Scot Van Oudenhoven v. Wisconsin Department of Justice ( 2024 )

2024 WI App 38COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2023AP70-FT
†Petition for Review Filed
Complete Title of Case:
SCOT VAN OUDENHOVEN,
PETITIONER-APPELLANT,†
V.
WISCONSIN DEPARTMENT OF JUSTICE,
RESPONDENT-RESPONDENT.
Opinion Filed: June 4, 2024
Submitted on Briefs: March 13, 2023
Oral Argument:
JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of John Monroe, Dawsonville, Georgia.
Respondent
ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on
the brief of Joshua L. Kaul, attorney general, and Brian P. Keenan,
assistant attorney general.
2024 WI App 38COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 4, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2023AP70-FT Cir. Ct. No. 2022CV580
STATE OF WISCONSIN IN COURT OF APPEALS
SCOT VAN OUDENHOVEN,
PETITIONER-APPELLANT,
V.
WISCONSIN DEPARTMENT OF JUSTICE,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Winnebago County:
TERESA S. BASILIERE, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 GILL, J. Scot Van Oudenhoven appeals an order affirming a
decision of the Wisconsin Department of Justice (“DOJ”) denying his application
No. 2023AP70-FT
to purchase a “handgun”1 in Wisconsin. The DOJ reasoned that because
Van Oudenhoven had been convicted of a Wisconsin crime related to domestic
violence, the purchase would violate 18 U.S.C. § 922(g)(9), which states that an
individual “who has been convicted in any court of a misdemeanor crime of
domestic violence” cannot “possess or … receive any firearm.” The DOJ reached
this conclusion even though Van Oudenhoven’s relevant conviction was expunged
under Wisconsin law pursuant to WIS. STAT. § 973.015(1m).
¶2 On appeal, Van Oudenhoven argues that the DOJ erroneously
interpreted the applicable laws.2 First, Van Oudenhoven asserts that the DOJ did
not have the authority to deny his handgun purchase under 18 U.S.C. § 922(g)(9).
Second, Van Oudenhoven asserts that even if the DOJ had such authority, that
statute did not apply to his misdemeanor conviction because the conviction was
expunged. See 18 U.S.C. § 921(a)(33)(B)(ii) (“A person shall not be considered to
1
For purposes of WIS. STAT. § 175.35(2g)(c)4. (2021-22), the relevant Wisconsin statute,
a “handgun” is defined as “any weapon designed or redesigned, or made or remade, and intended
to be fired while held in one hand and to use the energy of an explosive to expel a projectile through
a smooth or rifled bore.” Sec. 175.35(1)(b) (2021-22). For purposes of 18 U.S.C. § 922(g)(9), a
“firearm” is defined as either “(A) any weapon … which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such
weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C.
§ 921(a)(3). Van Oudenhoven does not argue on appeal that his Wisconsin handgun fails to meet
the definition of a firearm under federal law.
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This is an expedited appeal under WIS. STAT. RULE 809.17.
2
No. 2023AP70-FT
have been convicted of [a misdemeanor crime of domestic violence] if the
conviction has been expunged or set aside.”).3
¶3 We conclude that federal law authorizes the DOJ to deny an
individual’s firearm purchase request in Wisconsin. Under federal law, which was
the basis for denying Van Oudenhoven’s purchase at issue in this case, the DOJ’s
authority to deny a firearm purchase in Wisconsin is conferred to it by the federal
government under 28 C.F.R. §§ 25.2 and 25.6(g)(2) (2023).4 The DOJ must deny a
firearm purchase if the “receipt of a firearm by a prospective transferee would
violate 18 U.S.C. [§ ]922 or state law.” Sec. 25.6(g)(2). We further conclude that
Van Oudenhoven was convicted of a misdemeanor crime of domestic violence as
that term is defined by federal law. See § 922(g)(9); 18 U.S.C. § 921(a)(33)(A)(ii).
¶4 We also conclude that Van Oudenhoven’s misdemeanor conviction
was not “expunged or set aside” as those terms are used in 18 U.S.C.
§ 921(a)(33)(B)(ii). As other jurisdictions have articulated, the terms “expunged or
set aside” in § 921(a)(33)(B)(ii) must be construed synonymously, thereby requiring
the “state procedure to completely remove all effects of the conviction at issue.”
See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1245 (10th Cir.
2008). Consistent with our state supreme court’s decision in State v. Braunschweig,
2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, expungement pursuant to WIS.
STAT. § 973.015(1m) does not “completely remove all effects” of a conviction
because the underlying conviction remains valid. See Braunschweig, 384 Wis. 2d
3Van Oudenhoven does not challenge the DOJ’s decision on Second Amendment grounds
or on jurisdictional grounds. See U.S. CONST. amend. II; 18 U.S.C. § 922(g)(9) (including an
element that the firearm in question must have been shipped or transported in interstate or foreign
commerce).
4
All references to the Code of Federal Regulations are to the 2023 version unless
otherwise noted.
