Wisconsin Supreme Court unanimously strikes down concealed carry restriction

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Any form of political unanimity is rare these days, and especially so when we’re talking about guns.  But in a 7-0 ruling today, the Wisconsin State Supreme Court struck down a provision in state law that barred all those convicted of the misdemeanor crime of disorderly conduct from obtaining a concealed carry license.

The case was brought by a man named Daniel Doubek, who successfully received a concealed carry license in 2015, only to have it revoked after a 2019 audit found a 1993 conviction for disorderly conduct; a crime that stemmed after he broke into his estranged wife’s home and threatened her with a 2×4.

The court found that disorderly conduct isn’t a misdemeanor crime of domestic violence under federal law and therefore doesn’t disqualify a person from holding a concealed carry license. Justice Jill Karofsky, a member of the court’s liberal minority, concurred but in a separate opinion called on legislators to close a “dangerous loophole” that will allow domestic abusers to carry concealed weapons.

“Though legally correct, this result is as nonsensical as it is dangerous,” Karofsky wrote. “When a domestic abuse perpetrator, who has engaged in threats to kill or any other type of domestic violence, has access to a gun, the lethality risk for his victim increases significantly.”

… John Monroe, a Georgia-based lawyer who specializes in gun rights cases, represented Doubek. He said he was pleased with the decision.

He acknowledged domestic abuse is a serious problem, but said if prosecutors don’t want violent abusers to have concealed weapons they should charge them with violent offenses like battery.

That’s absolutely right. Domestic violence is serious. Disorderly conduct, frankly, may or may not be all that serious. We should be treating serious crimes as serious crimes rather than immediately looking to plea bargain them down to lesser offenses for the sake of expediency, which is what happens in the vast majority of cases (it’s unclear if Doubek was originally charged with disorderly conduct or a more serious offense). Of course that’s an entirely different kind of criminal justice reform than what we usually hear about, because bringing more cases to trial would also require a dramatic expansion of the current system; from judges, prosecutors, and public defenders down to bailiffs and support staff. Between the price tag and the expansion of the police power, there aren’t many politicians on either side of the aisle willing to take up this particular quixotic task.
But the unwillingness of the political class to actually take on a difficult issue is no justification for those same lawmakers to cast a wider net over who’s prohibited by law from exercising their civil rights, especially when, as in this case, the state so clearly overstepped its authority.

Writing for the majority, Justice Brian Hagedorn said a disorderly conduct conviction in Wisconsin can’t disqualify someone from holding a concealed carry license in the state.

“In short, the crime of disorderly conduct … does not require the use or attempted use of physical force or the threatened use of a deadly weapon as an element, even if that conduct could serve as the basis for a disorderly conduct conviction,” Hagedorn wrote. “It is therefore not a misdemeanor crime of domestic violence under federal law.”

In other words, prosecutors should have charged him with a crime that took into account his alleged holding of a board while making threats against his estranged wife. Battery, as Monroe suggested, seems to have been the best bet, though there’s no guarantee of course that a jury would have convicted him on that charge, or that Doubek would have pled guilty to it. But the law is clear, as Hagedorn writes:

The key here is that the misdemeanor must have either the force component or the deadly weapon component as an essential element of the crime; this does not depend on the facts underlying any specific conviction. Hayes, 555 U.S. at 421.

Under this “categorical approach”——as the Court has termed it——the focus is “solely on whether the elements of the crime of conviction sufficiently match the elements” of the relevant federal statute, “while ignoring the particular facts of the case.” Mathis v. United States, 579 U.S. 500, 504 (2016).

The question is thus whether the elements of the statutorily defined misdemeanor itself, apart from the facts giving rise to it, include the use of physical force, the attempted use of physical force, or the threatened use of a deadly weapon.

Doubek isn’t disqualified under federal law from possessing a gun because the state statute he was convicted under doesn’t meant the federal definition of a domestic violence misdemeanor. It’s that simple.

But even though this was a unanimous decision, there was a separate concurring opinion from Justice Jill Karofsky, a liberal on the court who said that it’s up to Wisconsin lawmakers to fix what she calls a “dangerous loophole.” She even laid out three specific legislative action items.

First, the Wisconsin legislature could enact a threatened-battery criminal statute that included an element of “threatened use of a deadly weapon.”This would be consistent with the “misdemeanor crime of domestic violence” definition in 18 U.S.C. § 921(a)(33).

Second, the legislature could avoid that federal definition altogether by criminalizing “domestic abuse,”making it a stand-alone crime as many states have done. The legislature could then add misdemeanants convicted under the new domestic abuse criminal statute to Wis. Stat. § 941.29(1m)‘s list of persons barred from possessing a gun.

Third, the legislature could pass a statute authorizing a court to make a civil determination as to whether the facts underlying a conviction constitute an act of domestic violence.

Don’t be surprised if Wisconsin Democrats try to make this a campaign issue between now and November. Republicans have been pushing to both expand the existing carry system as well as making Wisconsin a permitless carry state, though Democratic Gov. Tony Evers has quashed every bill that’s arrived on his desk. With beleaguered Democrats looking for something to motivate their base, expect a lot of talk about anti-women and pro-domestic abuser Republican candidates if there’s not a movement towards something that resembles one of Karofsky’s suggestions in the coming weeks.