Court: Certain abusers can get concealed carry permits
Justices urge Legislature to close loophole in statute’s language
Wisconsin’s Supreme Court on Friday made it easier for residents convicted of domestic violence to continue carrying guns, overruling a 2014 Court of Appeals decision.
In a case from Brown County, the court unanimously reversed a circuit judge’s ruling that a man’s conviction for disorderly conduct counted as a domestic violence misdemeanor under federal law that would then prohibit gun possession.
The high court found that, while the offense was domestic and violent, it’s not the facts that matter, but the nature of Wisconsin’s disorderly conduct statute. That law allows conviction for a variety of actions, but since violence is not a required element, it doesn’t match the federal definition.
In a concurring opinion, one justice called the conclusion, while legally correct, “as nonsensical as it is dangerous,” and urged the Legislature to close a loophole the court can not.
Attorney General Josh Kaul, whose office argued the case to the court, said, “This decision means that more perpetrators of domestic violence will be able to possess firearms and get concealed carry licenses.”
“As Justice (Jill) Karofsky’s concurrence explains,” Kaul continued, “this result is dangerous, especially for victims of domestic violence. The Legislature must act promptly to close this loophole and protect public safety.”
End Domestic Abuse WI said in a statement, “The Court’s recent decision runs in direct contradiction to what is identified by experts nationally and in our state to keep domestic violence victims and survivors safe.”
CCW audit found conviction
In 1993, Daniel Doubek, 56, was convicted of misdemeanor disorderly conduct after he broke into his estranged wife’s Door County trailer armed with a two-by-four and threatened to kill her, according to the ruling.
In 2016, he applied for and received a permit to carry a concealed weapon from the state Department of Justice. By that year, the DOJ had issued more than 300,000 CCW permits since the law allowing concealed weapons passed in 2011. As of now, that number has grown to more than 460,000.
Three years later, a DOJ audit of the CCW program revealed Doubek’s 1993 conviction and revoked the permit. He sued.
Even under Wisconsin’s liberal concealed carry law, someone who is prohibited by federal law from possessing a gun is not supposed to qualify for a permit.
The federal law in question, known as the Lautenberg Amendment, says anyone convicted of a “misdemeanor crime of domestic violence” can’t possess firearms. Some gun rights advocates have challenged the reach of the law ever since.
John Monroe, a Georgia gun rights lawyer who has handled dozens of cases in Wisconsin as well, represented Doubek. He said Friday’s ruling will likely affect thousands of people who may have been denied a permit, had it revoked like his client, or been blocked from buying a firearm.
Wisconsin’s disorderly conduct law doesn’t include a force or deadly weapon component. The U.S. Supreme Court has said that’s what counts when analyzing whether the state conviction is a prohibiting conviction under the federal law, not the facts underlying the conviction.
“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,“Justice Brian Hagedorn wrote in the majority opinion.
Writing for the court, Hagedorn said Wisconsin’s law lists several ways someone can be disorderly. Those include physical force or threatened use of a weapon, but those are only among the options, and therefore not a required element of the crime.
“Nothing in the grammar or structure of the list separates the listed behaviors in a way that would suggest it codifies seven different crimes,” he said. “The most straightforward understanding of (the statute) is that it provides a non- exhaustive list of means by which the single crime of disorderly conduct may be committed.”
Friday’s decision specifically overrules a 2014 decision by the Court of Appeals that upheld the denial of a CCW permit over a disorderly conduct conviction related to domestic violence.
In the concurring opinion, Karofsky cited the “staggering” numbers around domestic violence and guns: a victim is five times more likely to be killed by her abuser if he has access to firearms, and an average of 70 women are fatally shot in the U.S. every month during domestic violence.
Karofsky suggested three ways the Legislature could close the current loophole, including making “domestic violence” a “stand-alone crime as many states have done.”