3
No. 2023AP70-FT
742, ¶22. Section 973.015(1m) “merely deletes the evidence of the underlying
conviction from court records.” Braunschweig, 384 Wis. 2d 742, ¶22. We
therefore affirm the circuit court’s order upholding the DOJ’s decision denying Van
Oudenhoven’s handgun purchase.
BACKGROUND
¶5 The relevant underlying facts are not in dispute. Van Oudenhoven
was convicted in Calumet County case No. 1994CM113 of misdemeanor battery as
an act of domestic violence against a woman with whom he shares a child. See WIS.
STAT. §§ 940.19(1), 968.075(1)(a).5 In 2019, the Calumet County Circuit Court
granted Van Oudenhoven’s petition for expungement of the conviction.6 The order
stated that the clerk of court “is ordered to expunge the court’s record of the
conviction.”
¶6 In 2022, Van Oudenhoven attempted to purchase a handgun in
Wisconsin. After searching Van Oudenhoven’s record in a state database, the
DOJ’s Crime Information Bureau Firearms Unit (“Unit”) denied the purchase based
upon Van Oudenhoven’s misdemeanor battery conviction. Van Oudenhoven
sought review of that denial pursuant to WIS. ADMIN. CODE § Jus 10.08(2) (Aug.
5
The relevant portions of these statutes have not changed since 1994.
6
It is unclear from the record why Van Oudenhoven’s 1994 conviction was expunged in
2019 insomuch as “if a circuit court is going to exercise its discretion to expunge a record, the
discretion must be exercised at the time of the sentencing proceeding.” See State v. Matasek, 2014
WI 27, ¶6, 353 Wis. 2d 601, 846 N.W.2d 811. However, the DOJ does not challenge the validity
of the expungement, and we therefore will not address this issue further.
4
No. 2023AP70-FT
2012),7 and the director of the Unit sustained the earlier decision denying the
handgun purchase.
¶7 Thereafter, Van Oudenhoven appealed the director’s decision to the
administrator of the DOJ’s Division of Law Enforcement Services.8 See WIS.
ADMIN. CODE § Jus 10.09(1). The DOJ sustained the director’s denial of the
handgun purchase based on Van Oudenhoven’s misdemeanor conviction. The DOJ
reasoned that WIS. STAT. § 175.35 and WIS. ADMIN. CODE ch. Jus 10 require the
agency to “consider state and federal law when conducting a firearms restrictions
search.” According to the DOJ, under federal law, the agency was required to deny
the purchase because Van Oudenhoven was convicted of a “misdemeanor crime of
domestic violence” notwithstanding the fact that Van Oudenhoven’s conviction was
expunged under Wisconsin law. See 18 U.S.C. §§ 922(g)(9), 921(a)(33)(B)(ii).
Relying on our supreme court’s holding in Braunschweig, the DOJ stated that while
Van Oudenhoven’s misdemeanor conviction was expunged, the conviction still
counted under federal law so as to prohibit the purchase because the expungement
did not invalidate the underlying conviction.
¶8 Van Oudenhoven filed a petition for judicial review in Winnebago
County Circuit Court.9 See WIS. STAT. § 227.52. Following briefing from the
parties, the court sustained the DOJ’s decision. This appeal follows.
DISCUSSION
7
All references to WIS. ADMIN. CODE ch. Jus 10 are to the August 2012 register unless
otherwise noted.
8
We refer to the administrator’s decision as the DOJ’s decision generally.
9
Van Oudenhoven is a resident of Winnebago County. See WIS. STAT. § 227.53(1)(a)3.
This appeal is venued in this court pursuant to WIS. STAT. § 752.21(2).
5
No. 2023AP70-FT
¶9 “On a WIS. STAT. ch. 227 appeal, we review the decision of the
agency, not the circuit court.” Myers v. DNR, 2019 WI 5, ¶17, 385 Wis. 2d 176,
922 N.W.2d 47. Unless we determine there is “a ground for setting aside,
modifying, remanding or ordering agency action or ancillary relief under a specified
provision of this section, [we] shall affirm the agency’s action.” WIS. STAT.
§ 227.57(2). The facts of this case are undisputed, so we address only questions of
law—including federal and state statutory interpretation—which we review de
novo, while affording “due weight” to “the experience, technical competence, and
specialized knowledge of the agency involved.” See § 227.57(10), (11); Tetra Tech
EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21; Doubek v.
Kaul, 2022 WI 31, ¶3, 401 Wis. 2d 575, 973 N.W.2d 756.
¶10 Statutory interpretation begins with the statute’s language, which “is
given its common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or special definitional
meaning.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language “in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46.
I. The DOJ has the authority to deny a Wisconsin-based firearm purchase
that would violate 18 U.S.C. § 922.
¶11 We first conclude, contrary to Van Oudenhoven’s arguments on
appeal, that the DOJ is authorized by federal law to deny a Wisconsin-based firearm
purchase due to a prospective buyer’s conviction for a misdemeanor crime of
domestic violence. As we will explain, the DOJ has been delegated by the federal
6
No. 2023AP70-FT
government as the federal law liaison for firearm purchases in Wisconsin. Here, the
DOJ denied Van Oudenhoven’s purchase pursuant to federal law, not state law.
