, Pocian has legislatively lost his right to possess a firearm.

That’s it, far as analysis goes, which makes the court’s reliance on Yancey a bit of a head-scratcher. Yancey’s offense was possessing a firearm as an unlawful user of marijuana. Categorical ban on such possession was proper, the court held, because “habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.” And, importantly, the court marshaled “studies [which] amply demonstrate the connection between chronic drug abuse and violent crime, and illuminate the nexus between Congress’s attempt to keep firearms away from habitual drug abusers and its goal of reducing violent crime.” You might be thinking, then, that this really has nothing to do with a decades’-old forgery conviction, and you would be correct. But this isn’t all – Yancey goes on to note this qualification: “Thus the gun ban extends only so long as Yancey abuses drugs. In that way, Yancey himself controls his right to possess a gun; the Second Amendment, however, does not require Congress to allow him to simultaneously choose both gun possession and drug abuse.” Pocian’s ban, of course, is absolute. No doubt the court could have mustered other authority to bolster its conclusion. That it saw no need to go farther than inapposite caselaw suggests that it isn’t particularly receptive to expanding second amendment rights.

UPDATE: In Moore v. Madigan, Case Nos. 12-1269 & 12-1788, the 7th circuit invalidated Illinois’s broad ban on public carrying of firearms, employing the same heightened scrutiny the court of appeals employed in this case, ¶11. The Illinois law swept much more broadly than § 941.29 in terms of who is covered; nonetheless, Moore reinforces the claim that restrictions on gun possession cannot be validated without a strong showing for their necessity.

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