A. Handgun purchases in Wisconsin under state law
¶12 At the state level, “[t]he purchase of handguns in Wisconsin is
regulated by WIS. STAT. § 175.35, which provides the DOJ with authority to
promulgate rules regarding the transfer of such firearms.” See Moran v. DOJ, 2019
WI App 38, ¶13, 388 Wis. 2d 193, 932 N.W.2d 430. Pursuant to that authority, a
handgun dealer must obtain from a prospective handgun buyer a completed
notification form, which the dealer then forwards to the DOJ. WIS. ADMIN. CODE
§ Jus 10.06(2)(a)1. After receiving the form, the DOJ must determine whether the
purchaser is prohibited under state law from possessing a firearm. See Moran, 388
Wis. 2d 193, ¶13; § Jus 10.06(2)(b), (c). To accomplish that task, the DOJ must
search the purchaser’s “state criminal history record and the national criminal
history record maintained by the” Federal Bureau of Investigation (FBI). Sec. Jus
10.06(2)(a)(2), (b); WIS. ADMIN. CODE § Jus 10.03(11).
¶13 WISCONSIN STAT. § 175.35(2g)(c)4. requires the DOJ to notify a
dealer after receiving information from the records search as follows:
a. If the search indicates that the transferee is prohibited
from possessing a firearm under [WIS. STAT. §] 941.29,
the [DOJ] shall provide the firearms dealer with a unique
nonapproval number.…
b. If the search indicates that the transferee is not prohibited
from possessing a firearm under [WIS. STAT. §] 941.29,
the [DOJ] shall provide the firearms dealer with a unique
approval number.
c. If the search indicates that it is unclear whether the
person is prohibited under state or federal law from
possessing a firearm and the [DOJ] needs more time to
make the determination, the [DOJ] shall make every
7
No. 2023AP70-FT
reasonable effort to determine whether the person is
prohibited under state or federal law from possessing a
firearm and notify the firearms dealer of the results as
soon as practicable but no later than 5 working days after
the search was requested.
Thus, § 175.35(2g)(c)4.a.-c. outlines the Wisconsin-specific standards for
approving or denying a handgun purchase, which “turn[] upon whether the
prospective purchaser is prohibited from possessing a firearm under … § 941.29.”
See Moran, 388 Wis. 2d 193, ¶14.
¶14 WISCONSIN STAT. § 175.35(2g)(c)4.c. also recognizes the DOJ’s
authority to deny a handgun purchase pursuant to federal law, although the statute
does not specifically outline that authority. See Moran, 388 Wis. 2d 193, ¶14.
Instead, the DOJ’s authority to deny a handgun—specifically, a “firearm”—
purchase under federal law is, of course, governed by federal law.
B. Firearm purchases in Wisconsin under federal law
¶15 The National Instant Criminal Background Check System (NICS) was
established by the federal government pursuant to the Brady Handgun Violence
Prevention Act. See 34 U.S.C. § 40901(b)(1); 28 C.F.R. § 25.2; Printz v. United
States, 521 U.S. 898, 902 (1997). The NICS, operated by the FBI, is used to
determine “whether receipt of a firearm by a prospective transferee would violate
[18 U.S.C. § 922] or State law.” Sec. 40901(b)(1); § 25.2. Prior to selling a firearm
to a potential buyer, a federal firearm licensee (FFL)10 must contact the NICS
Operations Center or a “Point of Contact” (POC) to search a database known as the
NICS Index. See 28 C.F.R. § 25.6(b)-(d).
10
An FFL is a “person licensed by the [Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF)] as a manufacturer, dealer, or importer of firearms.” 28 C.F.R. § 25.2.
8
No. 2023AP70-FT
¶16 A POC is a “state or local law enforcement agency serving as an
intermediary between an FFL and the federal databases checked by the NICS.” 28
C.F.R. § 25.2. Since 1998, the DOJ has been the POC for Wisconsin handgun
purchases. Therefore, in Wisconsin, an FFL must contact the DOJ to initiate an
NICS background check for such purchases. See 28 C.F.R. § 25.6(d).
¶17 “Upon receiving a request for a background check from an FFL, a
POC will,” among other things, “[t]ransmit the request … to the NICS.” 28 C.F.R.
§ 25.6(e). The NICS will conduct a search of the NICS Index and notify the POC
of the search results. Sec. 25.6(f). “POCs may also conduct a search of available
files in state and local law enforcement and other relevant record systems ….”
Sec. 25.6(e).
¶18 “[B]ased on the response(s) provided by the NICS, and other
information available in the state and local record systems, a POC will” “[n]otify
the FFL that the transfer may proceed, is delayed pending further record analysis,
or is denied.” 28 C.F.R. § 25.6(g)(2). “Denied” means “denial of a firearm transfer
based on a[n] NICS response indicating one or more matching records were found
providing information demonstrating that receipt of a firearm by a prospective
transferee would violate 18 U.S.C. [§ ]922 or state law.”11 28 C.F.R. § 25.2(emphasis added).
¶19 In short, federal statutory and regulatory authority requires the DOJ,
as the Wisconsin POC, to determine whether a handgun purchase would violate
either state or federal law. Accordingly, pursuant to the plain language of 28 C.F.R.
§ 25.2, the DOJ was permitted to deny Van Oudenhoven’s purchase if the purchase
11
The record in this case does not include the NICS communication to the POC—i.e., the
DOJ. See 28 U.S.C. § 25.6(f).
9
No. 2023AP70-FT
would violate 18 U.S.C. § 922. See Lynch v. Florida Dep’t of Law Enf’t, 330 So.3d
140, 141 (Fla. Dist. Ct. App. 2021) (explaining that Florida’s POC must determine
whether a potential firearm buyer is prohibited from purchasing a firearm under
§ 922(g)).
C. “[M]isdemeanor crime of domestic violence”
¶20 Here, as Van Oudenhoven implicitly concedes, his firearm purchase
would have violated 18 U.S.C. § 922(g)(9), which states that an individual “who
has been convicted in any court of a misdemeanor crime of domestic violence”
cannot possess or receive any firearm.12 A “misdemeanor crime of domestic
violence,” as that term is used in § 922(g)(9), is defined as an offense that is a
misdemeanor under state law and has an element of “the use or attempted use of
physical force … by a person with whom the victim shares a child in common.” 18
U.S.C. § 921(a)(33)(A)(ii).
¶21 Van Oudenhoven was convicted of battery as an act of domestic
abuse. The police report underlying the conviction, which the DOJ reviewed when
it denied the purchase, states that the victim and Van Oudenhoven had a child
together at the time of the offense. See WIS. STAT. §§ 940.19(1), 968.075(1)(a)1.;
Kaul, 401 Wis. 2d 575, ¶6 (whether the domestic violence element in 18 U.S.C.
§ 921(a)(33)(A)(ii) is satisfied “depends on the facts underlying the conviction, not
12
Federal law dictates that a denial of a firearm purchase is appropriate where the “receipt
of a firearm by a prospective transferee would violate 18 U.S.C. [§ ]922 or state law.” 28 C.F.R.
§ 25.2 (emphasis added). Therefore, the question for the DOJ in this case was whether
Van Oudenhoven’s successful purchase of the firearm “would violate” § 922(g)(9). If
Van Oudenhoven purchased the firearm, he would possess and receive the firearm, thus violating
§ 922(g)(9).
10
No. 2023AP70-FT
the elements of the charged misdemeanor”). Further, the record demonstrates that
Van Oudenhoven used or attempted to use physical force.13
¶22 Thus, the DOJ did not erroneously interpret the law when it
determined that Van Oudenhoven used physical force against an individual with
whom he shares a child, and, accordingly, barring certain exceptions that we address
in the next section, he was clearly prohibited from possessing or receiving a firearm
pursuant to 18 U.S.C. § 922(g)(9).
II. Van Oudenhoven is barred from possessing a firearm under federal law
despite the expungement of his misdemeanor conviction for a crime of
domestic violence.
¶23 The foregoing analysis does not end the inquiry, however, because
[a] person shall not be considered to have been convicted of
[a misdemeanor crime of domestic violence] if the
conviction has been expunged or set aside, or is an offense
for which the person has been pardoned or has had civil
rights restored (if the law of the applicable jurisdiction
provides for the loss of civil rights under such an offense)
unless the pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport,
possess, or receive firearms.
See 18 U.S.C. § 921(a)(33)(B)(ii) (emphasis added). Van Oudenhoven’s conviction
in Calumet County case No. 1994CM113 was expunged in 2019, and the
expungement certificate did not “expressly provide[]” that Van Oudenhoven was
13
WISCONSIN STAT. § 940.19(1) includes an element that an individual inflicts bodily
harm to another with the intent to cause bodily harm to that person without the consent of the
person. See WIS. STAT. § 940.19(1); WIS JI—CRIMINAL 1220 (2015); Doubek v. Kaul, 2022 WI
31, ¶7, 401 Wis. 2d 575, 973 N.W.2d 756 (whether the use of force element in 18 U.S.C.
§ 921(a)(33)(A)(ii) is met depends “‘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’” (citation omitted)).
11
No. 2023AP70-FT
prohibited from possessing or receiving a firearm. Under these circumstances, Van
Oudenhoven asserts that his misdemeanor conviction was “expunged or set aside”14
under § 921(a)(33)(B)(ii). We agree with the DOJ, however, that Van
Oudenhoven’s conviction was not “expunged or set aside” as those terms are used
in § 921(a)(33)(B)(ii).
A. “[E]xpunged or set aside”
¶24 We must now determine the meaning of “expunged or set aside” to
ascertain whether Van Oudenhoven was prohibited from purchasing a firearm in
Wisconsin. Van Oudenhoven first argues, without citation to any authority aside
from 18 U.S.C. § 921(a)(33)(B)(ii), that “[b]ecause the federal statute contains an
exception for expunged convictions, federal law is not dependent on the effect under
state law of the expungement. The federal statute does not require that the state
expungement have any particular effect on the conviction as a matter of state law.”
This assertion has no basis in law. While the underlying misdemeanor crime of
domestic violence, and any subsequent state procedures such as expungement, are
defined by state law, federal law dictates what constitutes a “conviction” under
§ 921(a)(33)(B)(ii). See Logan v. United States, 552 U.S. 23, 27-28 (2007)
(discussing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 114-15 (1983), and
the congressional amendments to § 921 made following that decision). Therefore,
for a state conviction that has been expunged not to count as a “conviction,” it must
meet the meaning of “expunged or set aside” in § 921(a)(33)(B)(ii).
¶25 The terms “expunged” and “set aside” are not defined by federal
statute. Van Oudenhoven contends that the United States Supreme Court in Logan
14
Van Oudenhoven does not contend that he was “pardoned or has had civil rights
restored.” See 18 U.S.C. § 921(a)(33)(B)(ii).
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No. 2023AP70-FT
“announced a common understanding of ‘expungement,’ ‘set-aside,’ ‘pardoned,’
and ‘civil rights restored’” when the Court stated, “Each term describes a measure
by which the government relieves an offender of some or all of the consequences of
his [or her] conviction.” See Logan, 552 U.S. at 32 (emphasis added). Based on
that language, Van Oudenhoven appears to assert that “expunged or set aside”
means the government relieves a former offender of “some” of the consequences of
his or her conviction.
¶26 We disagree that the Court in Logan was defining each term with
specificity or that it stated an expunged or set aside conviction only requires “some”
of the consequences of a conviction to be vacated. Rather, the Court was simply
identifying the general differences between those terms and a defendant who retains
his or her civil rights and is “simply left alone.” See id. at 32, 37 (concluding that
an individual cannot have his or her civil rights “restored” if he or she was never
deprived of them to begin with). In addition, and as we will explain, the plain
meaning of “expunged or set aside” is better described as “a measure by which the
government relieves an offender of … all of the consequences of his conviction,”
rather than “some” consequences. See id. at 32 (emphasis added).
¶27 Courts interpreting 18 U.S.C. § 921(a)(33)(B)(ii) have consistently
construed “expunged” and “set aside” synonymously so as to require the “state
procedure to completely remove all effects of the conviction at issue” as a
prerequisite to an individual being permitted to possess or receive a firearm. See,
e.g., Crank, 539 F.3d at 1245; Jennings v. Mukasey, 511 F.3d 894, 899 (9th Cir.
2007); Pennsylvania St. Police v. Drake, 304 A.3d 801, 806 (Pa. Commw. Ct.
2023); Bergman v. Caulk, 938 N.W.2d 248, 251 & n.3 (Minn. 2020). Although we
are not bound by these authorities, see State v. Muckerheide, 2007 WI 5, ¶7, 298
Wis. 2d 553, 725 N.W.2d 930, we find them useful to our analysis given the
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No. 2023AP70-FT
consistency with which courts have interpreted and applied § 921(a)(33)(B)(ii) and
the various interpretative principles those courts have used in their analyses that
comport with our principles in Kalal.15
¶28 In particular, the United States Court of Appeals for the Tenth Circuit
has reasoned that the terms “expunged” and “set aside” must be interpreted
synonymously so as to “require a complete removal of the effects of a conviction”
given: (1) the terms’ respective plain meanings; and (2) the structure of the statute.
See Crank, 539 F.3d at 1245.
¶29 “First, the plain meaning of ‘expunge’ and ‘set aside’ are nearly
equivalent.” Id. at 1245. “Expunge” is defined as “[t]o remove from a record …; to
erase or destroy.” Expunge, BLACK’S LAW DICTIONARY (11th ed. 2019); cf.
Expungement of record, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The removal
of a conviction (esp. for a first offense) from a person’s criminal record.”). “Set
aside” is defined as “[t]o annul or vacate (a judgment, order, etc.).” Set aside,
BLACK’S LAW DICTIONARY (11th ed. 2019). The plain meanings of the terms
“expunge”—as opposed to the “expungement of record”—and “set aside” indicate
that the relevant state procedure must do more than delete the evidence of the
underlying conviction. Rather, the plain meanings indicate that the state procedure
must “completely remove all effects of the conviction at issue.” Crank, 539 F.3d
at 1245.
15
Van Oudenhoven does not provide an alternative meaning of 18 U.S.C.
§ 921(a)(33)(B)(ii). Instead, he merely contests the interpretation provided by the DOJ.
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No. 2023AP70-FT
¶30 In addition, one of the few federal expungement statutes, 18 U.S.C.
§ 3607, dictates expungement for certain controlled substance offenses.16 Under
§ 3607, qualifying individuals found guilty of a controlled substance offense may
apply to a court to “enter an expungement order.” Sec. 3607(c). “The effect of the
order shall be to restore such person, in the contemplation of the law, to the status
he occupied before such arrest or institution of criminal proceedings.” Id. “[A]
conviction that is the subject of an expungement order under [§ 3607(c)], shall not
be considered a conviction for the purpose of a disqualification or a disability
imposed by law upon conviction of a crime, or for any other purpose.” Sec. 3607(b).
The law also provides that any records of the conviction are destroyed.
Sec. 3607(c). Consequently, federal expungement in the controlled substance
context completely removes the effects of a conviction, which comports with the
plain meanings of “expunged” and “set aside” described above.
¶31 Second, regarding the statute’s structure, the first portion of 18 U.S.C.
§ 921(a)(33)(B)(ii) lists “four state actions that would remove firearm
disability: expunging, setting aside, pardoning, or restoring civil rights.” Crank,
539 F.3d at 1245. The second portion of the statute (the “unless” clause) clearly
parallels the first portion of the statute; however, it addresses only expunging,
pardoning, and restoring civil rights. See id. Thus, “[t]he absence of the term ‘set
16
While the connection between 18 U.S.C. §§ 921(a)(33)(B)(ii) and 3607 may seem
attenuated at first glance, § 3607 appears to be the only federal statute authorizing expungement of
a conviction, as opposed to expungement of records. See United States v. Lucido, 612 F.3d 871,
874 (6th Cir. 2010); United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994). There are at least
two other federal expungement statutes; however, neither relate to expunging convictions. See 34
U.S.C. § 12592(d) (instructing the director of the FBI on the “expungement of [DNA] records”);
21 U.S.C. § 844(a)(j) (listing the “[e]xpungement procedures” related to civil penalties for the
possession of small amounts of controlled substances).
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No. 2023AP70-FT
aside’ [in the second portion] suggests that Congress felt that ‘expungement’ in the
‘unless’ clause covered both ‘set asides’ and ‘expungements.’” Id.¶32 We find further support for Crank’s interpretation in the manner in
which 18 U.S.C. § 921(a)(33)(B)(ii) states that “[a] person shall not be considered
to have been convicted of [a misdemeanor crime of domestic violence] if the
conviction has been expunged or set aside, or is an offense for which the person has
been pardoned or has had civil rights restored.” (Emphasis added.) The
emphasized portion contains two types of situations where a prior conviction does
not preclude a firearm purchase. The first type of situation involves a conviction
that was “expunged or set aside.” The second type of situation involves an offense
for which an individual was “pardoned or has had [his or her] civil rights restored.”
¶33 The United States Supreme Court has concluded that the restoration
of civil rights means that an individual has regained “the rights to vote, hold office,
and serve on a jury.” Logan, 552 U.S. at 28, 37 (defining “civil rights restored” as
that term is used in 18 U.S.C. § 921(a)(20)). A pardon is defined as “[t]he act or an
instance of officially nullifying punishment or other legal consequences of a crime.”
Pardon, BLACK’S LAW DICTIONARY (11th ed. 2019). Hence, given the plain
meanings described, the first portion of the emphasized language involves a
conviction itself, while the second portion involves the effects of a conviction.
Given the structure of § 921(a)(33)(B)(ii), the plain meanings of “expunged” and
“set aside,” and Congress’s use of “expungement” in 18 U.S.C. § 3607, we agree
with the Tenth Circuit’s analysis in Crank that those terms must be interpreted to
mean the same thing—namely, the state procedure in question must “completely
remove all effects of the conviction at issue.” See Crank, 539 F.3d at 1245.
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No. 2023AP70-FT
¶34 Van Oudenhoven argues in his reply brief, for the first time, that
Congress did not intend for “an expungement [to] be a ‘complete removal’ of the
effects of a conviction” because, pursuant to the “unless” clause, a “‘complete
removal’ would … be incomplete if it retained a firearms prohibition.” “This court
need not address arguments that are raised for the first time on appeal, or … raised
for the first time in the reply brief.” State v. Reese, 2014 WI App 27, ¶14 n.2, 353
Wis. 2d 266, 844 N.W.2d 396.
¶35 Even addressing the merits of Van Oudenhoven’s argument, the
“unless” clause acts as an exception to the first clause. The flaw in
Van Oudenhoven’s reasoning is apparent when considering pardons and the
restoration of civil rights. Both of those terms in 18 U.S.C. § 921(a)(33)(B)(ii)
require the effects of a conviction to be withdrawn, including a prohibition on an
individual’s right to possess or receive a firearm. If Van Oudenhoven’s
interpretation were correct, the applicability of the “unless” clause would contradict
the plain meanings of “pardoned” and “civil rights restored” because the post-
conviction actions would not restore an individual’s right to possess or carry a
firearm.
¶36 Pursuant to 18 U.S.C. § 921(a)(33)(B)(ii), an individual can be
pardoned under state law—i.e., have his or her punishment or other legal
consequences of a crime “completely nullified”—and that individual will not be
prohibited under 18 U.S.C. § 922(g)(9) from receiving or possessing a firearm
barring the applicability of the “unless” clause. See § 922(g)(9). Similarly, an
individual can have his or her civil rights restored under state law and not be
prohibited under § 922(g)(9) from receiving or possessing a firearm. As noted
above, “civil rights” in this context refers to the restoration of the right to vote, to
hold office, and to serve on juries. See Logan, 552 U.S. at 28. Barring the
17
No. 2023AP70-FT
applicability of the “unless” clause, “[i]f these are restored, then a conviction does
not carry federal firearms disabilities.”17 Buchmeier v. United States, 581 F.3d 561,
564 (7th Cir. 2009).
¶37 An individual can have his or her conviction expunged or set aside
under state law and not be prohibited under 18 U.S.C. § 922(g)(9) from receiving
or possessing a firearm unless expressly provided otherwise. In other words, the
terms expunged, set aside, pardoned, and restoration of civil rights all, by definition,
require state action that removes the prohibition on an individual from possessing
or receiving a firearm under federal law. Any of those state procedures would
become incomplete if they contained a prohibition on an individual from possessing
or receiving a firearm under federal law. The “unless” clause does not alter the plain
17
For example, in Wisconsin, the restoration of civil rights following the completion of a
felony sentence restores the right to vote and to serve on juries. See WIS. STAT. § 304.078; Moran
v. DOJ, 2019 WI App 38, ¶38 & n.13, 388 Wis. 2d 193, 932 N.W.2d 430 (stating that restoration
of civil rights does not include the ability to hold public office). However, the restoration of civil
rights pursuant to Wisconsin law does not lift the restriction on possessing or carrying firearms.
See WIS. STAT. § 941.29(1m). Thus, assuming for purposes of this example that civil rights
restoration under Wisconsin law meets the definition of civil rights restoration provided in 18
U.S.C. § 921(a)(33)(B)(ii), an individual who completes his or her felony sentence has had his or
her civil rights restored, however, the “unless” clause still bars the defendant from possessing or
carrying firearms. See also 78 Wis. Op. Att’y Gen. 22-23 (1989) (concluding that a pardon under
Wisconsin law does not contain a firearm prohibition unless otherwise stated).
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No. 2023AP70-FT
meanings in the first clause, and Van Oudenhoven’s interpretation would strip those
terms of their plain meanings.18
B. Wisconsin expungement
¶38 Wisconsin’s expungement law does not completely remove the
effects of the conviction in question. Therefore, an expunged conviction does not
constitute an “expunged or set aside” conviction under 18 U.S.C.
§ 921(a)(33)(B)(ii). WISCONSIN STAT. § 973.015(1m) governs expungement in
Wisconsin and states, in relevant part:
[W]hen a person is under the age of 25 at the time of the
commission of an offense for which the person has been
found guilty in a court for violation of a law for which the
maximum period of imprisonment is 6 years or less, the
court may order at the time of sentencing that the record be
expunged upon successful completion of the sentence if the
court determines the person will benefit and society will not
be harmed by this disposition.…
18
Some jurisdictions have held that the “unless” clause is a “notice” or
“anti-mousetrapping” provision, meaning that “a state may not employ language in discharging” a
former offender “into the misapprehension” that his or her “rights have been restored to a degree
that will permit him [or her] to possess firearms.” See United States v. Erwin, 902 F.2d 510, 512-13
(7th Cir. 1990) (interpreting the “unless” clause in 18 U.S.C. § 921(a)(2)). Under this reasoning,
“[e]ven if a state deems a person ‘convicted’ for purposes of its domestic law, if it sends a document
that seems to restore all civil rights the conviction does not count for federal purposes unless the
document warns the person about a lingering firearms disability.” Buchmeier v. United States,
581 F.3d 561, 566 (7th Cir. 2009).
To the extent that Van Oudenhoven argues that the circuit court’s order expunging his
misdemeanor conviction misled him to believe that his conviction was completely removed as if
there had been no judgment, we disagree. The court’s order simply stated what WIS. STAT.
§ 973.015 states; that is, the records of his misdemeanor conviction were removed. Further,
Van Oudenhoven does not contend that he had his civil rights restored—he was convicted of a
misdemeanor, not a felony, and could not have had his civil rights revoked to begin with.
19
No. 2023AP70-FT
(emphasis added); see also Braunschweig, 384 Wis. 2d 742, ¶19. “[W]hen
expunction is ordered, the clerk of court seals the case and destroys the court
records.” Braunschweig, 384 Wis. 2d 742, ¶19.
¶39 Our state supreme court recently articulated in Braunschweig that,
unlike vacatur, see WIS. STAT. § 973.015(2m),19 which “removes the fact of
conviction” and acts as if “there had been no judgment,” Wisconsin’s expungement
of a conviction merely deletes the evidence of the underlying conviction from court
records” and “does not invalidate the conviction,” Braunschweig, 384 Wis. 2d 742,
¶¶21-22 (emphasis added; citation omitted). In other words, § 973.015 permits
removing a conviction from a person’s criminal court record, see Expungement of
Record, BLACK’S LAW DICTIONARY (11th ed. 2019), but it does not completely
remove the effects of a conviction. Thus, “a conviction, even though expunged,
remains ‘an unvacated adjudication of guilt.’” Braunschweig, 384 Wis. 2d 742,
¶¶18, 25 (citing the definition of “conviction” in WIS. STAT. § 340.01(9r)).
¶40 Furthermore, WIS. STAT. § 973.015 does not prevent Wisconsin’s
executive branch from “maintaining case information” which “may assist [the
branch] in identifying suspects, determining whether a suspect might present a
threat to officer safety, investigating and solving similar crimes, anticipating and
disrupting future criminal actions, [and] informing decisions about arrest or pressing
charges.” Braunschweig, 384 Wis. 2d 742, ¶28 (quoting State v. Leitner, 2002 WI
77, ¶40, 253 Wis. 2d 449, 646 N.W.2d 341). Applying the Wisconsin expungement
statute, the court in Braunschweig held that an expunged second offense for
19
WISCONSIN STAT. § 973.015(2m) is applicable only to a conviction for an individual
who “was a victim of trafficking for the purposes of a commercial sex act.” Id.
20
No. 2023AP70-FT
operating while intoxicated constitutes a prior conviction under WIS. STAT.
§ 343.307(1). Braunschweig, 384 Wis. 2d 742, ¶2.
¶41 Faced with a similar expungement law, the United States Court of
Appeals for the Ninth Circuit held that an expungement under California law did
not satisfy the meaning of “expunged” in 18 U.S.C. § 921(a)(33)(B)(ii).
See Jennings, 511 F.3d at 896. In Jennings, an FFL sought to renew his license.
The ATF denied his application after concluding that his expungement for a
misdemeanor domestic assault in California still constituted a conviction. Id.; see
also 18 U.S.C. § 923(d)(1)(B) (prohibiting a prospective firearm seller from
becoming an FFL if the seller is prohibited from transporting, shipping, or receiving
firearms under 18 U.S.C. § 922(g)).
¶42 In rejecting the FFL’s argument that his conviction was “expunged”
under 18 U.S.C. § 921(a)(33)(B)(ii), the court articulated that expungement under
California law did “not render the conviction a legal nullity. Instead, it provides
that … the defendant is ‘released from all penalties and disabilities resulting from
the offense.’” Jennings, 511 F.3d at 898 (citation omitted). According to the court,
the expungement law still requires the ex-offender to disclose the conviction “in any
questionnaire or application for public office [or] for licensure by any state or local
agency.” Id. at 898-99 (alteration in original; citation omitted). The court
concluded that the expungement law did not meet the definition of “expungement”
for purposes of § 921(a)(33)(B)(ii), and the FFL was properly denied license
renewal. Jennings, 511 F.3d at 899.
¶43 Like California’s expungement law analyzed in Jennings, an
expungement under Wisconsin law does not “expunge[] or set aside” a conviction
as those terms are used in 18 U.S.C. § 921(a)(33)(B)(ii) because the statute merely
21
No. 2023AP70-FT
removes evidence of the conviction from court files. This conclusion is evident in
the circuit court’s order granting Van Oudenhoven’s expungement petition, wherein
the court instructed the clerk of court “to expunge the court’s record of the
conviction.” Moreover, the executive branch is permitted to access those records to
determine, among other things, whether an individual is allowed to purchase a
handgun in Wisconsin. See WIS. ADMIN. CODE §§ Jus 10.06(2), 10.03(11).
¶44 It follows, then, that Van Oudenhoven’s Wisconsin expungement did
not “completely remove all effects” of his misdemeanor conviction or “render the
conviction a legal nullity.” See Crank, 539 F.3d at 1245; Jennings, 511 F.3d at 898(citation omitted). Van Oudenhoven’s conviction remains an “unvacated
adjudication of guilt,” see WIS. STAT. § 340.01(9r), and, accordingly, the DOJ was
able to access his records and deny his application to purchase a handgun in
Wisconsin. In short, the DOJ did not erroneously interpret WIS. STAT. § 973.015 or
18 U.S.C. § 921(a)(33)(B)(ii).
CONCLUSION
¶45 The DOJ is authorized by the State of Wisconsin to determine whether
an individual is prohibited from purchasing a handgun in Wisconsin. Similarly, the
DOJ is authorized by the federal government to determine whether an individual is
prohibited from purchasing a firearm in Wisconsin. Under this latter authorization,
the DOJ was permitted to deny Van Oudenhoven’s handgun purchase because the
“receipt of a firearm by [Van Oudenhoven] would violate 18 U.S.C. [§ ]922,”
despite the fact that his misdemeanor conviction was expunged under Wisconsin
law. See 28 C.F.R. § 25.6(g)(2). Consistent with the meaning of “expunged or set
aside” in 18 U.S.C. § 921(a)(33)(B)(ii) and the effect of Wisconsin expungement
espoused in Braunschweig, Van Oudenhoven’s conviction was not completely
22
No. 2023AP70-FT
removed of all effects and remains valid for purposes of denying him permission to
purchase a firearm in Wisconsin under federal law. We therefore affirm the circuit
court’s decision upholding the DOJ’s decision to deny Van Oudenhoven’s purchase.
By the Court.—Order affirmed.
23